Bombay High Court
D.G. Kotak And Anr vs Rajeshkumar @ Rajas R. Doshi & Ors on 21 December, 2011
Bench: D.G. Karnik
1 Suit No.997/83
mpt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.997 of 1983
D.G. Kotak and Anr ... Plaintiffs
versus
Rajeshkumar @ Rajas R. Doshi & ors ... Defendants
...
Mr.J.V. Dave with Mr.L.H. Patil for the plaintiffs
Mr.C. Bharucha with Ms.A.B. Kapadia i/b D.F & Diwan for
defendant nos.1 to 4.
Mr.C.M.Korde, Sr. Advocate with Ms.Priya Aggarwal and Mrunali
Panchal i/b M/s.Halai & Co. for defendant no.6.
CORAM : D.G. KARNIK, J
DATED : 21st December 2011
ORAL ORDER:-
1. A short but interesting question of law that arises for my
consideration in this suit is:
"Whether the High Court of Bombay would have a
jurisdiction to entertain and try a suit for specific
performance of a contract for sale and possession
of a property situate outside the limits of its
original civil jurisdiction, if leave under Clause XII
of the Letters Patent is obtained prior to the filing
of the suit?"
2. One Ratanchand Hirachand was an owner of certain
agricultural lands situate at Aundh in Taluka Haveli in Registration
District Pune. (for short "the suit land"). According to the plaintiffs,
under an oral agreement for sale, terms of which are recorded in a
draft agreement for sale (Exhibit-J to the plaint), Ratanchand
agreed to sell the suit land to them. On refusal of the defendants to
sell the plaintiffs filed the present suit for specific performance of
the oral agreement for sale against defendant nos.1 to 5 after
obtaining a leave under Clause XII of the Letters Patent. Defendant
nos.1 and 2 were joined as executors of the will of Ratanchand and
defendant nos.3 and 4 were joined as legatees/beneficiaries under
the will. Defendant no.5 who was a receiver of the suit land
appointed in some other proceeding (High Court Suit No.304/54)
was also joined as a party. Subsequently, the plaint was amended
and defendant no.6, who has subsequently purchased the property
from the defendants was added as a party.
3. Issues were initially framed. However, by an order dated 20
December 2011, the court framed an additional issue: "Whether
this court has jurisdiction to entertain and try the suit? By consent
of the parties, the issue was treated as preliminary issue. Counsel
for the parties stated that they do not wish to adduce any oral
evidence on the issue. Heard learned counsel for the parties.
4. "The High Court of Judicature at Bombay" was established by
the Queen's Charter (known as "Letters Patent, Bombay"). Later, by
reason of a power conferred under Article 231 of the Constitution of
India, the Parliament of India established a common High Court,
known as "The High Court of Bombay" for the State of Maharashtra
and State of Goa. (see 20(1) of the Goa, Daman and Diu Re-
organisation Act, 1987). Under section 20(3) of the Goa, Daman &
Diu Reorganisation Act, the High Court of Bombay has the same
jurisdiction powers and authority which the High Court of
Judicature at Bombay had immediately before the constitution of
the new common High Court of Bombay. There is no dispute
between the parties that the jurisdiction of the High Court of
Bombay including its Original Civil Jurisdiction and its powers are
the same as were vested in the High Court of Judicature at Bombay
under the Letters Patent. Clause XII of the Letters Patent reads as
follows:
XII. Original jurisdiction as to suits - And we do
further ordain that the said High Court of
Judicature at Bombay, in the exercise of its original
original civil jurisdiction, shall be empowered to
receive, try, and determine suits of every
description, if, in the case of suits for land or other
immovable property such land or property shall be
situated, or in all other cases if the cause of action
shall have arisen, either wholly, or, in case the
leave of the Court shall have been first obtained,
in part, within the local limits of the ordinary
original jurisdiction of the said High Court 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;
except that the said High Court shall not have such
original jurisdiction in cases falling within the
jurisdiction of the Small Causes Court at Bombay,
or the Bombay City Civil Court.
5. Clause XII of the Letters Patent can be conveniently divided
into two parts. The first part relates to the suits relating to land or
immovable property and the second part relates to all other cases
i.e.suits other than the suits for land and other immovable
properties. In all other cases i.e in respect of any suit not relating to
land or immovable property the High Court will have jurisdiction to
entertain the suit if (a) the cause of action has wholly arisen within
the local limits of its ordinary original jurisdiction or (b) if prior
leave of the court has been obtained and cause of action has arisen
in part within the local limits of the ordinary original jurisdiction of
the High Court or (c) if prior leave of the court is obtained and the
defendant dwells or carries on business or personally works for gain
within such limits. In respect of suits for land or other immovable
property, the High Court of Bombay would not have jurisdiction to
entertain a suit even if the leave of the court has been obtained
under Clause XII unless the property is situate within the limits of its
original jurisdiction. So far as the suits which fall under the first
part of Clause XII viz. suits for land or other immovable property,
there is no question of obtaining a leave of the court if the land or
immovable property falls outside original jurisdiction of the High
Court.
6. I am fortified in my view by a decision of the Supreme Court
in the case of Adcon Electronics Pvt.Ltd. Vs. Daulat & Anr, (supra).
In paragraph no.9 of the decision, the Supreme Court held:
"9. Thus, it is clear that under clause 12 of the
Letters Patent, the High Court in exercise of its
ordinary original civil jurisdiction will have power
to receive, try and determine: (1) suits for land or
other immovable property if such property is
situated within the local limits of original
jurisdiction of the High Court; or (2) all other cases
(a) if the cause of action has arisen within the local
limits of the ordinary original jurisdiction of the
High Court; (b) if prior leave of the Court has been
obtained and the cause of action has arisen in part
within the local limits of the ordinary original
jurisdiction of the High Court; or (c) if the
defendant dwells or carries on business or
personally works for gain within such limits."
The Supreme Court then considered what is the meaning of the
expression "suit for land" appearing in Clause XII of the Letters
Patent and held :
"15. From the above discussion it follows that a
"suit for land" is a suit in which the relief claimed
relates to title to or delivery of possession of land
or immovable property. Whether a suit is a "suit
for land" or not has to be determined on the
averments in the plaint with reference to the reliefs
claimed therein; where the relief relates to
adjudication of title to land or immovable property
or delivery of possession of the land or immovable
property, it will be a "suit for land". We are in
respectful agreement with the view expressed by
Mahajan, J. in Moolji Jaitha case (AIR 1950 F.C.83)
The Supreme Court further held that a suit simplicitor for specific
performance of a contract of sale in which relief of delivery of
possession is not claimed cannot be treated as "suit for land".
Implicit in the decision is that a suit for specific performance of a
contract in which the delivery of possession is claimed or a suits in
which title to the property is a subject matter of the suit are "suits
for land" and excluded from the original jurisdiction of the High
Court.
7. In my view, a suit for specific performance of a contract of
sale of an immovable property in which possession of the property is
claimed in pursuance of the contract for sale or as a consequence of
the sale deed to be executed in performance of an agreement of
sale, is a suit for land. Such a suit would be covered by the first
part of Clause XII of Letters Patent. Being so, the High Court of
Bombay would not have jurisdiction to entertain and try the suit if
the immovable property is situated outside the limits of its original
jurisdiction. Leave to institute such as a suit in the High Court
cannot be granted. Grant of such leave would be a nullity because
the court itself does not have a power to grant leave in respect of a
suit for land or immovable property.
8. For these reasons, I answer the issue in the negative and hold
that the High Court of Bombay does not have a jurisdiction to
entertain and try a suit for specific performance of a land or an
immovable property with a prayer in the suit for the possession
thereof, if the land or the immovable property is situate outside the
original jurisdiction of the High Court. This would be so even if a
leave under Clause XII of the Letters Patent is purported to have
been obtained.
9. On intimation of the decision of want of jurisdiction is given
to the plaintiffs through their counsel under Order 7 Rule 10A of
the Code of Civil Procedure the counsel, on instructions of plaintiff
no.1 who is present in the court, states that the plaintiffs propose to
present the plaint to the Civil Judge, Sr. Division, Pune after its
return. I accordingly direct that plaintiffs may on return of the
plaint present the plaint in the Court of Civil Judge, Sr. Division,
Pune. The defendants shall appear in the court on 25 January
2012. The defendants through their counsel waive service of
further summons in the suit.
10. The documents filed in the court be returned to the respective
parties for filing them in the trial court.
(D.G.KARNIK, J)
