Jammu & Kashmir High Court
Chander Kishore Gulhati vs Sh. Virinder Kishore Gulhati And Ors. on 24 November, 1994
Equivalent citations: AIR1996J&K14, AIR 1996 JAMMU AND KASHMIR 14
JUDGMENT Gupta, J.
1. This appeal under Clause 12 of Letters Patent arises out of an order passed by a learned single Judge of this Court in an application relating to the grant of temporary injunction (CMP No. 86/94) arising out of Civil Original Suit No. 35 of 1994. Brief facts leading to the filing of this appeal are that the appellant herein Shri Chander Kishore Gulhati filed a civil original suit against the respondents for partition of the properties mentioned in the title of the suit Which included the firm M/s. C. L. Gulhati and Sons owning the National Garage Building at B.C. Road, Jammu and land and structure at Gangyal, Jammu. The rest of the properties may be described as under :--
(i) Flat No. 12A at Vandana Building, New Delhi, (ii) Saraswati Real Estate -- 50% holding
in Sandeep Building, Bombay by arrangement with G & N Construction, Bombay,
(iii) Palam Motels-Land at Bijsasan with Project for Motel property,
(iv) Samrat Builders and CVS Builders --owning Stutee Apartment, Bank Street, Karol Bagh, New Delhi, and 4-D, Nizamud-din East.
2. Along with the filing of suit, the appellant also filed an application for the grant of ad-interim injunction, being CMP No. 86/ 94 for restraining the defendants in the suit from selling, alienating or transferring the ownership of the properties or changing their shape in any manner pending disposal of the suit. It was alleged in the application that the defendants were bent upon to sell, alienate, transfer or change the shape of the properties under dispute which were alleged to be joint Hindu family's properties and which were liable to be partitioned, as prayed for in the plaint, and in case the defendants were not restrained from doing so, the plaintiff would suffer irreparable loss and injury which could not be compensated by any means. Objections to this application appear to have been filed on behalf of defendants Nos. 21 and 22 only. Written statement on behalf of defendants Nos. 1 to 5 as also written submissions on behalf of defendants Nos. 21 and 22 were also filed in answer to the plaint on the prayer of the plaintiff. In the written statement filed on behalf of defendants Nos. 1 to 5, a preliminary objection was raised regarding the lack of jurisdiction in this Court to try the suit on the ground that the properties, the subject matter of the suit mainly were situated in Delhi and Bombay and in terms of Section 16 of the Code of Civil Procedure, this Court did not have the jurisdiction to try the suit, merely because one property was situated in Jammu and Kashmir State. On 24th March, 1993, when the civil suit was registered, an ex parte ad-interim injunction was granted in the application for temporary injunction (CMP No. 86/94) whereby it was directed by a single Bench of this Court that subject to objections and till further orders, status-quo shall be maintained, After the parties had filed their pleadings, as noticed above and after hearing them on the question of the grant of temporary injunction or otherwise, and in the light of specific objection taken by defendants regarding the lack of jurisdiction, the learned single Judge passed the order under appeal on 9 Sept., 1994 whereby he disposed of CMP No. 86/94 by modifying the ex parte ad-interim order dated March 24, 1994 to the extent that status-quo, till final disposal of the suit would be maintained only with respect to those properties which are situate within the territorial limits of Jammu & Kashmir State and so far as those properties which were outside Jammu & Kashmir State, status-quo order would stand vacated. The main thrust which formed the basis of passing of aforesaid order, rather the only one, as will be noticed was that the suit for partition could be filed in Jammu & Kashmir High Court only if the entire property, the subject matter of the suit was situated within the State of J. & K. and that this Court could not pass order of temporary injunction which related to property which is situated outside the limits of J. & K. State. The operative part of the order which deals with this question reads as under :--
"I have considered the matter. On a prima facie consideration of Sections 16 & 17 of the State Act I find that asuit for partition can be filed in this Court only if the property is situate within the State of Jammu and Kashmir. This Court cannot pass an order of temporary injunction which relates to property which is situate outside the State of Jammu and Kashmir. I am afraid that in case I pass an order relating to property situate out-side the State that order will not be binding upon whom it is directed."
3. The appellant has filed this appeal challenging the aforesaid order of the learned single Judge on the ground that the order suffers from error apparent on its face and that the learned single Judge did not properly interpret Section 17 of the Code of Civil Procedure and perhaps read Section 16 of the Code in isolation to hold that this Court did not have any jurisdiction to entertain and try suit in respect of the properties which were situated outside Jammu & Kashmir State. In support of his submission, Mr. HL Bhagotra, learned counsel appearing for the appellant referred a Full Bench judgment of this Court in the case of Murari Lal Saraf v. Firm Bhagwan Das Gurdyal reported in AIR 1955 J. & K. 5 and a Division Bench judgment of Delhi High Court in the case of Dewan Izzat Rai Nanda v. Dewan Iqbal Nath Nanda reported in AIR 1981 Delhi 262.
4, Learned counsel appearing for respondents on the other hand defended the order under appeal and submitted that the learned single Judge took a correct view of the provisions contained in C.P.C. in holding that this Court did not have the jurisdiction to try the suit. Mr. AV Gupta learned counsel appearing for respondents relied upon the following three judgments in support of his contention that the suit was not maintainable in this Court on the ground of lack of territorial jurisdiction :--
(i) Raja Setrucharlu Ramabhadra Raju Bahadur v. Maharaja of Jeypore, AIR 1919 Privy Council 150, (2) Nilkant Balwant Natu v. Vidya Narasinh Bharathi Swami, AIR 1930 Privy Council 188, (3) Nrisingha Charan Nandy Choudhry v. Rajniti Prasad Singh, AIR 1936 Privy Council 189.
5. Sections 16 and 17 of the Code of Civil . Procedure reads as under" :--
"16. Suits to be instituted where subject-matter situate. -- Subject to the pecuniary or other limitations prescribed by any law, suits --
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate :
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.
Explanation. -- In this section "property" means property situate in the State.
17. Suits for immovable property situate within jurisdiction of different Courts. --Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate :
Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court."
6. The expression "foreign Court" has been defined in Sub-section (5) of Section 2 of the Code which reads thus :--
"(5) "foreign Court" means a Court situate beyond the limits of India which has no authority in India and is not established or continued by the Central Government of India."
7. In the Full Bench judgment in Murari Lal Saraf's case, this Court observed as under :--
"Now, while the definitions of foreign Court' and 'foreign judgment' happened to remain unaltered in the State Civil P.C. till 24-4-1954, a great change had been effected in the State Constitution. Our State acceded to India on 28-10-1947 and, when the Constitution of India came into operation on 26-1-1950, it was clearly provided therein (vide Article 1 and Schedule I to the Constitution) that the State of Jammu and Kashmir was one of the part B States and its territories formed part of the territories in India. It, therefore, follows that after this change in the status of this State was brought about a Court exercising jurisdiction in other States of India could not be regarded as a 'foreign Court'. The executing Court of the Subordinate Judge, Jammu, might, however, have been misled by the fact that the Constitution (Application to Jammu and Kashmir) Order, 1950 did not make Article 5 of the Constitution which contains the definition of a citizen of India applicable to the State.
But whatever doubt there may have been as regards the position of the State subjects outside the State in India at that time, it has become absolutely clear that since the promulgation of the Constitution (Applicatiop to Jammu & Kashmir) Order, 1954 the subjects of this State become full citizens of India with effect from 26-4-1950 (vide paragraph (3) of the said order). Under these circumstances, it cannot be said that the ex parte decree which was passed in this case by the Senior Subordinate Judge of Amritsar on 4-6-1951 was passed against a non-resident foreigner. It was clearly passed against a person who had become a citizen of India at that time.
(2) Further by the Constitution (Application to Jammu and Kashmir) Order, 1950 Article 261(3) of the Constitution became applicable to the State and it reads as follows :--
"Final judgments or orders delivered or passed by Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to Law."
This provision in the Constitution of India which is applicable to the State read with the provisions of Section 44 even as this section stood at the time when the execution application was rejected by the executing Court made the decree passed in this case by the Senior Subordinate Judge of Amritsar executable in the State and the principle enunciated in the above mentioned Privy Council case could not be invoked."
8. In Dewan Izzat Rai Nanda's case, a Division Bench of Delhi High Court while dealing with an identical question relating to the filing of a partition suit in respect of properties situated both in J. & K. State as well as outside, while dwelling upon the controversy regarding the applicability of the Central Code of Civil Procedure as also of the Jammu & Kashmir State Code of Civil Procedure held that in so far as the Courts in India are concerned, the same have an element of 'foreignness' vis-a-vis, the Courts in J. & K, State and vice-versa, but "foreignness" could not be mistaken with the expression "foreign Court". The following passage from this judgment forming part of part-13 may be reproduced with advantages :--
"It was in the light of the constitutional background that the Code has not been made applicable to the State of Jammu and Kashmir. It follows, therefore, that as far as the Courts in India, as defined by the Code, are concerned, the same have an element of "foreignness" vis-a-vis the Court in the State of Jammu and Kashmir and vice-versa. Mr. B. N, Nayyar appearing for defendant No. 1 strongly relies on this aspect to contend that the suit be held as not maintainable qua the peoperties in the State of Jammu and Kashmir. But as we have observed, the perspective has to be different and this would be clear when we examine some of the provisions of the Jammu and Kashmir Code. "Foreign-ness" is not the same thing as "foreign Court".
9. Elucidating in great details the legal position in respect of the maintainability of suits in Delhi qua the properties sought to be partitioned and situated partly in Jammu & Kashmir State, their Lordships of the Division Bench of Delhi High Court took great pains to explain as to why equitable doctrine of effectiveness should be invoked by balancing conflict between the jurisdiction of the Courts in J. & K. State and those in rest of India and by pointing out that it would indeed, be a negation of the judicial process and the concept of the integrity of India, if it were held that the Courts in India would not have jurisdiction to entertain the suits in respect of the properties sought to be partitioned, if only some of the properties were situated in J. & K. State. Not only were their Lordships concerned about the violation of equitable doctrine of effectiveness, but another point, which engaged them in deciding in favour of the jurisdiction was that, the lock of jurisdiction would encourage the multiplicity of litigation if the plaintiff had to file a suit for partition with regard to the properties in Jammu and Kashmir State separately restricted to properties situated there and had to file separate suits in respect of properties situated in rest of India. Holding that the principles of Sections 16 and 17 of the Code would be attracted if one were to, in the circumstances of the case evolve and apply the new equitable doctrine of effectiveness, it was held that the Courts in Delhi had the jurisdiction to entertain the suits even in respect of the properties situated in Jammu & Kashmir, apart from those in rest of India. With great respect we wish to reproduce the following very elucidatory and important passage from para 14 of the judgment :--
".... The equitable doctrine practised by Courts in England would not in terms be applicable when we are concerned with Courts in the State of Jammu and Kashmir and Courts in the other States of India. The State of Jammu and Kashmir is certainly not foreign territory. Only a different Civil P.C. is in force there. Merely because a different Code of Civil Procedure is in force in the State of Jammu and Kashmir does not mean that a ' decree passed by Courts in any other State of India would be a nullity. The suit may not be maintainable under Section 16 of the Code but the decree of the Court passed by a Court in a State other than Jammu and Kashmir is executable in the State of Jammu and Kashmir. Perhaps, it was the view expressed in the decisions rendered by various High Courts and even by the Privy Council in the pre-Constitution era that prompted the Legislature in the State of Jammu and Kashmir to clarify that decrees of Indian Courts are not decrees of foreign Courts by defining what is a Foreign Court. If the Courts in the States of India are not foreign Courts according tq the Jammu and Kashmir Code and admittedly the State of Jammu and Kashmir is an integral part of India, we do not see why the equitable doctrine of effectiveness cannot be invoked. Indeed, it would be a negation of the judicial process and the concept of the integrity of India to adopt the principle enunciated in the decided cases when British India and the erstwhile Princely States of India were foreign territories vis-a-vis each other. It cannot be disputed that the suit is maintainable, at least qua properties situate within the Union Territory of Delhi and Jullunder. It would be encouraging multiplicity of litigation if the plaintiff had to file a suit for partition with regard to properties in the State of Jammu and Kashmir separately restricted to properties other than those situate in Delhi and Jullunder. Apart from the fact that there may be a conflict of decision if such two suits are filed, one has to keep in view the fact that ultimately appeals from the suit filed in Delhi and the suit filed in the State of Jammu and Kashmir may land up in the Supreme Court which has jurisdiction over the Courts of entire country including the State of Jammu and Kashmir."
10. We have very carefully considered the rival contention at Bar in the light of aforesaid two judgments. We have also very carefully gone throught the three judgments of Privy Council cited by Mr. A. V. Gupta, Raja Setrucharlu Ramabhadra Raju Bahadur's case dealt with the limited question relating to the description of the word "Courts" occurring in Section 17 of the Code by holding that the word "Courts" should be construed to mean where the Code applies.
Nilkanth Balwant Natu's case also somewhat similarly dealt with the question relating to the applicability of the Code in relation to Section 17 when it held that the suit for foreclosure, sale or redemption etc. respecting immovable property should be filed within the jurisdiction of the "Courts" where the Code applies. Nrisingha Charan Nandy Choudhry's case also dealt with exactly similar situation regarding the applicability of Section 17 of the Code and the choice of the plaintiff for utilising the jurisdiction only if the Code applies to the Courts involved in the choice of jurisdiction. All the three above referred judgments of Privy Council, therefore, squarely dealt with the applicability of Section 17 of the Code and it shall be interesting to observe that these judgment were delivered at a point of time when neither the Consitution of India was in force nor for that matter the Constitution of Jammu and Kashmir State had come into being. These judgments, therefore, can safely be kept out of cosideration in deciding the issue involved in this appeal and, therefore, we have no hesitation in holding that these are wholly distinguishable and totally non-applicable to the points in controversy before us.
11. When we therefore, look at the angle relating to jurisdiction with a wider perspective and apply the ratio in Dewan Izzat Rai Nanda's case as also the observations of Full Bench of this Court in Murari Lal Sarafs case, we come to a conclusion that declaring Jammu and Kashmir Courts to be out of bound for properties situated outside Jammu and Kashimr State in relation to partition suits, shall not only amount to giving a very restricted and narrow construction to Section 16 of the Code, but may also defeat the purpose of integration of Jammu and Kashmir State with the Union of India and may, therefore, defeat the very basic concept of Article 1 of the Constitution of India which undoubtebly applies to Jammu and Kashmir State with all its force and might and based on this applicability, the Jammu and Kashmir State is an integral part of India. It shall be appreciated that the whole controversy seems to have arisen only because Jammu & Kashmir State has a different Code of Civil Procedure and just because expression "pro-
perty" in Section 16 of the Code got its restricted meaning of being situate only in Jammu and Kashmir State. If one on the other hand adopts a wider and more pragamtic outlook and goes deeper into not only the conceptual background relating to the integration of Jammu and Kashmir State to rest of India, but also considers the spirit of Indian Constitution as the fountain head of all laws and, therefore, adopting a wider perspective applies the principles of Federaliasm in its totality, one should have no hesitation in holding that the Courts in Jammu and Kashmir State should be treated at par with those in rest of the country and, therefore, if in rest of India, a Civil Court can entertain a partition suit respecting the properties situate outside its territorial jurisdiction, subject to the conditions laid down in Section 16 of the Code, why should the Courts in Jammu and Kashmir State be deprived of that wider and expanded concept of territorial jurisdiction by being treated differently, just because of a technical anomaly occurring in the explanation to Section 16 of the State Code of Civil Procedure. It is time thus that these technical anomalies are removed by judicial intervention, so that not only a broader application extends to the provisions of the Code, but also a balanced legal view is taken in the interest of overall broader perspective and the jurisdictional concept is properly appreciated and understood, apart from bringing the Courts in Jammu and Kashmir State at par with the rest of India.
12. We therefore, based on the aforesaid reasoning have no hesitation whatsoever in holding that the Courts in Jammu and Kashmir on a proper and true interptation of Sections 16 and 17 of the Code have jurisdiction, like the Courts in rest of India to entertain and try suits for partition in respect of properties which admittedly may be situated outside the territory of Jammu and Kashmir State, similarly as the Courts in rest of India have jurisdiction to entertain and try the suits for partition in respect of properties situated in Jammu and Kashmir State, both of Course being subject to other conditions occurring in Sections 16 and 17 of the Code.
13. This now takes us to the question regarding the grant or otherwise of the temporary injunction respecting the subejct matter of the suit pending before the learned single Judge. Mr. A. V. Gupta learned counsel appearing for the respondents had submitted that we should ourselves examine in this appeal the merits of the controversy regarding the grant or otherwise of the temporary injunction. Mr. S. P. Gupta, learned counsel appearing for respondents No. 21 and 22 also supported Mr. A. V. Gupta's contention and submitted that in so far as the property situated at Bombay is concerned, his clients namely respondents Nos. 21 and 22 have no dispute either with the plaintiff in the suit or the contesting defendants who may be co-sharers or anything else. According to Mr. S. P. Gupta, his clients were ony partners jointly with the firm and that the continuance of injunction would unnecessarily jeopardize the interest of his clients, even though there is no relief sought against them by the plaintiff in the suit. Mr. A. V. Gupta additionally submitted that the property in Bombay was altogether in a different class than other properties and that in any case, even if the relief claimed by the plaintiff is granted to him, which he stoutly contested, he would only get a part of it and yet continuance of temporary injunction is working adversely to the interest of his client. We have noted all these contentions of the learned counsel for defendants only to indicate that we are not inclined to ourseleves examine the merits of the controversy relating to the grant or otherwise of temporary injunction becuase the learned single Judge, in his wisdom did not deal with such merits in the order under appeal before us and restricted his judgment only to the question relating to the lack of territorial jurisdiction. That being the case, we think it absolutely improper to intermingle outselves in such merits of the case because in our considered opinion, these belong exclusively to the domain of learned single Judge who alone should deal with such controversies, examine them in proper perspective and return finding on the merits of the case. We are of course not oblivious to the demands of the learned counsel for the defendants that urgency is of paramount importance because of the stakes involved in the case, particularly with relation to the property situated in Bombay which is claimed to be of a very high value. We, therfore, leave all these matters entirely to be decided by the learned single Judge.
14. In the totality of circumstances, therefore, we allow this appeal and set-aside the order impugned. While doing so, we remand the question relating to the grant of temperary injunction or otherwise to the learned single Judge.
The learned single Judge shall re-examine the entire question relating to the grant or otherwise of temporary injunction and after hearing the parties once again on the merits of controversy pass appropriate orders. Because of urgency involved, we request the learned single Judge to very, very expeditiously deal with and dispose of the entire matter relating to temporary injunction. In the meanwhile, to protect the interests of both the sides, we direct that till 31st Dec., 1994, status-quo as existing on date shall to maintained by the parties with regard to the properties involved. This direction, however, is subject to condition that the learned single Judge does not dispose of the application for temporary injunction before this date and if he does so, his order shall govern the status of the properties rather than our aforesaid direction. It shall be entirely upto the parties, if the application for temporary injunction is not disposed of till 31st Dec., 1994, to obtain appropriate directions from the learned single Judge regarding the status of the properties after 31st Dec., 1994 and the learned single Judge shall, upon such prayer pass appropriate orders on the merits of the controversy, uninfluenced by our above referred directions. We direct the Registry to list the civil original suit along with all applications before the learned single Judge on Nov. 29, 1994. The parties through their learned counsel are directed to appear before the learned single Judge on that date.