Punjab-Haryana High Court
Neeta Chadha And Others vs Phullan Rani And Others on 10 December, 2010
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : 10.12.2010
C.R.No.5644 of 2003
Neeta Chadha and others ...Petitioners
Versus
Phullan Rani and others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
Present : Mr. Vineet Sharma, Advocate,
for the petitioners.
M/s J.L.Malhotra and J.K.Bhatti, Advocates,
for the respondents.
HEMANT GUPTA, J. (Oral)
Plaintiffs are in revision aggrieved against an order passed by the learned first Appellate Court on 29.09.2003, whereby the plaint was ordered to be returned on account of lack of territorial jurisdiction of Chandigarh Courts.
The petitioners filed a suit for declaration that the plaintiffs are owners of 1/3rd share of SCF No.2, Phase-I, Mohali (SAS Nagar) and that the mutation dated 03.09.1986 in favour of defendant No.1 and Vijay Kumar, predecessor-in-interest of defendant Nos.2 to 7 is null & void. The plaintiffs further claimed consequential relief to be registered as joint owner of 1/3rd share in the property. The plaintiffs also claimed mesne profits from defendant Nos.1 to 8 for illegal use of the plaintiffs' share of the property from 03.09.1986.
The said suit was filed at Chandigarh for the reason that part of cause of action has arisen in Chandigarh, as the mutation was sanctioned by C.R.No.5644 of 2003 2 Estate Office located in Chandigarh and that the agreement to sell, application for transfer and the affidavits etc. were submitted in the office of defendant No.9 at Chandigarh. Therefore, the part of cause of action was said to have arisen at Chandigarh.
"Whether the Chandigarh Court has no jurisdiction to try and entertain the present suit", was Issue No.5 framed by the learned trial Court.
The learned trial Court decreed the suit, but in appeal the learned first Appellate Court set aside the judgment and decree and returned a finding that the Chandigarh Courts have no territorial jurisdiction to entertain the suit, as the immoveable property was situated within the jurisdiction of Ropar Courts. It was held that in respect of immoveable property, Section 16 of the Code of Civil Procedure will determine the jurisdiction of the Court. Section 20 of the Code of Civil Procedure is not applicable to determine the jurisdiction arising out of cause of action in respect of immoveable property.
In Harshad Chiman Lal Modi Vs. D.L.F.Universal Ltd. and another AIR 2005 Supreme Court 4446, the Hon'ble Supreme Court has considered Sections 16 and 20 of the Code of Civil Procedure and held that the jurisdiction of the Court is where the immoveable property is situated. It was held to the following effect:
"14. Section 16 thus recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate. A Court within whose territorial jurisdiction the property is not situate, has no power to deal with and decide the rights or interests in such property. In other words, a court has no jurisdiction over a dispute in which it cannot give an effective judgment. Proviso to Section 16, no doubt, states that though the court cannot, in case of immovable property situate beyond jurisdiction, grant a relief C.R.No.5644 of 2003 3 in rem still it can entertain a suit where relief sought can be obtained through the personal obedience of the defendant. The proviso is based on well known maxim "equity acts in personam, recognized by Chancery Courts in England, Equity Courts had jurisdiction to entertain certain suits respecting immoveable properties situated abroad through personal obedience of the defendant. The principle on which the maxim was based was that courts could grant relief in suits respecting immovable property situate abroad by enforcing their judgments by process in personam, i.e. by arrest of defendant or by attachment of his property.
15. xxx xxx xxx
16. The proviso is thus an exception to the main part of the section which in our considered opinion, cannot be interpreted or construed to enlarge the scope of the principal provision. It would apply only if the suit falls within one of the categories specified in the main part of the section and the relief sought could entirely be obtained by personal obedience of the defendant.
17. In the instance case, the proviso has no application. The relief sought by the plaintiff is for specific performance of agreement respecting immovable property by directing the defendant No.1 to execute sale deed in favour of the plaintiff and to deliver possession to him. The trial Court was, therefore, right in holding that the suit was covered by clause
(d) of Section 16 of the Code and the proviso had no application.
18. In our opinion, the submission of the learned counsel for the appellant that the parties had agreed that Delhi Court alone had jurisdiction in the matters arising out of the transaction has also no force. Such a provision, in our opinion, would apply to those cases where two or more courts have jurisdiction to entertain a suit and the parties have agreed to submit to the jurisdiction of one court.
19. Plain reading of Section 20 of the Code leaves no room of doubt that it is a residuary provision and covers those cases not C.R.No.5644 of 2003 4 falling within the limitations of Sections 15 to 19. The opening words of the section "Subject to the limitations aforessaid" are significant and make it abundantly clear that the section takes within its sweep all personal actions. A suit falling under Section 20 thus may be instituted in a court within whose jurisdiction the defendant resides, or carries on business, or personally works for gain or cause of action wholly or partly arises."
Later in Begum Sabiha Sultan Vs. Nawab Mohd. Mansur Ali Khan and others AIR 2007 Supreme Court 1636, it was held to the following effect:
"12. On a reading of the plaint as a whole, it is clear, as we have indicated above, that the suit is one which comes within the purview of Section 16(b) and (d) of the Code. If a suit comes within Section 16 of the Code, it has been held by this Court in Harshad Chiman Lal Modi Vs. DLF Universal Ltd. & another (2005) 7 SCC 791, that Section 20 of the Code cannot have application in view of the opening words of Section 20 "subject to the limitations aforesaid". This court has also held that the proviso to Section 16 would apply only if the relief sought could entirely be obtained by personal obedience of the defendant. The relief of partition, accounting and declaration of invalidity of the sale executed in respect of immovable property situate in Village Pataudi, Gurgaon, could not entirely be obtained by a personal obedience to the decree by the defendants in the suit. We are in respectful agreement with the view expressed in the above decision. Applying the test laid down therein, it is clear that the present suit could not be brought within the purview of the proviso to Section 16 of the Code or entertained relying on Section 20 of the Code on the basis that three out of the five defendants are residing within the jurisdiction of the court at Delhi."C.R.No.5644 of 2003 5
In view of the aforesaid authoritative judgments, the reasoning given by the learned first Appellate Court that Chandigarh Courts have no territorial jurisdiction cannot be said to be suffering from any patent illegality or irregularity. The plaintiffs have claimed declaration in respect of immovable property situated out the territorial jurisdiction of Chandigarh Courts. Therefore, the Chandigarh Courts has no jurisdiction to entertain the suit on the basis of part of cause of action having arisen within the meaning of Section 20 of the Code of Civil Procedure.
After returning the finding that Chandigarh Courts had no jurisdiction to decide the suit, the plaint was ordered to be returned for presentation before the competent Civil Court.
I have heard the learned counsel for the parties on the question; whether the plaint should be returned or the Competent Court should be directed to decide the suit on the basis of pleadings, evidence and documents already on record.
Though the Chandigarh Courts do not have the territorial jurisdiction, but the parties have completed their pleadings and led their entire evidence. Therefore, to permit the parties to lead fresh evidence, will expose the parties to avoidable expenses and delay in the proceedings. Therefore, the interest of justice would be met, if the pleadings, evidence and documents already on record, are remitted to the Court of competent jurisdiction to decide the suit from the stage immediately prior to the final judgment and decree. It will avoid additional expenses and delay in decision of the suit.
In view thereof, the records of the Civil Suit are ordered to be transferred in terms of Order 7 Rule 10-A of the Code of Civil Procedure to the Court of Shri Jaspinder Singh, Addl. Civil Judge (Sr.Divn.), Mohali i.e C.R.No.5644 of 2003 6 the competent Court of jurisdiction. The learned trial Court shall decide the suit on the basis of pleadings, evidence and documents already on record, from a stage immediately prior to the final judgment and decree. The suit shall be decided expeditiously preferably within a period of 6 months from the date of appearance of the parties before the said Court.
Parties through their counsel are directed to appear before the Court of Shri Jaspinder Singh, Addl. Civil Judge (Sr.Divn.), Mohali on 14.01.2011. It shall be open to the parties to seek ad interim injunction, if any, in accordance with law.
10.12.2010 (HEMANT GUPTA) Vimal JUDGE