Madras High Court
Shameem Ahmed And Etc. vs The Egmore Benefit Society Ltd. And ... on 19 April, 1995
Equivalent citations: AIR1996MAD63, AIR 1996 MADRAS 63
ORDER
1. In Application No. 7155/ 1994, the applicant in his affidavit contends as follows : The applicant has filed the suit for declaring that the mortgage deed dated 1-8-1994 created by the respondents 2 to 6 in favour of the first respondent comprising of undivided half share of the applicant in C Schedule property is invalid and illegal. The suit is also for granting permanent injunction restraining the defendants in any manner transferring, alienating or encumbering the said property. The respondents-defendants are residing and carrying on business at Madras. The property is situated outside the jurisdiction of this Court. Hence the application.
2. Leave to sue was granted on this application on 14-12-1994.
3. The respondents filed A. No. 965/1995 to revoke the leave granted contending as follows : The dispute in question is in respect of land only. No part of cause of action had arisen within the jurisdiction of this Court. Suit in question being one with reference to immovable property which is outside the ordinary. Original Civil jurisdiction of this Court, the Court has no jurisdiction to entertain the matter and consequently the leave granted will have to be revoked. Averments in the counter with regard to the merits of the case are not extracted, since they are not material for this application.
4. The question before us, is whether the leave granted by this Court on 14-12-1994 to the plaintiff, to file the suit in this Court is liable to be revoked ?
5. The learned counsel appearing for the applicant in A. No. 7155/1994 would argue that the subject matter of the present suit was the same subject matter of C.S. No. 318/1952 which was entertained by this Court and therefore, the plaintiff is entitled to file the suit in this Court. In the affidavit filed by the applicant for leave to sue, it was not stated by the applicant that he is filing the suit in this Court, on account of the fact that C.S. No. 318/1952 was entertained in this Court and that the subject matter of the said suit is the suit property herein. The argument of the learned counsel appearing for the applicant that a plea on the basis of the maintainability of C.S. No. 318/1952 on the file of this Court cannot be entertained, since it is an elementary principle that there cannot be any evidence or argument in respect of a fact which has not been pleaded by the litigant.
6. The learned counsel appearing for the applicant has also argued that Section 24 of the Code of Civil Procedure provides any suit being transferred, or transfer of any suit pending on the file of any other Court to the High Court and on that ground, the suit can be entertained in this Court. Section 24 of the Code of Civil Procedure deals with the general power of transfer and withdrawal of suits, appeals or other proceedings pending before the subordinate Courts to the High Court or District Court for trial or disposal to any Court subordinate to them and competent to try or dispose of the same, or withdraw any suit, appeal or other proceedings pending in any Court subordinate to them. In the present case, no suit is pending in any Court to enable this Court to withdraw it and entertain it. The present suit is filed even at the filing stage only in the High Court and therefore, the argument of the learned counsel appearing for the applicant that under Section 24 of the Code of Civil Procedure, the Court can entertain the present suit in this Court is without merits and is to be rejected.
6A. The learned counsel appearing for ihe applicant has argued that Writ Petitions are filed in the High Court in respect of properties situate outside Madras City and on the same analogy, this suit can a!so be filed in this Court. In the State of Tamil Nadu, the only Court which has got Writ Jurisdiction is the High Court of Madras. Therefore, when there is a cause of action for a litigant to invoke ihe Writ Jurisdiction of the High Court, in respect of an immovable, property situated outside the City limits of Madras, he has to necessarily come to the High Court. Writ jurisdiction is also not limited to the city of Madras. The High Court has got writ jurisdiction throughout the State of Tamil Nadu. Therefore, since because writs are filed in the High Court, in respect of disputes over immovable properties, outside the city of Madras, the applicant cannot file a suit for declaration and injunction in the High Court, when the property regarding which the relief sought for is outside the original jurisdiction.
7. The learned counsel appearing for the applicant in A.No. 965/1995, has drawn the attention of this Court to Clause 12 of the Letters Patent which provides for the original jurisdiction as to suits, in the High Court of Madras. According to the learned counsel appearing for the applicant, as per Clause 12 of the Letters Patent, in cases where a dispute in respect of immovable property situated outside the jurisdiction of this Court arises, she High Court does not have jurisdiction to entertain a suit on that dispute if it is in respect of land. It is not in dispute that the property for which the suit has been filed is situated wholly outside the jurisdiction of this Court. The words "suit for land" came up for interpretation in several decisions, of which, the decision reported in Moolji Jaitha & Co. v. K. S. & W. Mills Co., AIR 1950 FC83 is the guideline. The Hon'ble Judges who have rendered the above judgment, have observed as follows :
"Per Kama, C. J. -- In order to see whether a suit is covered by the expression "suit for land" in Clause 12, one has to consider whether it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something different but involves the consideration of the question of title to land indirectly.
Per Fazl Ali, J. (Obiter) -- The expression "suit for land" covers the following three classes of suits : (1) suits for the determination of title to land;
(2) suits for possession of land; and (3) other suits in which the reliefs claimed, if granted would directly affect title to or possession of land.
Per Patanjali Sastri, J. -- The words "suits for land or other immovable property" in Clause 12, besides obviously covering claims for recovery of possession or control of land, are apt to connote also suits which primarily and substantially seek an adjudication upon title to immovable property or a determination of any right or interest therein."
Their Lordships have considered the argument of the learned Advocate-General who has raised a contention that as the defendants are carrying on business within the limits of the Court's ordinary original civil jurisdiction, even when the lands are situated outside the Bombay, the High Court has jurisdiction to try the matter. Their Lorships have held that the above argument of the Advocate General is not a tenable one.
8. The next decision relied by the learned counsel appearing for the applicant in A. No. 965/1995, is the decision reported in Muthukumaraswamy in re, (1970) 2 Mad LJ 328 in which also our High Court has held the grant of approval involves a decision that the applicant is entitled to deal with the property and such a decision involves a consideration of the title to the property and that in cases in which a decision on merits would indirectly affect the title to the immovable property situated outside the jurisdiction of the Court is to be arrived at this Court has no jurisdiction to entertain the suit." We have to see the scope of the present suit and the object of the suit to decide whether this is a suit for land. The applicant in his affidavit, has stated that he has filed the suit for declaring the mortgage in respect of the C Schedule property in which he has got half share is invalid and illegal and for permanent injunction against the respondents. I do not think that a decision can be arrived at on this question whether the plaintiff is entitled to declaration and injunction prayed for without going to the title claimed by the plaintiff in respect of half share in the C schedule properties in the plaint. It has been held in the decision reported in Macneill and Magor Ltd. v. Mouhsen Ali, that a suit for perpetual injunction to restrain the owner from obstructing tenant's user of space in Court-yard of premises is a suit for land within Clause 12 of the Latters Patent. The same principle applies to the present suit also since this is a suit for declaration and perpetual injunction to restrain the respondents from obstructing the plaintiff's right over the half share of the suit C schedule properties. Therefore, this suit has to be necessarily held as a "suit for land". The judgment of the Federal Court which I have already referred, has laid down the principle in clear terms. It is for us to follow it. Therefore, I am of opinion that the applicant who has filed the suit for declaration and injunction, has only filed a suit on land in respect of the properties situated outside the ordinary, original jurisdiction of this Court and therefore, the applicant is not entitled to the leave sought for as per Clause 12 of the Letters Patent. In that view, I am of opinion that the leave granted on 14-12-1994 has to be revoked.
9. In the result, Application No. 7155/1994 is dismissed. Application No. 965/1995 is allowed. Leave granted on 14-12-1994 is revoked. The plaint is ordered to be returned for presentation before proper Court. Time fifteen days. O. A. No. 1355/1994 is dismissed since the plaint is returned for presentation before proper Court and interim injunction granted on 21-12-1954 is vacated allowing A.No. 966/1995. A. Nos. 1062 and 1063/1995 are also dismissed in view of the order passed is A. Nos. 7155/1994 and 965/1995.
10. Order accordingly.