Orissa High Court
Smt. Prativa Pattnaik vs State Of Orissa And Anr. on 9 April, 2001
Equivalent citations: 2001(I)OLR601, 2001 A I H C 3796, (2001) 1 ORISSA LR 601
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. This appeal is directed against the order passed by the Second Additional Civil Judge(SeniorDivision), Cuttack, directing return of the plaint for presentation before proper Court having territorial jurisdiction to try the suit.
2. The plaintiff-appellant has filed Title Suit No. 272/92 for the following reliefs :
" 26. The plaintiff therefore prays :
(a) Let it be declared that the plaintiff is the absolute owner of the properties given in Schedule 'A'.
(b) Let it be declared that the plaintiff is the custodian of the Schedule - 'C property of which her son is the owner.
(c) Let is be declared that the land and building as given in Schedule 'B' is jointly possessed by the plaintiff and her husband which has been acquired and constructed from the joint income of both.
(d) Let the defendants to permanently restrained not 10 bring any proceeding in any Court of law for confiscating the properties in Schedule 'A' to 'C'.
(e) Let the defendants to directed to release the properties given in Schedule 'A' and 'C'.
(f) Let the cost of the suit be decreed in favour of the plaintiff.
(g) Any other relief/reliefs to which the plaintiff is entitled to may also be decreed."
It is claimed that 'A' Schedule moveable properties are her own properties and 'C' Schedule properties are the properties of her minor child which were under her control. "B" Schedule properties are admittedly immovable properties in mauza Nakhara within the district of Puri (presently Khurda district). It is not disputed that Cuttack Vigilance P.S. Case No. 5/90 Under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "Act") was registered against the husband of the plaintiff-appellant and moveable properties had been seized in connection with the said case pursuant to order of search issued by the Court at Cuttack. Even though the immovable properties are admittedly situated within Khurda district as well as the moveable properties were seized from the house under occupation of the appellant and her husband at Bhubaneswar, the suit was filed at Cuttack. Defendant No. 2, the Superintendent of Police, Vigilance, Cuttack Division, filed written statement, inter alia, challenging the territorial jurisdiction of the Cuttack Court. The aforesaid objection was taken up as a preliminary issue and it was held by the trial Court that it has no territorial jurisdiction to deal with the matter and accordingly the plaintiff was directed to take return of the plaint for presentation before the proper Court.
3. The trial Court examined the matter by considering the applicability of Section 20, Code of Civil Procedure (in short, the "C.P.C.") as according to the plaintiff, the other provisions, namely Sections 16 to 19 of the C.P.C. were not applicable. The trial Court found that since the defendants were the State of Orissa and the Superintendent of Police, Clauses (a) and (b) of Section 20, C.P.C. were not applicable. The trial Court further opined that the cause of action did not arise either wholly or in part within the local limit of the Cuttack Court. The aforesaid order is being challenged in this appeal.
4. The provisions contained in Section 20, C.P.C. are extracted hereunder:
"20. Other suits to be instituted where defendants reside or cause of action arises - Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction -
(a) the defendants, or each of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part arises.
Explanation - A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
By their own terms, the provisions contained in Section 20(a) or (b), C.P.C. cannot apply to the present case, as State of Orissa and Superintendent of Police who has admittedly been arrayed in his official capacity not being natural persons cannot be said to be actually or voluntarily residing within the jurisdiction of the Cuttack Court. At any rate, the Capital of the State of Orissa being Bhubaneswar and the office as well as residence of the Superintendent of Police, Vigilance, Cuttack Division, being at Cuttack, even otherwise, Section 20(b) would not ipso facto apply, as there is nothing to show that leave of the Court, as contemplated in Section 20(b) was obtained, nor there is anything to indicate that, in fact, there has been any acquiescence in such institution of the suit at Cuttack.
5. The trial Court has held that no part of the cause of action had arisen within Cuttack even though the order of search was passed by the Magistrate at Cuttack. The question of legality of the order of the Magistrate at Cuttack is not a matter to be decided in the suit and as such it cannot be said that merely because an order of search was issued from the Court at Cuttack, cause of action had arisen in part within Cuttack. The effect of search and seizure was in relation to the properties within Bhubaneswar. Therefore, even though the Cuttack Court had issued order relating to search, since the search and seizure were effected within Bhubaneswar, the cause of action must be taken to have arisen within Bhubaneswar and not within Cuttack.
6. The observation of the trial Court that merely because Section 80. C.P.C. notice had been issued from Cuttack, it cannot be said that part of cause of action had arisen within the territorial jurisdiction of Cuttack, is justified. Though there is some divergence of opinion expressed by various High Courts on this aspect, it appears that most of the High Courts have held that though statutory notice Under Section 80, C.P.C. is required to be given, issuance 'of such notice from a particular place does not form part of the cause of action for the suit itself, as the notice merely paves the way for institution of the suit on the basis of cause of action which had already arisen. In this connection, the decisions reported in A.I.R. 1954 Bombay, 129 (Bata Shoe Co. Ltd. v. Union of India): A.I.R. 1957 Punjab, 27 (FB) (Union of India v. Firm Balwant Singh Jaswant Singh); A.I.R. 1955 Madrass, 345 (Azizuddin and Co. by Managing Partner, P.M. Azizuddin v. Union of India (Central Government) owning the South Indian Railway, represented by the General Manager, Tiruchirapalli Junction);AIR 1960 Calcutta, 391 (Niranjan Agarwalla v. Union of India); A.I.R. 1973 Madya Pradesh, 233 (Firm Sitaram Shyamsundar v. Ganpatalal Sharma and Anr.) and A.I.R. 1970 Patna, 212 (Union of India as owner of the Eastern Railway Administration v. Kedar Prasad) may be seen. The discordant note expressed in the decisions reported in A.I.R. 1956 Assam, 85 (Pratap Chandra Biswas v. Union of India) and A.I.R. 1956 Calcutta, 66 (Purnendu Bh. Deb Burman v. Union of India and others) cannot be accepted in preference to the opinion expressed in the aforesaid cases. In such view of the matter, the order passed by the trial Court cannot be said to be illegal.
7. The learned counsel appearing for the respondent No. 2 also contended that even assuming that a part of cause of action had arisen within Cuttack, even then the suit could not have been filed before the Court at Cuttack, in view of the provisions contained in Section 16, C.P.C. He has placed reliance upon the provisions contained in Section 16 (d) and (f), which are extracted hereunder :
"16. Suits to be instituted where subject matter situate -
Subject to the pecuniary,or other limitations prescribed by any law, suits -
(d) for the determination of any other right to or interest in 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 India."
Sec. 16 (d) relates to determination of any other right to or interest in immovable property. In the present case, the plaintiff has sought for a declaration that the property described in Schedule-B belongs to her and her husband jointly and, therefore, it can be said that such prayer is squarely covered Under Section 16(d). Section 16(f) relates to recovery of moveable property actually under distraint or attachment. If it is held that by search and seizure the property is under attachment and prayer is made for recovery of such moveable property, there cannot be any doubt that Section 16(f) is applicable. If the suit is required to be filed at the place indicated in Section 16, Section 20, C.P.C. would not be applicable. as Section 20 itself starts with the clause "Subject to the limitations aforesaid", every suit shall be instituted in a Court within the local limits of whose jurisdiction, the cause of action, wholly or in part, arises, Thus, where the matter is governed under earlier provisions including provision Under Section 16. C.P.C, Section 20, C.P.C. would not be applicable. Only where a suit is not required to be filed Under Section 16, C.P.C. or other provisions with which the present case is not concerned at all, the provisions tinder Section 20. C.P.C. may be taken resort to for the purpose of determining territorial jurisdiction. If a matter is covered under other provisions, it would not be covered Under Section 20, C.P.C. This is very clear in view of the observation of the Supreme Court in the decision reported in A.I.R. 1963 Supreme Court, I (R. Viswanathan and Ors. v. Rukn-ul-Mulk Syed Abdul Wajit since deceased and others, etc.), where it was observed after referring to similar provisions contained in the Mysore Code of Civil Procedure, at page 16 :
"Undoubtedly, these rules deal with the territorial jurisdiction of Courts in respect of all suits other than those relating to immovable property or for recovery of moveable property under distraint or attachment..........."
Thus, in either view of the matter, it can be said that the Court at Cuttack did not have the territorial jurisdiction to deal with the matter. The appellant shall now take return of the plaint from the trial Court and present the same before the appropriate Court having territorial jurisdiction. The appellant should take return of the plaint from the trial Court on or before 25th April, 2001.
8. The Misc. Appeal is accordingly dismissed, subject to the aforesaid observation. There will be no order as to costs.