Madras High Court
S.Kunasekaran vs S.Theivendran on 14 October, 2011
Equivalent citations: AIR 2012 (NOC) 119 (MAD.)
Bench: R.Banumathi, R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.10.2011
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms.JUSTICE R.MALA
O.S.A.NOS.229 AND 230 OF 2011
AND M.P.NOS.1 OF 2011, 2 OF 2011 AND 3 OF 2011
1.S.Kunasekaran
2.Mrs.K.Kalaichelvi
3.K.Arunpradeep
4.K.Prasanth ... Appellants in both O.S.As
Vs.
1.S.Theivendran
2.Mrs.T.Rethinavalli
3.T.Vignesh Ghanthi
4.T.Vishnu .... Respondents in O.S.A.
No.229 of 2011
1.Dr.S.Sethupillai
2.Mrs.S.Maligadevi
3.K.S.Naveen Raja
4.Indhumathi
5.Mrs.V.Karpagasundari
6.N.Velayutham
7.V.Nagarathi
8.V.Saranya
9.V.Gautham .... Respondents in O.S.A.
No.230 of 2011
Prayer: Original Side Appeals in O.S.A.Nos.229 and 230 of 2011 are filed under Clause 15 of Letters Patent read with Order XXXVI Rule 11 of O.S.Rules against the Order dated 20.4.2011 made in Application Nos.4804 and 5369 of 2010 respectively in Application No.2530 of 2010 in C.S.No.643 of 2010 on the file of this Court.
For Appellants : Mr.R.Thiagarajan
in both O.S.As
For Respondents : Mr.A.K.Mylsamy
in O.S.A.No.229 of 2011 for M/s.A.K.Mylsamy &
Associates
For Respondents : Mr.A.Palaniappan
in O.S.A.No.230 of 2011
COMMON JUDGMENT
R.BANUMATHI,J These appeals are preferred against the common order dated 20.4.2011 made in Application Nos.4804 and 5369 of 2010 respectively in Application No.2530 of 2010 in C.S.No.643 of 2010 revoking the leave granted for institution of the suit. The plaintiffs are the appellants.
2. The plaintiffs have filed the suit C.S.No.643 of 2010 for the following reliefs:
(a) partition and separate possession of the suit properties claiming under a Will dated 4.8.2005 and for division of the properties into five equal parts and allot one such share to the plaintiffs;
(b) permanent injunction restraining the defendants, their men, agents and servants from encumbering, alienating or dealing with the properties or creating any third parties' interest in the suit properties; - and -
(c) permanent injunction restraining the defendants, their men, agents and servants and persons from effecting transfer of shares in the Companies viz., M/s.Paris Dakner Microsphenules P.Ltd., (Defendant No.18) and M/s.Swiss Garnier Life Sciences (Defendant No.19).
3. Defendant Nos. 1 to 4 are residing at Erode and defendant Nos.5 to 8 are residing at Chennai and defendant Nos.9 to 17 are residing at Alandur. The 18th defendant (M/s.Paris Dakner Microsphenules P.Ltd.) is a Company registered under the Companies Act stated to be having its registered office in Chennai. The 19th defendant (M/s.Swiss Garnier Life Sciences) is a partnership firm having its registered office at Alandur, Chennai, which is outside the jurisdiction of this High Court. Suit 'A', 'B', 'C' and 'D' schedule properties are in Pallapatti, Nilakottai Taluk in Dindigul District. Suit 'E' and 'F' schedule properties are situated in Alandur, Chengalpattu District. Alleging that the properties are located at Chennai and some of the other properties are located outside the jurisdiction and that some of the defendants are also residing outside the jurisdiction, plaintiffs filed Application No.2530 of 2010 under Clause 12 of the Letters Patent seeking leave to sue. In the said application, by the Order dated 27.4.2010, leave was granted.
4. Defendants 9 to 12 entered appearance and filed application A.No.4804 of 2010 and defendant Nos.1 to 4 and 13 to 17 filed A.No.5369 of 2010 to revoke the leave. The defendants alleged that the suit C.S.No.643 of 2010 is for partition and separate possession of the properties and none of the properties in the Suit Schedules 'A' to 'E' are situated within the original jurisdiction of the High Court and that the Court has no jurisdiction to entertain the suit.
5. Upon consideration of the rival contentions of both parties, the learned single Judge held that the suit is for partition and separate possession and 'A' to 'E' schedule properties and they are all immovable properties situated outside the jurisdiction of the High Court and in so far as immovable properties are concerned, High Court will not have any jurisdiction to entertain the partition suit. In so far as Defendant No.18(M/s.Paris Dakner Microsphenules P.Ltd.), the learned single Judge observed that the address of the Company having registered office at Chennai is denied and even if the registered office of the Company is situated in Chennai, on the ground of Forum convenience, the suit cannot be entertained. On those findings, by the impugned order, dated 20.4.2011, the learned Judge revoked the leave granted.
6. Being aggrieved by the revocation of leave, the plaintiffs have preferred these appeals. The learned counsel for appellants Mr.R.Thiagarajan has contended that the learned single Judge did not keep in view that the prayer 'C' in the Suit relates to effecting of transfer of shares in Defendant Nos.18 and 19 companies, which are having registered office within the jurisdiction of the High Court. Laying emphasis upon the second limb of Clause 12 of the Letters Patent and placing reliance upon a decision of the Supreme Court in the case of FOOD CORPORATION OF INDIA VS. M/S.EVDOMEN CORPORATION, (AIR 1999 SC 2352), the learned counsel would further contend that when the registered office is situated within the original jurisdiction of the High Court and the High Court has the power to exercise the jurisdiction under Clause 12. It was further argued that as per section 120 of Civil procedure Code, the provisions of Sections 16, 17 and 20 of the Civil Procedure Code, 1908 are inapplicable to the High Court Original Side Jurisdiction and the finding of the learned single Judge that this Court has no jurisdiction to entertain the Suit relating to immovable properties situated outside the jurisdiction of the High Court is unsustainable and untenable in law.
7. Refuting the contenttions, the learned counsel for defendants 9 to 12/respondents 1 to 4 in O.S.A.No.229 of 2011 Mr.A.K.Mylsamy contended that the suit is for partition and separate possession of the immovable properties set out in the Suit and none of the properties set out in the Schedules 'A' to 'E' are situated within the original jurisdiction of the High Court and therefore, this Court has no jurisdiction to entertain the Suit and the learned single Judge has rightly revoked the leave. It was further submitted that Defendant No.18 (M/s.Paris Dakner Microsphenules P.Ltd.) is having registered office at 24, Brahmin Street, Alandur, Chennai 600 016 and deliberately the address has been wrongly given as "Poonamallee High Road, Chennai" to mislead the Court.
8. Reiterating the above contention, Mr.Palaniappan, The learned counsel for the defendants 1 to 4 and 13 to 17/ respondents 1 to 3 and 5 to 9 in O.S.A.No.230 of 2011 has contended that the Suit has been filed at the instance of 5th defendant since disputes have arisen between him and the 9th defendant and the suit has been deliberately filed in the High Court only with a view to cause inconvenience and hardship to the defendants, who are residing outside the jurisdiction of the High Court.
9. In order to appreciate the rival contentions, we may usefully refer to Clause 12 of the Letters Patent, which reads as follows:
"Original jurisdictions as to suits. And we do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court: or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Madras, in which the debt or damage, or value of the property sued for does not exceed hundred rupees.
10. By a reading of clause 12 of the Letters Patent, It is seen that Clause 12 is divided into three parts as follows:-
"I. If, in the case of suit for land or other immovable property such land or property shall be situated within the local limits of the ordinary original civil jurisdiction of this court;
II. or in all other cases, if the cause of action shall have arisen, either wholly or, in case of the leave of the court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of this court; and III. Or, if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain within such limits."
The first limb relates to the suit for land or other immovable property situated within the local limits of ordinary original civil jurisdiction of the High Court. The consideration of the second limb would arise only in all other cases.
11. The suit 'A', 'B' and 'C' schedule properties are situated in Pallapatti village, Nilakottai Taluk, Dindigul District. The three items in 'D' and 'E' schedules are situated in Pudupakkam village, Chenglalpattu Taluk, Kancheepuram District. It is well settled that a suit for partition is a suit for land. Under clause 12 of the Letters Patent, the High Court would have jurisdiction to entertain the Suit for partition, only in respect of the land or immovable properties situated within the ordinary original civil jurisdiction of the High Court. The 'A' to 'E' schedule suit properties, being situated outside the jurisdiction of the High Court, Suit for partition, being a Suit for land, the learned single Judge rightly held that the Suit is not maintainable.
12. Contending that where some of the items are situated outside the jurisdiction, the Suit for partition is maintainable, the learned counsel placed reliance upon a decision of a Division Bench of this Court in the case of A.GIRIDHAR AND ANOTHER VS. A.SURESH AND OTHERS, (1988-2-L.W.308). In the said case, it was a suit for partition of immovable properties comprising of houses in Madras city and agricultural lands in Chengalpattu District. Since the house property was situated in Madras city, the Division Bench has held that "while there can be no controversy that as regards suit for land or immovable property where the whole of land or immovable property is situated within the ordinary original jurisdiction of the High Court, that the High Court can take cognizance of such suits, it is also well established that even though a part of the land or immovable property is situated within such limits and part outside the limits, if leave has been first obtained, a suit for such land or immovable property can be entertained by the High Court in its ordinary original civil jurisdiction."
13. In the present case, since all the items of immovable properties 'A' to 'E' Schedule are situated outside the jurisdiction of the High Court, the above decision is not applicable to the case on hand.
14. In M/S.MOOLJI JITHA AND COMPANY VS. THE KHANDESH SPINNING & WEAVING MILLS COMPANY LIMITED, (AIR 1950 FC 83), while considering the Clause 12 of the Letters Patent of Bombay High Court, which is identical to the Clause 12 of Letters patent of this Court, it was held that in order to consider whether a suit is covered by the expression 'suit for land' in Clause 12 of the Letters Patent, one has to consider whether it is for the purpose of obtaining a decree for possession, or a decision in title to land, or is something different, but involves the consideration of the question of title to the land indirectly. The expression "suit for land" covers three classes of suits (i) suits for determination of title to land; (ii) suits for possession of land; and (iii) other suits in which the reliefs claimed if granted would directly affect title to, or possession of, the land.
15. Considering the question, whether the suit for injunction is suit for land, in TAMIRAPARANI INVESTMENTS PRIVATE LIMTIEDVS. METFILMS PVT.LTD., ((2006) 1 MLJ 357), the First Bench of this Court has held that the suit for bare injunction is a suit for land and is a suit for the purpose of acquiring possession or safeguarding possession of or establishing title to or a right in land viz., the suit schedule property. It was further held that "..... It is well settled that the expression 'suit for land' should not be confined and limited to suits for recovery of possession of land or to obtain a declaration of title to land only." In the said case, suit, being one for control for land lying outside the jurisdiction of this Court, it was held that High Court has no jurisdiction to entertain the suit".
16. Referring to Moolji Jitha's case and considering the expression suit for land, in Tamiraparani Investments case, ((2006) 1 MLJ 357), the Division Bench has held as under:
"8. ..... The words 'suits for land or other immovable property' in Clause 12, besides obviously covering claims for recovery of possession or control of land, or apt to connote also suits, which are primarily and substantially seeking an adjudication upon title to immovable property or a determination of any right or interest therein. The words "suit and land" means establishing title to land or any interest in the same, or for possession or control thereof, and the decree sought for must be intended proprio vigore to be enforceable against and binding on the land itself.
In the said judgment, it is also stated that the nature of the suit and its purpose have to be determined by reading the plaint as a whole. The inclusion or absence of a prayer is not decisive of the nature of the suit, nor is the order in which the prayers are arrayed in the plaint. The substance or object of the suit has to be gathered from the averments made in the plaint on which the reliefs sought for in the prayers are based. In the case on hand, undoubtedly, looking to the averments made in the plaint as a whole, and the relevant relief sought for, the suit is clearly, substantially, and mainly for land.
(underlining added)
17. Applying the ratio of the above decisions to the case on hand, the suit is for partition and separate possession of suit properties and to allot 1/5th share to the plaintiffs. The suit, being for partition and for separate possession, the present suit, being one for partition of the lands lying outside the jurisdiction of the Court, the learned single Judge rightly held that this Court has no jurisdiction to entertain the Suit and consequently, the learned Judge rightly revoked the leave.
18. The learned counsel for the appellants contended that even though the suit was for partition, prayer 'C' in the suit is for permanent injunction restraining the defendants from effecting transfer of shares of the Companies and the Companies are situated at Chennai and as such the learned Judge ought not to have revoked the leave. It was further submitted that the learned Judge did not properly appreciate the judgment of the Division Bench of this Court in A.GIRIDHAR AND ANOTHER VS. A.SURESH AND OTHERS, (1988-2-L.W. 308).
19. The learned counsel would further submit that the Defendant No.18 is having office at No.11/4, Golden Enclave, No.275, Poonamallee High Road, Kilpauk, Chennai and when part of cause of action has arisen in Chennai, the High Court will have jurisdiction to entertain the suit. In support of his contention, the learned counsel placed reliance upon FOOD CORPORATION OF INDIA VS. M/S.EVDOMEN CORPORATION, (AIR 1999 SC 2352). In the said decision, the Supreme Court considered Clause 12 of the Letters Patent determining jurisdiction of Bombay High Court in its Original Civil Jurisdiction with reference to a Charter party agreement and the phrase civil Court having jurisdiction to decide in Section 2(c) of the Arbitration Act, 1940. In the said case, the Corporation had principal office in Delhi and award was filed in Bombay High Court, where arbitration took place. In those factual circumstances, the Supreme Court held that the Bombay High Court would have jurisdiction over the subject matter of the dispute, because the Corporation had one of its place of business in Bombay. The above decision has no bearing to the case on hand. In this case, the relief sought for in respect of the Defendant Nos.18 and 19 Companies are incidental to the main relief of the suit for partition. When the suit for partition falls within the first limb of Clause 12, there is no question of invoking the second or third limbs of Clause 12.
20. It is pertinent to note that even though the appellants claimed that the 18th defendant has its office at 11/4, Golden Enclave, No.275, Poonamallee High Road, Chennai, by perusal of the Form 18, it is seen that the 18th defendant has registered office at No.24, Brahmin Street, Alandur, Madras 600 032. Even though there are some correspondences addressed to 18th defendant, in 275, Poonamallee High Road, Kilpauk, Chennai, the Company is having its registered office at Alandur, which is outside the original Jurisdiction of this Court. Even assuming that 18th defendant has any office within the jurisdiction of Chennai, on the ground of forum convenience, the learned single Judge rightly revoked the leave.
21. Considering the question of "forum conveniens", in (2004) 6 SCC 254 [Kusum Ingots and Alloys Limited v. Union of India and another], the Supreme Court held as under:-
"30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. [See Bhagat Singh Bugga v. Dewan Jagbir Sawhney [AIR 1941 Cal 670]; Madanlal Jalan v. Madanlal [AIR 1949 Cal 495]; Bharat Coking Coal Limited v. Jharia Talkies & Cold Storage (P) Limited [1997 CWN 122]; S.S.Jain & Co. v. Union of India [(1994) 1 CHN 445] and New Horizons Limited v. Union of India [AIR 1994 Del 126].
Assuming that the office of 18th defendant is situated in Chennai, applying the ratio of the above decision, the Court may refuse to exercise the discretion in granting leave.
22. Since the suit for partition is in respect of the land the properties situated outside the original jurisdiction of the High Court, this Court has no jurisdiction to entertain the Suit and the learned single Judge rightly revoked the leave and we do not find any reason warranting interference with the impugned order.
23. The learned counsel for the appellant Mr.R.Thiagarajan would finally submit that the plaint may be returned to the appellants/plaintiffs giving liberty to them to present the plaint before the appropriate Court.
24. In the result, both the appeals are dismissed. The Registry is directed to return the plaint to the appellants and the appellants/plaintiffs are at liberty to file the plaint/amended plaint before the appropriate Court within a period of six weeks from the date of receipt of copy of this order. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are also dismissed.
usk To The Sub-Asst.Registrar Original Side High Court, Madras