Tourism Corporation Of Gujarat ... vs Pushpaben Wd/O Bhadrakumar ...
2022 Latest Caselaw 372 Guj

     C/AO/144/2017                                 JUDGMENT DATED: 12/01/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/APPEAL FROM ORDER NO. 144 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER

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1    Whether Reporters of Local Papers may be allowed                    No
     to see the judgment ?

2    To be referred to the Reporter or not ?                             No

3    Whether their Lordships wish to see the fair copy                   No
     of the judgment ?

4    Whether this case involves a substantial question                   No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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            TOURISM CORPORATION OF GUJARAT LIMITED.
                            Versus
         PUSHPABEN WD/O BHADRAKUMAR SAVJANI & 3 other(s)
==========================================================
Appearance:
MR PREMAL R JOSHI(1327) for the Appellant(s) No. 1
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                               Date : 12/01/2022

                              ORAL JUDGMENT

1. The appellant-original plaintiff has preferred this Appeal from Order under Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, against the order dated 7.2.2017 passed by the Court of learned Principal Senior Civil Judge, Vapi below Exh-1, returning the Plaint under Order 7 Rule 10 of Code of Civil Procedure to the Plaintiff for production of the same before the

C/AO/144/2017 JUDGMENT DATED: 12/01/2022

competent Court.

2. It is the case of the plaintiff- appellant that it has preferred the Suit for eviction of the defendant and peaceful possession of the property bearing Survey No. 149 and 201/A2 of Nagrol Taluka, Umargaon, District: Valsad admeasuring 30,493 sq. mtrs or thereabouts together with buildings, structures, outhouses, etc. and for decree of Rs.35,89,380/- with running interest at the rate of 12% and other ancillary reliefs. It is contended that the plaintiff filed the Suit which came to be returned on the ground of preliminary issue that the defendant has already filed Civil Suit No. 2576 of 2000 against the Plaintiff in the City Civil Court, Ahmedabad for the relief of Specific Performance of the lease agreement dated 20.12.1994 and on that ground, the Plaint came to be returned back. It is further alleged that neither the Plaintiff nor the defendant reside within the territorial jurisdiction of the Court of Vapi and, therefore, no cause of action arise within the territorial jurisdiction of the Vapi Court. According to the appellant- plaintiff, reason given by the trial Court is not in consonance with the law. Both the suits are different in nature. It is also contended that as per the provisions of Section 16 of the Code of Civil Procedure, the Suit will be maintainable only at Vapi Court and the Suit filed by the defendant before the City Civil Court, Ahmedabad has nothing to do with the present suit and both the suits are independent and based on separate causes of action and judgment of one would not affect the other suit. It if prayed to set-aside the impugned order and direct the concerned trial Court to register the Suit and proceed with the matter in accordance with the law.

C/AO/144/2017 JUDGMENT DATED: 12/01/2022

3. Heard Mr. Premal R. Joshi, learned advocate for the plaintiff- appellant. Though duly served with the rule, none has appeared for the respondents.

4. Mr. Joshi, learned advocate for the appellant has reiterated the facts which are narrated here-in-above and has submitted that in view of Section 16 of the Code of Civil Procedure, since the property is situated in the territorial jurisdiction of Court of Vapi, only the civil Court at Vapi had jurisdiction to register the Suit and entertain the same. He has prayed to allow the present appeal.

5. On perusal of the Plaint, it appears that it is filed for decree of eviction against the defendants and the property is situated at Nagrol, Taluka: Umargaon, District: Valsad. It is an immovable property. At this juncture, it is pertinent to refer to Section 16 of the Code of Civil Procedure, which reads as under:

"16. Suits to be instituted where subject-matter situate.--Subject to the pecuniary or other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) or the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose

C/AO/144/2017 JUDGMENT DATED: 12/01/2022

jurisdiction the property is situate:

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain".

6. In view of the aforesaid provision of Section 16, admittedly only the Court where the immovable property is located or situated has territorial jurisdiction to entertain and decide the Civil Suit. It is a mandatory provision that the Suit relating to immovable property needs to be filed before the Court in whose jurisdiction the property is situated. The question of residence of the Plaintiff or the defendant is immaterial in regard to relief sought for eviction of the immovable property.

7. Now, on perusal of the impugned order, it appears that the learned Civil Judge has not even considered Section 16 of the Code of Civil Procedure, as referred to hereinabove. The observation made in Para-4 of the order is reproduced as under:

"4. The Plaintiff has claimed all reliefs on the basis of agreement which is challenged before the Hon'ble City Civil Court, Ahmedabad in Civil Suit No. 5276/2000. Therefore, if this Court pass any order on the basis of questioned agreement then it may arise difficulties in conflict opinion. Further, the Hon'ble City Civil Court, Ahmedabad is higher forum than this Court. Therefore, the opinion or order passed regarding questioned agreement is binding to this Court. Further, the agreement

C/AO/144/2017 JUDGMENT DATED: 12/01/2022

is executed in the jurisdiction of the Hon'ble City Civil Court, Ahmedabad. Further, neither the Plaintiff nor the Defendants resides within territorial jurisdiction of this Court. Further, no cause of action arise within territorial jurisdiction of this Court. The present suit is filed merely on the basis of Suit Property situated in the Umbergaon Taluka, But, in view of the above discussion, to avoid future problems & the matter in subjudice in the Hon'ble City Civil Court, Ahmedabad, it is not in the interest of justice to entertain the present Suit. Hence, in the interest of justice, following order is passed:

-:: ORDER::-

Under Order VII Rule 10 of the Code of Civil Procedure, 1908, the present Plaint is hereby returned to the Plaintiff for production before the competent Court having jurisdiction to try the case.

Order pronounced today on 07th day of February, 2017 in the open Court at Vapi, Dist. Valsad."

8. Thus, the aforesaid observation of the learned Principal Civil Judge, Vapi is against the provisions of Code of Civil Procedure, 1908 and are without application of mind. Merely because the defendant has filed the Civil Suit before City Civil Court, Ahmedabad for specific performance of lease agreement, does not divest their territorial jurisdiction of Court of Vapi to entertain the suit which is for eviction of immovable property. The observation of the learned Civil Judge that City Civil Court, Ahmedabad is higher forum than the Court of Senior Civil Judge, Vapi has no relevance considering the fact that the suit is for eviction of immovable property which is situated in the territorial jurisdiction of Court of Principal Civil Judge at Vapi. Thus, the impugned order of the learned Principal Senior Civil Judge, Vapi is not sustainable in the eyes of law.

C/AO/144/2017 JUDGMENT DATED: 12/01/2022

9. Therefore, the impugned order dated 7.2.2017 passed by the Court of learned Principal Senior Civil Judge, Vapi below Exh- 1 is hereby set aside and Principal Senior Civil Judge, Vapi is hereby directed to register the Suit of the plaintiff and decide it in accordance with law.

No order as to costs.

Now, it is informed that Principal Senior Civil Court is established at Umargaon, Vapi, District: Valsad and, the suit property is in the Taluka: Umargaon, let the Principal Senior Civil Judge, Umargaon register the Suit and decide the same in accordance with law.

(DR. A. P. THAKER, J) SAJ GEORGE