The Madras High Court recently comprising of a bench of Justice N. Anand Venkatesh while setting aside a decree passed by the lower Appellate Court with respect to schedule properties, on the ground of lack of territorial jurisdiction observed that it is high time that the subordinate Courts come into grips with the fundamental principles of CPC and nip in the bud those suits which are not maintainable. (Chinnasami and Ors. v. Dhanasekaran)
The bench observed, "This Court has held that the trial Court lacked territorial jurisdiction to try the suit and hence the decree passed by the lower Appellate Court with respect to 2nd schedule properties must be held to be a nullity. The judgement and decree of the trial Court even with respect to the 1st schedule properties is liable to be interfered by this Court since there was no cause of action for the plaintiff to file the suit with respect to the 1st schedule properties. As a result, the entire suit is liable to be dismissed."
Facts of the case
The respondent/plaintiff filed a suit on the ground that the 1 st schedule of the suit properties are the self-acquired properties of the paternal grandfather of the plaintiff and the 2 nd schedule properties are the ancestral properties of the paternal grandfather which fell to his share by virtue of a registered partition deed dated 24-11-1959. The further case of the plaintiff is that the paternal grandfather Raja Gounder executed a registered Will dated 17-8-1986 in favour of the plaintiff regarding the 1 st schedule of properties. Similarly, he executed another Will dated 1-11-1990 in favour of the plaintiff regarding the 2 nd schedule properties. The said Raja Gounder passed away on 29-3-1991 and the Wills executed by him came into force and thereby, the plaintiff became the absolute owner of the 1 st and 2nd schedule properties.
The plaintiff claimed that he had given possession of the 2nd schedule property to the defendant who then created sham and nominal documents with respect to the property as if the property belonged to him. The defendant thus interfered with the enjoyment of the property by the plaintiff. Hence, the plaintiff approached the court seeking a permanent injunction regarding the 1st schedule and recovery of possession by way of a mandatory injunction with respect to the 2nd schedule.
Contention of the Parties
The learned counsel for the respondent submitted that the cause of action in the present case had arisen for both the 1st and 2nd schedule properties and that Section 17 of CPC., will apply to the facts of the present case and hence the suit can be instituted before the Court where one of the properties is situated and which falls within the territorial jurisdiction of the Court. The learned counsel in order to substantiate his submission relied upon the judgement of the Hon’ble Supreme Court in Shiv Naryan (v) Maniklal, made in Civil Appeal No. 1052 of 2019, dated 6-2-2019.
Courts Observation and Judgment
Section 17 of CPC., is extracted hereunder:
17. Suits for immovable property situate within jurisdiction of different Courts.—Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate :
Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court.
The bench at the very outset observed that the above Section was intended for the benefit of suitors and to prevent multiplicity of suits. It provides that where a suit is to obtain a relief in respect of property situated in the jurisdiction of different Courts, the suit can be brought in any one of the Courts and such Court can deal with the whole of the property though some portion of it is situated outside its jurisdiction. This Section is applicable whether several properties are situated in different districts or the same property extends over several Districts.
The bench noted, "in the present case, there was no cause of action for the plaintiff to file the suit with respect to the 1st schedule properties since the defendants never questioned the right, title and possession of the 1st schedule properties. If this suit had been filed only for the 1st schedule properties, the plaint would have been rejected under Order 7 Rule 11(a) of CPC., since the plaint does not disclose a cause of action. The consequence of the same is that the present suit must be taken only as a suit filed for a cause of action with respect to the 2nd schedule properties. There was really a dispute between the parties regarding the 2nd schedule properties. If this suit is looked from that perspective, the trial Court lacked jurisdiction to try the suit since it did not have the territorial jurisdiction with respect to the 2nd schedule properties. Section 17 of CPC., does not really come to the rescue of the plaintiff."
The bench observed that this crucial factor has been lost sight of by the lower Appellate Court. It is quite unfortunate that the lower Appellate Court, without dealing with this preliminary issue, has proceeded to deal with the merits of the case. Even the trial Court was wrong in dealing with the merits of the case with respect to the 2 nd schedule properties after finding that it had no territorial jurisdiction. Such finding will be considered as a nullity in the eye of law. There was absolutely no requirement for the trial Court to have decreed the suit for the 1 st schedule properties since there was no cause of action to maintain the suit for these properties. The suit should have been simply dismissed by holding that the Court before which the suit has been filed is corum non judice and hence the first substantial question of law was answered accordingly.
The bench allowing the Appeal remarked, "The suit was instituted in the year 2008 and the dispute is pending for nearly 14 years. If only the Courts below had been careful enough while dealing with the preliminary issue and had dismissed the suit then and there, on the ground of maintainability, there would have been no requirement to waste the time in litigation on merits for the last 14 years. It is high time that the subordinate Courts come into grips with the fundamental principles of CPC., and nip in the bud those suits which are not maintainable. There are sufficient provisions in CPC., to undertake such an exercise and what is required is the awareness about the availability of such provisions and invoking the same in a pro-active manner."
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