Madras High Court
S.A.Fasluddin vs S.M.A.Siyauddin on 11 November, 2011
Bench: R.Banumathi, R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MS. JUSTICE R.MALA O.S.A.Nos.320 and 321 of 2011 1.S.A.Fasluddin 2.S.A.Sharfuddin ... Appellants in both the appeals. Vs. 1.S.M.A.Siyauddin 2.Haseena 3.Basheera 4.S.A.Mohideen ... Respondents in both the appeals. Original Side Appeals are filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the common order dated 30.08.2011 made in Application Nos.7065 of 2010 and 54 of 2011 in C.S.No.766 of 2010 on the file of this Court. For Appellants : Mr.S.Y.Masood in both appeals For Respondents : Mr.S.F.Mohammed Yousuf in both appeals for R1 to R3 Mr.V.Selvaraj for R4 COMMON JUDGMENT
R.BANUMATHI,J.
Challenge in these appeals is the order dated 30.08.2011 in A.No.7065 of 2010 declining to revoke the leave granted in O.A.No.2756 of 2010 in C.S.No.766 of 2010 and allowing A.No.54 of 2011 directing the parties to arbitration as per the arbitration agreement. Defendants 1 and 2 are the Appellants in both the appeals.
2. Admitted facts in these appeals are as follows:- Plaintiffs and Defendants are the sons and daughters of late Haji S.M.Abdul Majid and Plaintiffs and Defendants inherited the suit properties. Plaintiffs and Defendants are related as under:-
Haji S.M.Abdul Majid (died on 15.02.2009) =Fathima Bivi (died on 12.07.2004) |
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| | | | | | Hazeena S.A.Fasluddin Siyauddin SMA Basheera S.A.Sharfuddin S.A.Mohideen (daughter) (son) (son) (daughter) (son) (son) (P2) (D1) (P1) (P3) (D2) (D3) Suit Schedule-I - a Plot measuring 5400 sq. ft. in Shastri Nagar, Adyar, Chennai-20 was allotted to late Haji S.M.Abdul Majid by the Tamil Nadu Housing Board. Late Haji S.M.Abdul Majid constructed a multi-storeyed residential complex with three floors and each floor consisting of four apartments. Schedule-II is the land measuring 5100 sq. ft. bequeathed to late Haji S.M.Abdul Majid by his paternal uncle Janab S.Mohideen Sahib and the said property is the subject matter of litigation in S.A.No.760 of 2004 on the file of Madurai Bench of Madras High Court. Schedule-III fell to the share of late Haji S.M.Abdul Majid under partition dated 10.03.1972. Schedules IV, V, VI and VII consist of about 11.59 acres in Kadayanallur village and Idaikaal village, Tirunelveli were purchased by late Haji S.M.Abdul Majid from out of the sale proceeds of some of the properties fell to his share under partition dated 10.03.1972 in the name of 1st Plaintiff and Defendants 1 to 3 respectively as benamidars for himself. Late Haji S.M.Abdul Majid was a man of piety and impeccable character and held the office of a Cabinet Minister under late K.Kamaraj as the Chief Minister.
3. Case of Plaintiffs is that the 2nd Defendant has forcibly occupied the Ground Floor apartment bearing No.3B of Shastri Nagar, Adyar, Chennai-20 (Schedule-I) on 10.01.2008 and has been collecting the rent due from the tenants from 01.12.2007. After the 2nd Defendant started collecting of rent from the tenants, 2nd Defendant has paid his father a sum of Rs.3,35,000/- during the months May and June 2008 and thereafter, the 2nd Defendant did not furnish any accounts of income. The 3rd Defendant who was all along with late Haji S.M.Abdul Majid turned against his father and joined with the 2nd Defendant. Suit O.S.No.4910 of 2008 has been filed by the Defendants 1 and 3 against the 1st Defendant for declaration that any document executed by their father late Haji S.M.Abdul Majid infavour of his daughters as null and void. Like wise O.S.No.6457 of 2008 has been filed by the sons of 2nd Defendant and 1st Defendant against late Haji S.M.Abdul Majid and his daughters for the same reliefs. In the month of September - October, 2008, the 1st Defendant met the Hon'ble Mr. Justice S.A.Kader, former Judge of Madras High Court and Mr. K.Ganesan, Senior Advocate of Ambasamudram and requested them to intervene in the matter. On 16.11.2008, parties entered into an agreement agreeing to constitute a private Arbitral Tribunal comprising of the Hon'ble Mr. Justice S.A.Kader, former Judge High Court, Madras, Mr.K.Ganesan, Senior Advocate of Ambasamudram and Dr.E.M.Abdul Razack as Arbitrators.
4. Before the Arbitral proceedings could begin, Haji S.M.Abdul Majid died on 15.02.2009 at Chennai in the house of his grand-daughter. Plaintiffs have filed the Claim Statement before the Arbitral Tribunal. Since, Defendants refused to participate in the Arbitral proceedings, Plaintiffs have filed C.S.No.766 of 2010 seeking for partition and separate possession of one-half of the schedule properties I to VII and also for rendition of accounts. Since Plaint schedule properties II to VII are situated in Kadayanallur village and Idaikaal village, Tirunelveli District, in O.A.No.2756 of 2010 [30.04.2010], leave was granted to the Plaintiffs to file the suit.
5. Defendants 1 and 2 have filed A.No.7065 of 2010 to revoke the leave granted in O.A.No.2756 of 2010 on the ground that except Schedule-I property, all other properties are situated outside the jurisdiction of this Court. 2nd Defendant is permanently residing at Kadayanallur, Tirunelveli District. But in the plaint, the Plaintiffs have mischievously stated that 2nd Defendant is residing in Chennai. It is averred that 1st Plaintiff permanently settled down at America. Excepting the 1st Plaintiff, the other Plaintiffs and the Defendants are residing in Kadayanallur, Tirunelveli District and excepting Schedule-I, all other properties are situate in Kadayanallur village and Idaikaal village, Tirunelveli District, Plaintiffs cannot invoke the jurisdiction of this Court.
6. 3rd Defendant has filed A.No.54 of 2011 seeking to refer the parties in C.S.No.766 of 2010 to arbitration stating that just before the hearing in arbitration proceedings could commence, Haji S.M.Abdul Majid died on 15.02.2009. After the demise of their father Haji S.M.Abdul Majid, the arbitration proceedings could not go on because of the adamant attitude of Defendants 1 and 2. Since, the subject matter of the suit is the subject matter of arbitration agreement, 3rd Defendant has come forward with this application to refer the parties to arbitration.
7. Resisting A.No.7065 of 2010, Respondents-Plaintiffs have filed counter contending that Plaint Schedule-I is situated in Chennai, the suit is maintainable within the Original jurisdiction of Madras High Court. Plaintiffs further averred that they stayed in Kadayanallur, Tirunelveli District for some time for performing necessary Fatiha and other ceremonies and soon thereafter, Plaintiffs returned to Chennai and have been dwelling in Chennai. The 2nd Defendant himself is permanently residing in Apartment D-3 in the building complex at Shastri Nagar, Adyar, Chennai-20. The 3rd Defendant is dwelling with his wife and carrying on business at No.15/7, Havva Park, Mosque street, Avadi, Chennai-55. In the Arbitration agreement entered into by late Haji S.M.Abdul Majid and the Plaintiffs and Defendants, all of them unanimously agreed to have the place of arbitration at Chennai and therefore, the suit is maintainable and prayed for dismissal of A.No.7065 of 2010.
8. Upon consideration of the rival contentions, learned single Judge held that the property described in Plaint Schedule-I situated in Chennai is the most valuable property and that the suit is well maintainable. Observing that the suit is for partition involving immovable properties, the learned Judge held that in such instances "forum conveniens" cannot be pleaded and that the suit is maintainable and on those findings, the learned Judge declined to revoke the leave granted in O.A.No.2756 of 2010. Insofar as the application filed under Section 8 of the Arbitration and Conciliation Act [A.No.54 of 2011], the learned Judge held that parties have entered into an agreement on 16.11.2008 agreeing to resolve the dispute in Arbitration and that the Arbitration agreement also named three Arbitrators and the learned Judge allowed A.No.54 of 2011 and referred the parties to arbitration.
9. Challenging the impugned order, learned counsel for Appellants Mr.S.Y.Masood has contended that excepting the first Schedule property in Shastri Nagar, Adyar, Chennai-20, all other properties are in Kadayanallur village and Idaikaal village, Tirunelveli District and merely because one property is situated in Chennai that cannot be a ground to invoke jurisdiction of the Original Side of Madras High Court. Taking us through the typed set of papers, it was further submitted that parties are ordinarily residing at Kadayanallur, Tirunelveli District and that they temporarily came down to Chennai and when all the Defendants are living in Kadayanallur, Tirunelveli District, the suit is not maintainable and the learned Judge erred in not revoking the leave granted. In support of his contention, learned counsel for Appellants placed reliance upon 2002 (1) CTC 134 [Parameswari Veluchamy and two others v. T.R.Jayaraman and seven others]; AIR 2008 Madras 119 [M/s.Dynasty Developers Pvt. Ltd. v. Jumbo World Holdings Ltd. and others; AIR 2011 Madras 110 [V.Sekar and others v. M/s.Akash Housing (Partnership Firm), and 2011-3-LW 376 [M/s.Murthy Hosiery Mills, rep. by its Managing Partner, Miller R.T.Murthy and another v. The State Bank of India, represented by its Chief General Manager, Local Head Office, Chennai-1 and another].
10. Mr.V.Selvaraj, learned counsel appearing for 4th Respondent has submitted that Schedule-I property in Shastri Nagar, Adyar, Chennai-20 with multi-storeyed residential complex is most valuable property and since Schedule-I property is situated in Shastri Nagar, Adyar, Chennai-20, the suit in the Original Side of Madras High Court is well maintainable. Learned counsel for Respondents 1 to 3 would further submit that Plaintiffs 2 and 3 are dwelling at Chennai since August 2008 and 2nd Defendant himself is dwelling in the Apartment D-3 in the building complex in Schedule-I of the suit property and while so, the Appellants cannot take exception for filing the partition suit in the Original Side of Madras High Court. It was further submitted that Plaintiffs and Defendants unanimously agreed to have the place of Arbitration at Chennai and the Arbitrators have held the proceedings in Chennai and also passed an Award [11.10.2011] and the objection raised by the Appellants is baseless.
11. We have also heard Mr.S.F.Mohammed Yosuf, learned counsel appearing for Respondents 1 to 3 reiterating the same submissions.
12. We have considered the submissions and also gone through the records. We have also perused the decisions relied on by the Appellants.
13. Clause 12 of Letters Patent governs jurisdiction of the Original Side of the High Court. 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 lad 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". Dwelling of the Defendants and also the Plaintiffs within the jurisdiction of the High Court or cause of action arising within the jurisdiction of the High Court in whole or in part will be relevant only in cases where the subject matter of the suit is not for land or other immovable property.
14. Suit Schedule-I property is situated in Shastri Nagar, Adyar, Chennai-20. Plaint Schedule-II to VII are situated in Kadayanallur village and Idaikaal village, Tirunelveli District. It is well settled that under Clause 12 of Letters Patent, the High Court would have jurisdiction to entertain the suit for partition where part of the property is situated within the jurisdiction of the Original Side of High Court and the remaining properties are outside the jurisdiction of the High Court with the leave of the Court. In the present case, plaint Schedule-I property situated in Shastri Nagar, Adyar, Chennai-20, the suit for partition, being the suit for land is well maintainable in the Original Side of Madras High Court.
15. The decision reported in 1988-2-LW 308 [A.Giridhar and another v. A.Suresh and others] 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."
16. Contending that excepting Schedule-I, all other properties are situated outside the Original Side jurisdiction of Madras High Court and therefore, the suit for partition ought not to have been entertained, the learned counsel for Appellants placed reliance upon 2002 (1) CTC 134 [Parameswari Veluchamy and two others v. T.R.Jayaraman and seven others]. In the said case, suit for partition of properties was filed before the High Court, Madras. Three out of 185 properties situate within Madras. All the Defendants are residing outside Madras. Plaintiffs obtained leave to sue; but the same was revoked subsequently which came to be challenged before the Division Bench. Observing that all the Defendants are residing outside jurisdiction of the High Court and that the suit properties are not joint family properties and that most of the properties are situated outside the jurisdiction, the Division Bench of this Court held that "revocation of leave is valid and does not call for interference on appeal". In the case on hand, Plaintiffs 2 and 3 and 1st Appellant-2nd Defendant are residing in Chennai and therefore, the above said decision is not applicable to the case on hand.
17. Learned counsel for Appellants then contended that where only part of cause of action arose within the territorial jurisdiction of the High Court, on the principle of "forum conveniens", the Court may refuse to entertain the suit. In support of his contention, learned counsel for Appellants placed reliance upon 2011-3-LW 376 [M/s.Murthy Hosiery Mills, rep. by its Managing Partner, Miller R.T.Murthy and another v. The State Bank of India, represented by its Chief General Manager, Local Head Office, Chennai-1 and another] (in which one of us was a member R.Banumathi,J.). In the said case, Plaintiffs availed financial facilities from State Bank of India, Tiruppur. Suit was filed in the Original Side of Madras High Court on the only ground that the head office of State Bank of India is located at Chennai and that the head office granted approval for one time settlement. In those facts and circumstances of the case, Court applied the ratio of the decision in Kusum Ingots & Alloys Ltd. v. Union of India and another [(2004) 6 SCC 254] and held that "integral facts constituting the cause of action arisen only in Tiruppur and on the principle of "forum conveniens", Court refused to exercise jurisdiction". The ratio of the said decision is not applicable to the case on hand which is a suit for partition where one of the valuable property is situated within the Original Side jurisdiction of Madras High Court.
18. It is also pertinent to note that Plaintiffs 2 and 3 are dwelling in Ayanavaram, Chennai-23, since August 2008 within the jurisdiction of Madras High Court. 1st Appellant-2nd Defendant himself is stated to be permanently residing in the Apartment D-3 in the residential building complex at Schedule-I in Shastri Nagar, Adyar, Chennai-20. Even though, 1st Appellant-2nd Defendant denies the dwelling in the Apartment in the residential building complex in Schedule-I property, we find such denial is an afterthought. It is also pertinent to note that in the two suits filed by the 1st Appellant-2nd Defendant and his sons in O.S.No.4910 of 2008 and O.S.No.6457 of 2008, the address is stated to be "Shastri Nagar, Adyar, Chennai-20".
19. It is also to be pointed out that parties have entered into Arbitral agreement in Chennai wherein the parties have agreed that the venue of arbitration is to be in "Chennai". Plaintiffs 2 and 3 have also filed Claim Statement before the Arbitral Tribunal. Since the Defendants did not participate in the Arbitral proceedings which compel the Plaintiffs to file the suit for partition. Venue of Arbitration to be in "Chennai" is yet another factor to maintain the suit in the Original Side of Madras High Court. Pointing out that Schedule-I, valuable property is situated at Chennai, the learned Judge has rightly declined to revoke the leave and we do not find any reason warranting interference with the finding of the learned Judge.
20. Insofar as application in A.No.54 of 2011, as pointed out earlier, the parties have agreed to go before the arbitration. Since the parties have agreed to go before arbitration and also named the Arbitrators, the learned Judge referred the parties to go before the Arbitrators. Learned counsel for Respondents contended that as per Section 37 of the Arbitration and Conciliation Act, the order passed in an application filed under Section 8 of the Act is not appealable. In the case on hand the very filing of the suit in the Original Side of Madras High Court is objected to and on that ground the order passed in A.No.54 of 2011 is challenged. In the facts and circumstances of the case, the Respondents are not right in raising objection as to the maintainability of the appeal O.S.A.No.321 of 2011. We do not filed any reason warranting interference with the order of learned single Judge.
21. In the result, both the appeals are dismissed. Consequently, connected M.Ps. are closed. No costs.
bbr To The Sub Assistant Registrar, Original Side, High Court, Madras