M/S EXL CAREERS AND ANOTHER versus FRANKFINN AVIATION SERVICES PRIVATE LIMITED

[2020] 6 S.C.R. 289

M/S EXL CAREERS AND ANOTHER

FRANKFINN AVIATION SERVICES PRIVATE LIMITED

(Civil Appeal No. 2904 of 2020)

AUGUST 05, 2020

[R. F. NARIMAN, NAVIN SINHA ANDINDIRA BANERJEE, JJ.]

Code of Civil Procedure, 1908:

Order VII Rules 10 and 10A – Return of the Plaint – To bepresented in the Court having appropriate jurisdiction – Whetherthe suit to proceed de novo or to continue from the stage where itwas pending at the time of return of the plaint – Held: Where thesuit is returned to be presented in the Court of appropriatejurisdiction, the suit shall proceed de novo.

Constitution of India:

Arts. 136 and 142 – Suit for recovery – Territorial jurisdictionquestioned – Objection rejected – Later territorial jurisdictionobjected to on the basis of exclusionary jurisdiction clause in theagreement between the parties – Objection rejected – In RevisionHigh Court directed return of the file, on the ground of theexclusionary jurisdiction clause, to the Court of appropriatejurisdiction – Civil Judge transferred the file to the Court havingjurisdiction – In Revision High Court rejected the contention of denovo trial raised by the defendant – Appeal to Supreme Court –Held: Though High Court was not correct in refusing de novo trial,in the facts of the case, in order to do complete justice between theparties, in exercise of power of Arts. 136 and 142 impugned orderis not set aside – Code of Civil Procedure, 1908 – Order VII rr. 10and 10 A.

Disposing of the appeal, the Court

HELD: 1.1 It is no more res-integra that in dispute betweenparties where two or more courts may have jurisdiction, it isalways open for them by agreement to confer exclusive jurisdictionby consent on one of the two courts. Clause 16B of the agreement

Abetween the parties leaves no doubt that the parties clearlyindicated that it was only the court at Delhi which shall haveexclusive jurisdiction with regard to any dispute concerning thefranchise agreement and no other court would have jurisdictionover the same. In that view of the matter, the presentation of theplaint at Gurgaon was certainly not before court havingBjurisdiction in the matter. [Para 13][297-C-E]

1.2 The mere use of the words ‘return the file’ by the HighCourt in Revision in the order dated 05.09.2017 cannot enlargethe scope of jurisdiction under Order VII Rule 10 CPC to meanthat the High Court has directed so with the intention forCcontinuance of the suit. Firstly, that objection was expresslyrejected. Secondly the order itself states that the file be returnedunder Order VII Rule 10 and 10A CPC. Clearly what the HighCourt intended was the return of the plaint. [Para 11][296-F-G]

1.3 There is no contradiction in the law as laid down inD*Modern Construction case pronounced after consideration of thelaw and precedents requiring reconsideration in view of anyconflict with **Joginder Tuli case. *Modern Construction case laysdown the correct law. [Para 17][299-D]

1.4 Order VII Rule 10-A was inserted by the Code of CivilEProcedure (Amendment) Act, 1976 (with effect from 01.02.1977)in order to obviate the necessity of serving summonses on thedefendants where the return of plaint is made after the appearanceof the defendant in the suit. Also, under sub-rule (3) all that theCourt returning the plaint can do, notwithstanding that it has noFjurisdiction to try the suit is to fix date of appearance in theCourt where plaint is to be filed after its return. The language ofOrder VII Rule 10-A is in marked contrast to the language ofSection 24(2) and Section 25(3) of the Code of Civil Procedure.In cases dealing with transfer of proceedings from Court havingjurisdiction to another Court, the discretion vested in the CourtGby Sections 24(2) and 25(3) either to retry the proceedings orproceed from the point at which such proceeding was transferredor withdrawn, is in marked contrast to the scheme under OrderVII Rule 10 read with Rule 10-A where no such discretion is

given and the proceeding has to commence de novo. [Paras 19,20 and 21][299-F-H; 300-A, C-D, G-H]

Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013)9 SCC 32 : [2013] 7 SCR 581; State of West Bengal v.Associated Contractors (2015) 1 SCC 32 : [2014] 10SCR 426; Amar Chand Inani v. The Unionof India(1973) 1 SCC 115 : [1973] 2 SCR 684; *Oil and naturalGas Corporation Ltd. v. Modern Construction & Co.(2014) 1 SCC 648 : [2013] 10 SCR 466; RamduttRamkissen Dass v. E.D. Sassoon & Co. AIR 1929 PC103 : Hanamanthappa v. Chandrashekharappa, (1997)9 SCC 688 :[1997] 1 SCR 846; Harshad ChimanlalModi (II) v. DLF Universal Ltd.(2006) 1 SCC 364 :[2005] 5 Suppl. SCR 740 – reliedon.

**Joginder Tuli v. S.L. Bhatia (1997) 1 SCC 502 :[1996] 7 Suppl. SCR 221 – held per-in-curium anddistinguished.

Oriental Insurance Company Ltd. v. Tejparas Associatesand Exports Pvt. Ltd. [2019] 9 SCC 435 – overruled.

R.K. Roja v. U.S. Rayudu (2016) 14 SCC 275 : [2016]3 SCR 221 – held inapplicable.

2. In the peculiar facts and circumstances of the presentcase, because the appellant did not raise the objection underclause 16B of the agreement at the very first opportunity, thefirst order of rejection attained finality, the objection under clause16B was raised more as an after-thought, the second applicationunder Order VII Rule 10 CPC had to be preferred by therespondent, that pleadings of the parties have been completed,evidence led, and that the matter was fixed for final argument,despite having concluded that the impugned order is notsustainable in view of the law laid down in the *ModernConstruction case, in exercise of discretionary jurisdiction underArticle 136 of the Constitution and in order to do complete andsubstantial justice between the parties under Article 142 of theConstitution, in the peculiar facts and circumstances of the case,nonetheless the impugned order of the High Court is not setaside. [Para 27][300-C-E]

APenu Balakrishna Iyer v. Ariya M. Ramaswami IyerAIR1965 SC 95 : [1964] 7 SCR 49; Balraj Taneja v. SunilMadan (1999) 8 SCC 396 : [1999] 2 Suppl. SCR 258;ONGC Ltd. v. Sendhabhai Vastram Patel (2005) 6 SCC454 : [2005] 2 Suppl. SCR 448; Shin-Etsu ChemicalCo. Ltd. (2) v. Vindhya Telelinks Ltd., (2009) 14 SCCB16; Karam Kapahi v. Lal Chand Public Charitable Trust(2010) 4 SCC 753 : [2010] 4 SCR 422 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2904of 2020.

GFrom the Judgment and Order dated 13.03.2018 of the High Courtof Punjab and Haryana at Chandigarh in CR No. 1602 of 2018.

Manoj Swarup, P. S. Patwalia, Sr. Advs., Ankit Swarup, NaveenKumar, Jawad Tariq, Neelmani Pant, Ms. Vidisha Swarup, KulvinderSingh Kohli, Ms. Meenakshi Midha, Kapil Midha, Ms. AbhivandanaH

Chowdhury, Ms. Pritika Juneja, Amandeep Singh Bhullar, ChanderShekhar Ashri, Advs. for the appearing parties.

The Judgment of the Court was delivered by

NAVIN SINHA, J.

1. Leave granted.

2. The present appeal has been placed before us on referenceby two Judge Bench opining perceived conflict between two DivisionBench decisions in Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502and Oil and Natural Gas Corporation Ltd. v. Modern Construction& Co., (2014) 1 SCC 648. The question of law we are required to answeris that if plaint is returned under Order VII Rule 10 and 10A of theCode of Civil Procedure 1908, (hereinafter called as “the Code”) forpresentation in the court in which it should have been instituted, whetherthe suit shall proceed de novo or will it continue from the stage where itwas pending before the court at the time of returning of the plaint. Theorder of reference also leaves it open for consideration if the conduct ofthe appellant disentitles it to any relief notwithstanding the decision onthe issue of law.3. The respondent filed suit for recovery against the appellantarising out of franchise agreement dated 24.03.2004, before the CivilJudge (Sr. Division) at Gurgaon. In view of the exclusion clause in theagreement, the plaint was returned holding that the court at Gurgaonlacked territorial jurisdiction and that the court at Delhi alone hadjurisdiction in the matter. The High Court by the impugned order dated13.03.2018 has held that the suit at Delhi shall proceed from the stage atwhich it was pending at Gurgaon before return of the plaint and not denovo. Aggrieved, the appellant preferred the present appeal. Furtherproceedings were stayed on 13.07.2018 culminating in the order ofreference.

4. Shri Manoj Swarup, learned senior counsel appearing on behalfof the appellant, submitted that there is no conflict between the decisionsin Joginder Tuli (supra) and Modern Construction (supra) requiringconsideration by larger Bench. The latter lays down the correct lawthat the suit will have to proceed de novo at Delhi and cannot be continuedfrom the earlier stage at Gurgaon. Joginder Tuli (supra) cannot haveany precedential value not being based on consideration of the law, buthaving been passed more in the facts of that case.

A5. Shri Swarup submitted that the High Court erred in notappreciating that it was not exercising transfer jurisdiction under Section24 of the Code. The plaint could be returned at any stage of the suitunder Order VII Rule 10 and 10A. The fact that the pleadings andevidence may have concluded before the Gurgaon court wasinconsequential. The suit was filed on 06.01.2011. The appellant hadBpreferred the objection under Order VII Rule 10 promptly on 26.08.2011.Order XVIII Rule 15 also could not be invoked in view of the nature ofjurisdiction conferred under Rule 10 for return of the plaint. Rule 10A isonly sequiturwith regard to the procedure to be followed for thesame. It cannot be interpreted as providing for continuation of the suit.CThe High Court in the first revisional order dated 05.09.2017 had rejectedthe objection with regard to the advanced stage at which the suit was atGurgaon. The mere use of the words ‘return the file’ are irrelevant andcannot be construed as enlarging the scope of jurisdiction under OrderVII Rule 10. The order attained finality as no appeal was preferredagainst the same. Significantly under Order VII Rule 10A fresh summonsDhad to issue upon presentation of the plaint before the court of competentjurisdiction. Shri Swarup in this context referred to Order IV Rule 1 withregard to the institution of the suit by presentation of plaint and issuanceof summons under Order V Rule 1 to contend that under Rule 10Awhen summons are issued by the new court where the plaint is presentedEthe proceedings go back to the inception of the suit by institution.

6. In support of his submission that the suit has necessarily toproceed de novo on return of the plaint, he relied upon RamduttRamkissen Dass vs. E.D. Sassoon & Co., AIR 1929 PC 103; AmarChand Inani vs. The Union of India, (1973) 1 SCC 115; HarshadFChimanlal Modi (II) vs. DLF Universal Ltd., (2006) 1 SCC 364 andHasham Abbas Sayyad vs. Usman Abbas Sayyad, (2007) 2 SCC 355,to submit that the institution of the suit at Gurgaon being coram nonjudice the suit had necessarily to commence de novo at Delhi.

7. Shri P.S. Patwalia, learned senior counsel appearing for theGrespondent, submitted that the special leave petition suffers fromsuppression of material facts. Had the materials placed in the counteraffidavit been brought to the attention of the court perhaps the specialleave petition may not have been entertained. The appellant in his firstobjection did not raise the ground under the exclusion clause 16B of theagreement but limited it to the grounds that no business was carried onH

at Gurgaon and that defendant no.2 did not reside there also. The firstorder of rejection dated 12.03.2015 has not been annexed to the appeal.Thereafter jurisdiction was framed as preliminary issue which wasagain decided in favour of the respondent on 06.09.2016. The revisionby the appellant having been allowed by the High Court on 05.09.2017,it did not take any steps for having the plaint retuned to the respondent.It was left for the respondent to file fresh application under Order VIIRule 10 praying for transfer of the entire judicial file from Gurgaon toDelhi considering the advanced stage of the suit which was allowed bythe Civil Judge and affirmed in the impugned order by the High Court.

8. Shri Patwalia next submitted that the High Court on 05.09.2017had consciously directed for return of the file. Nothing precluded theHigh Court from directing the return of the plaint. The Trial Court hasjustifiably reasoned that the order of the High Court for return of the filewas based on the premise of the advanced stage of the suit forcontinuation of the same at Delhi, as otherwise it would be travesty ofjustice if the suit was to proceed de novo at Delhi. The High Courtcorrectly affirmed the same by the impugned order. The present wasnot case where the Gurgaon court lacked complete jurisdiction. Therespondent has been non suited at Gurgaon only in view of theexclusionary clause at 16B of the franchise agreement. It shall be aquestion on the facts of each case, if the trial should proceed afresh orcontinue from the earlier stage and the matter could not be put in astraight jacket. The present being case of overlapping jurisdictions itwould be travesty of justice and will cause great injustice and prejudiceto the respondent if the suit is directed to proceed de novo at Delhi. ShriPatwalia relied upon R.K. Roja vs. U.S. Rayudu, (2016) 14 SCC 275and Oriental Insurance Company Ltd. vs. Tejparas Associates andExports Pvt. Ltd., (2019) 9 SCC 435, to submit that the latter also followsJoginder Tuli (supra).

9. We have considered the submission on behalf of the partiesand considered the materials on record. The franchise agreement wasexecuted between the parties at New Delhi on 24.03.2004 for runningcourses in Aviation, Hospitality and travel Management at Meerut inaccordance with the prescriptions and standards of the respondent.Clause 16B of the agreement stipulated as follows:

“B. JURISDICTION

AOnly Courts in Delhi shall have exclusive jurisdiction to settle alldisputes and differences arising out of the AGREEMENT, whetherduring its term or after expiry/earlier termination thereof.”

10. The respondent on 06.01.2011 instituted suit before the CivilJudge (Sr. Division) at Gurgaon against the appellant for recovery ofBRs.23,11,190/-. The appellant filed an application under Order VII Rule10 CPC on 26.08.2011 contending that the Gurgaon court had no territorialjurisdiction as it did not carry on any business within its jurisdiction andneither was it resident, requiring the plaint to be returned to therespondent. No objection was raised under clause 16B of the agreement.The Civil Judge, Gurgaon on 12.03.2015 rejected the objection opiningCthat it could not be decided summarily and was required to be framed asa preliminary issue. The appellant then filed its written statement andthe respondent its replication. Issues in the suit were framed on 01.10.2015inadvertently ignoring the earlier order leading to framing of thepreliminary issue on 01.10.2015 with regard to jurisdiction. The appellantDoffers no explanation why the objection under clause 16B of theagreement was not raised in its application dated 26.08.2011 under OrderVII Rule 10 CPC.

11. The Civil Judge Gurgaon by his order dated 06.09.2016 rejectedthe argument with regard to exclusive jurisdiction at Delhi under clauseE16B of the Agreement. The High Court in revision on 05.09.2017 setaside the order of the Civil Judge dated 6.9.2016 holding that in view ofclause 16B of the franchise agreement, the Gurgaon court lackedterritorial jurisdiction directing return of the file. The submission of therespondent with regard to the advanced stage of the suit at Gurgaonwas rejected. Prior thereto, the suit had made substantive progress as inFthe meantime evidence of the parties had been closed and the matterhas been fixed for final argument on 01.06.2017. We are of the consideredopinion that the mere use of the words ‘return the file’ in the order dated05.09.2017 cannot enlarge the scope of jurisdiction under Order VIIRule 10 to mean that the High Court has directed so with the intentionGfor continuance of the suit. Firstly, that objection was expressly rejected.Secondly the order itself states that the file be returned under Order VIIRule 10 and 10A of the Code. Clearly what the High Court intendedwas the return of the plaint.

12. Thereafter it was left for the respondent who moved anHapplication on 11.10.2017 before the Civil Judge at Gurgaon that in the

peculiar facts of the case, the advanced stage at which the proceedingswere at Gurgaon, it would be in the interest of justice that the entirejudicial file be transferred to the court having jurisdiction at Delhi, whichwas allowed by the Civil Judge Gurgaon on 14.02.2018 noticing that theHigh Court in revision had directed for transfer of the file. In the freshrevision preferred by the respondent against the order, the High Courtby the impugned order dated 13.03.2018 declined to interfere and rejectedthe contention of the appellant for de novo trial at Delhi. We havereferred to the facts of the case with brevity to notice the conduct of theparties and all other relevant aspects to be kept in mind while passingfinal orders.13. It is no more res-integra that in dispute between partieswhere two or more courts may have jurisdiction, it is always open forthem by agreement to confer exclusive jurisdiction by consent on one ofthe two courts. Clause 16B of the agreement extracted above leaves usin no doubt that the parties clearly indicated that it was only the court atDelhi which shall have exclusive jurisdiction with regard to any disputeconcerning the franchise agreement and no other court would havejurisdiction over the same. In that view of the matter, the presentation ofthe plaint at Gurgaon was certainly not before court having jurisdictionin the matter. This Court considering similar clause restrictingjurisdiction by consent in Swastik Gases (P) Ltd. vs. Indian Oil Corpn.Ltd.,(2013) 9 SCC 32, observed as follows:

“32. ….It is fact that whilst providing for jurisdiction clause inthe agreement the words like “alone”, “only”, “exclusive” or“exclusive jurisdiction” have not been used but this, in our view, isnot decisive and does not make any material difference. Theintention of the parties—by having Clause 18 in the agreement—is clear and unambiguous that the courts at Kolkata shall havejurisdiction which means that the courts at Kolkata alone shallhave jurisdiction. It is so because for construction of jurisdictionclause, like Clause 18 in the agreement, the maxim expressiounius est exclusio alterius comes into play as there is nothing toindicate to the contrary. This legal maxim means that expressionof one is the exclusion of another. By making provision that theagreement is subject to the jurisdiction of the courts at Kolkata,the parties have impliedly excluded the jurisdiction of other courts.Where the contract specifies the jurisdiction of the courts at

Aparticular place and such courts have jurisdiction to deal with thematter, we think that an inference may be drawn that partiesintended to exclude all other courts. clause like this is not hit bySection 23 of the Contract Act at all. Such clause is neitherforbidden by law nor it is against the public policy. It does notoffend Section 28 of the Contract Act in any manner.”B

14. This was reiterated in State of West Bengal vs. AssociatedContractors,(2015) 1 SCC 32, holding that presentation of the plaint ina court contrary to the exclusion clause could not be said to be properpresentation before the court having jurisdiction in the matter.

C15. That brings us to the order of the reference to be answeredby us. In Joginder Tuli (supra) the original court lost jurisdiction byreason of the amendment of the plaint. The Trial Court directed it to bereturned for presentation before the District Court. This Court observedas follows:

D“5. … Normally, when the plaint is directed to be returned forpresentation to the proper court perhaps it has to start from thebeginning but in this case, since the evidence was already adducedby the parties, the matter was tried accordingly. The High Courthad directed to proceed from that stage at which the suit stoodtransferred. We find no illegality in the order passed by the HighECourt warranting interference.”

To our mind, the observations are very clear that the suit has toproceed afresh before the proper court. The directions came to be mademore in the peculiar facts of the case in exercise of the discretionaryjurisdiction under Article 136 of the Constitution. We may also noticeFthat it does not take into consideration any earlier judgments includingAmar Chand Inani vs. The Union of India (supra) by Bench ofthree Honourable Judges. There is no discussion of the law either andtherefore it has no precedential value as laying down any law.

16. Modern Construction(supra), referred to the consistentGposition in law by reference to Ramdutt Ramkissen Dass vs. E.D.Sassoon & Co., Amar Chand Inani vs. The Union of India,Hanamanthappa vs. Chandrashekharappa, (1997) 9 SCC 688,Harshad Chimanlal Modi (II) (supra) and after also noticing JoginderTuli (supra), arrived at the conclusion as follows:

“17. Thus, in view of the above, the law on the issue can besummarised to the effect that if the court where the suit isinstituted, is of the view that it has no jurisdiction, the plaint is tobe returned in view of the provisions of Order 7 Rule 10 CPC andthe plaintiff can present it before the court having competentjurisdiction. In such factual matrix, the plaintiff is entitled toexclude the period during which he prosecuted the case beforethe court having no jurisdiction in view of the provisions of Section14 of the Limitation Act, and may also seek adjustment of courtfee paid in that court. However, after presentation before thecourt of competent jurisdiction, the plaint is to be considered as afresh plaint and the trial is to be conducted de novo even if it stoodconcluded before the court having no competence to try the same.”

Joginder Tuli (supra) was also noticed in Harshad ChimanlalModi (II) (supra) but distinguished on its own facts.

17. We find no contradiction in the law as laid down in ModernConstruction (supra) pronounced after consideration of the law andprecedents requiring reconsideration in view of any conflict with JoginderTuli (supra). Modern Construction (supra) lays down the correct law.We answer the reference accordingly.

18. We regret our inability to concur with Oriental InsuranceCompany Ltd. (supra),relied upon by Mr. Patwalia, that in pursuanceof the amendment dated 01-02-1977 by reason of insertion of Rule 10Ato Order VII, it cannot be said that under all circumstances the return ofa plaint for presentation before the appropriate court shall be consideredas fresh filing, distinguishing it from Amar Chand Inani (supra). Theattention of the Court does not appear to have been invited to ModernConstruction (supra) and the plethora of precedents post the amendment.

19. Order VII Rule 10-A, as the notes on clauses, indicates wasinserted by the Code of Civil Procedure (Amendment) Act, 1976 (witheffect from 01.02.1977) for the reason:

“New Rule 10-A is being inserted to obviate the necessity ofserving summonses on the defendants where the return of plaintis made after the appearance of the defendant in the suit.”

Also, under sub-rule (3) all that the Court returning the plaint cando, notwithstanding that it has no jurisdiction to try the suit is:

300SUPREME COURT REPORTS

A“10A. Power of Court to fix date of appearance in theCourt where plaint is to be filed after its return.

xxx xxx xxx

(3) Where an application is made by the plaintiff under sub-rule(2), the Court shall, before returning the plaint and notwithstandingBthat the order for return of plaint was made by it on the groundthat it has no jurisdiction to try the suit,—

(a) fix date for the appearance of the parties in the Court inwhich the plaint is proposed to be presented, and

C(b) give to the plaintiff and to the defendant notice of such datefor appearance.”

20. The language of Order VII Rule 10-A is in marked contrast tothe language of Section 24(2) and Section 25(3) of the Code of CivilProcedure which read as under:D“24. General power of transfer and withdrawal.

xxx xxx xxx

(2) Where any suit or proceeding has been transferred orwithdrawn under sub-section (1), the Court which is thereafter totry or dispose of such suit or proceeding may, subject to any specialEdirections in the case of an order of transfer, either retry it orproceed from the point at which it was transferred or withdrawn.

25.Power of Supreme Court to transfer suits, etc.

xxx xxx xxxF(3) The Court to which such suit, appeal or other proceeding istransferred shall, subject to any special directions in the order oftransfer, either retry it or proceed from the stage at which it wastransferred to it.”

21. The statutory scheme now becomes clear. In cases dealingGwith transfer of proceedings from Court having jurisdiction to anotherCourt, the discretion vested in the Court by Sections 24(2) and 25(3)either to retry the proceedings or proceed from the point at which suchproceeding was transferred or withdrawn, is in marked contrast to thescheme under Order VII Rule 10 read with Rule 10-A where no suchdiscretion is given and the proceeding has to commence de novo.H

22. For all these reasons, we hold that Oriental Insurance Co.(supra) does not lay down the correct law and over-rule the same. R.K.Roja (supra) has no direct relevance to the controversy at hand.

23. That brings us to question with regard to the nature of theorder to be passed in the facts and circumstances of the present case.In Penu Balakrishna Iyer vs. Ariya M. Ramaswami Iyer, AIR 1965SC 195, this court observed as follows:

“7. …The question as to whether the jurisdiction of this Courtunder Article 136 should be exercised or not, and if yes, on whatterms and conditions, is matter which this Court has to decideon the facts of each case.”

24. InBalraj Taneja v. Sunil Madan, (1999) 8 SCC 396 it wasobserved as follows :-

“47….It is true that the jurisdiction under Article 136 of theConstitution is discretionary jurisdiction and notwithstanding thata judgment may not be wholly correct or in accordance with law,this Court is not bound to interfere in exercise of its discretionaryjurisdiction….”

25. In ONGC Ltd. vs. Sendhabhai Vastram Patel, (2005) 6 SCC454, it was observed:

“23. It is now well settled that the High Courts and the SupremeCourt while exercising their equity jurisdiction under Articles 226and 32 of the Constitution as also Article 136 thereof may notexercise the same in appropriate cases. While exercising suchjurisdiction, the superior courts in India may not strike down evena wrong order only because it would be lawful to do so. Adiscretionary relief may be refused to be extended to the appellantin given case although the Court may find the same to be justifiedin law.”

26. The nature of jurisdiction under Article 136 of the Constitutionwas again considered in Shin-Etsu Chemical Co. Ltd. (2) vs. VindhyaTelelinks Ltd., (2009) 14 SCC 16. In Karam Kapahi vs. Lal ChandPublic Charitable Trust,(2010) 4 SCC 753, it was observed as follows:

“65. The jurisdiction of this Court under Article 136 of theConstitution is basically one of conscience. The jurisdiction is

[2020] 6 S.C.R.

Aplenary and residuary in nature. It is unfettered and not confinedwithin definite bounds. Discretion to be exercised here is subjectto only one limitation and that is the wisdom and sense of justiceof the Judges (see Kunhayammed vs. State of Kerala, (2000) 6SCC 359). This jurisdiction has to be exercised only in suitablecases and very sparingly as opined by the Constitution Bench ofBthis Court in Pritam Singh vs. State, AIR 1950 SC 169…”

27. In the peculiar facts and circumstances of the case, becausethe appellant did not raise the objection under clause 16B of the agreementat the very first opportunity, the first order of rejection attained finality,the objection under clause 16B was raised more as an after-thought, theCsecond application under Order VII Rule 10 had to be preferred by therespondent, that pleadings of the parties have been completed, evidenceled, and that the matter was fixed for final argument on 03.07.2017, weare of the considered opinion that despite having concluded that theimpugned order is not sustainable in view of the law laid down in theDModern Construction (supra), in exercise of our discretionary jurisdictionunder Article 136 of the Constitution and in order to do complete andsubstantial justice between the parties under Article 142 of theConstitution in the peculiar facts and circumstances of the casenonetheless we decline to set aside the impugned order of the HighCourt dated 13.03.2018.E

28. The appeal stands disposed of.

Kalpana K. Tripathy

Appeal disposed of.