Sudhakar Verma (At: 03:50 P.M.) vs Mahendra Kumar And Others
2013 Latest Caselaw 3961 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(Judgment reserved on 08.04.2013)
 
(Judgment delivered on 10.07.2013)
 

 

 
Court No. - 21
 

 
Case :- CIVIL REVISION No. - 77 of 2007
 

 
Revisionist :- Sudhakar Verma
 
Opposite Party :- Mahendra Kumar And Others
 
Counsel for Revisionist :- Avadhesh Kumar,Ankur Sinha
 
Counsel for Opposite Party :- Sushil Awasthi
 

 

 
Hon'ble Sibghat Ullah Khan,J.

At the time of arguments, no one appeared on behalf of respondents even though the case was taken up in the revised list, hence only the arguments of learned counsel for applicant were heard.

This is plaintiff's revision under Section 115, C.P.C. directed against order dated 07.03.2007 passed by Civil Judge (S.D.), Lakhimpur Khiri in Regular Suit No.266 of 2005, Sudhakar Ram Vs. Mahendra Kumar and others. Through the impugned order, preliminary issue relating to jurisdiction (whether civil court at Lakhimpur or at Pilibhit has got jurisdiction to try the suit) was decided against the plaintiff holding that civil court at Pilibhit had got jurisdiction. Ultimately, through the impugned order the plaint was directed to be returned for filing before appropriate court.

According to the plaint allegations, plaintiff started a business in partnership with defendants of brick kiln at Pilibhit. The relief claimed was for permanent prohibitory injunction seeking to restrain the defendants from dissipating the property of firm M/s Krishna Brick Field and for accounting. Partnership agreement was executed on 01.10.2002 at Lakhimpur Khiri and office of the firm for the purposes of trade tax was got registered at Lakhimpur Khiri. In para-3 of the plaint, it was stated that plaintiff and defendants established the brick kiln by the name of M/s Krishna Brick Field at plot No.23, area 0.75 hectare situate at Pota Kala, District Pilibhit.

In the partnership agreement, it was mentioned that all the disputes would be subject to the jurisdiction of court at Lakhimpur Khiri. The court below in the impugned order held that the relevant clause in the partnership deed did not contain the word only, hence suit could not be filed at Lakhimpur Khiri as the property was situate at Pilibhit. The relevant clause is quoted below:

"That all the disputes are subject to Lakhimpur Khiri jurisdiction."

Admittedly, the defendants reside at Pilibhit.

The question of jurisdiction of civil court is dealt with under Sections 15 to 20, C.P.C. Under Section 28, Contract Act, it is provided that agreement in restraint of legal proceedings is void. The courts have interpreted Section 28, Contract Act to mean that if for a suit more than one civil court situate at more than one place may have jurisdiction, then parties may by consent oust the jurisdiction of one or more of such courts and confine the jurisdiction to only one of such courts. The Supreme Court in Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd. AIR 2004 SC 2432 has held that the clause in the agreement confining jurisdiction to one of such several courts, which may have jurisdiction to try the suit is binding upon the parties even if it is not qualified by words like ''alone, only or exclusive'.

The relevant clause of the partnership agreement confining jurisdiction to the courts at Lakhimpur Khiri is not relevant for deciding the present controversy. Such types of clauses can always be invoked by defendants. There is absolutely no occasion for the plaintiff to take advantage of such clause. Through such clauses if cause of action arises at several places then court at particular place may be chosen to have exclusive jurisdiction to try the suit. However if cause of action arises at different places then even otherwise plaintiff has got full right to file the suit at any of such places (Section 17, C.P.C.)

Accordingly, what is relevant to be seen is as to whether irrespective of the relevant clause in the partnership deed (supra) civil court at Lakhimpur Khiri has got jurisdiction to try the suit or not, whether exclusively or along with the Civil Court at Philibhit. Sections 16 to 20, C.P.C. broadly divide the suits between two parts. The first part consists of suit in respect of immovable property or movable property actually under distraint or attachment and the other division is of other suits. Sections 16 & 17, C.P.C. deal with the suits in respect of immovable properties or movable properties under attachment. By virtue of Sections 16-17, suits for recovery, partition, foreclosure, sale or redemption in the case of a mortgage or of charge upon immovable property, or for the determination of any other right or interest in the immovable property, or for compensation for wrong to immovable property and for recovery of movable property actually under attachment may be instituted only in the court within local limits, of whose jurisdiction the property is situate. However, by virtue of Sections 19 & 20, suit for compensation for wrong done to the person or to movable property (Section 19) or other suits (Section 20) may be filed either at the place where cause of action arises or where defendant resides or carries on business or personally works for gain at the option of the plaintiff.

Accordingly, if the suit is in respect of immovable property or any interest therein then no other court except the court where property is situate will have jurisdiction to try the suit otherwise the suit may also be filed at the place where defendant resides or works for gain.

The relief claimed in the suit is in respect of property of the firm. The property may be movable as well as immovable. Relief claimed is for accounting also. As the office of the firm is at Lakhimpur Khiri hence it can very well be said that defendant works for gain there. Accordingly, suit for accounting and in respect of movable property of the firm is quite maintainable at Lakhimpur Khiri.

However, the suit in respect of immovable property of the firm is not at all maintainable at Lakhimpur Khiri. At this juncture, reference may be made to the Supreme Court authority reported in Sandeep Polymers Private Limited V/S Bajaj Auto Limited, AIR 2007 SC 2656. The said case related to damages for breach of contract without claiming any right or interest in immovable property. There also registered office of defendant was situate at a place different from the place where suit was filed. Supreme Court held that the suit would be maintainable only in respect of that relief which was based upon a cause of action arising at the place where the suit was filed. In the end the plaintiff was permitted to amend the plaint and to seek the relief with respect to purchase orders at Pune (suit had been filed at Nagpur) at Pune.

As far as proviso to Section 16, C.P.C. is concerned, it is not applicable to the facts of the case. Under the said proviso a suit to obtain relief respecting for wrong to immovable property can be instituted where defendant resides or works for gain where the relief sought can be entirely obtained through his personal obedience. In the instant case, there is no possibility that relief can be obtained through personal obedience of the defendants' respecting immovable property. In this regard, reference may be made to AIR 2007 SC 1636.

Learned counsel for plaintiff applicant has cited the Supreme Court authority reported in New Moga Transport Corporation Of India vs. United India Insurance Co. Ltd., AIR 2004 SC 2154 holding that ''Where two courts or more have under the C.P.C. jurisdiction to try a suit or proceedings agreement between the parties that the dispute between them shall be tried in any one of such courts is not contrary to public policy and in no way contravenes Section 28 of the Contract Act. (Para-14)"

Accordingly, it is directed that plaintiff applicant within two months from today shall file an application seeking amendment in the plaint clarifying as to whether relief claimed is in respect of movable property alone or in respect of immovable property also. If through amendment in the plaint plaintiff clarifies that the relief is only in respect of movable property and accounting then suit shall be treated to be maintainable at Lakhimpur Khiri and shall be decided on merit. However, if through amendment it is clarified that relief is claimed in respect of immovable property also then impugned order shall stand and plaint shall be returned (after allowing the amendment) to be filed before the competent court at Pilibhit. If within two months, amendment application is not filed, then impugned order shall stand.

Revision is disposed of accordingly.

Order Date :- 10.07.2013

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