Gujarat High Court
Ranjanben Kishobhai Bagthaliya vs Nehaben Manojbhai Bagthaliya on 1 July, 2025
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C/AO/124/2025 ORDER DATED: 01/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 124 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 124 of 2025
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RANJANBEN KISHOBHAI BAGTHALIYA
Versus
NEHABEN MANOJBHAI BAGTHALIYA
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/07/2025
ORAL ORDER
1. The present appeal from order is filed under Order 43,
Rule 1(r) of the CPC, challenging the judgment and order
dated 18th August 2023 passed by the Principal Senior Civil
Judge, Rajkot, below Exhibit-1 in Special Civil Suit No. 81 of
2021, whereby it has returned the plaint to the plaintiff as per
Order 7, Rule 10 of the CPC.
2. The parties will be referred to as per their original
position before the Trial Court.
3. THE SHORT FACTS OF THE CASE
3.1. The appellant herein is the original plaintiff, whereas
the respondent herein is the original defendant of Special Civil
Suit No. 81 of 2021 filed seeking declaration and injunction
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and to get the share in the movable and immovable property,
which would be available to the plaintiff, claiming to be Class-
I legal heir of one late Manojbhai, who died on 8th May 2021.
3.2. The plaintiff happens to be the mother of the late
Manojbhai, whereas the defendant happens to be his wife, who
is residing separately from the plaintiff at Gandhidham. The
movable and immovable properties are situated at
Gandhidham, which are outside the jurisdiction of the Civil
Court, Rajkot, wherein the suit was presented.
3.3. The plaintiff has referred in the plaint that on the
demise of her son, an insurance amount of Rs.2,00,00,000/-
was received by his widow, i.e., the defendant, from the
insurance company, and as she was not parting with any
amount to the plaintiff, a settlement took place between the
parties, whereby a Memorandum of Understanding ('MOU') was
executed between the parties at Rajkot, whereby the defendant
agreed to pay a certain amount to the plaintiff.
3.4. As the defendant has not fulfilled her promise and
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there are various movable and immovable properties of the
late Manojbhai possessed by the defendant, the plaintiff, being
Class-I legal heir of the late Manojbhai, filed the suit to
receive her share.
3.5. It appears that after completion of pleadings, an issue
was raised regarding the maintainability of the suit at Rajkot
because the movable and immovable properties of the late
Manojbhai are undisputedly situated at Gandhidham, which is
outside the jurisdiction of the Civil Court at Rajkot.
3.6. After hearing the parties at length and after
considering the various provisions of the Civil Procedure Code,
1908 (hereinafter referred to as 'the CPC'), and the decisions
cited at the Bar, the Trial Court was of the opinion that the
suit was required to be returned to the plaintiff to present it
before the court at Gandhidham, District Kutch, where the
movable and immovable properties are situated which are
subject matter of the suit.
4. Feeling aggrieved and dissatisfied with the impugned
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order, the present appeal has been filed at the instance of the
plaintiff.
5. SUBMISSIONS OF THE APPELLANT-PLAINTIFF
5.1. Learned advocate Mr. Vishal C. Mehta would submit
that the Trial Court has committed a serious error of law,
inasmuch as it committed a jurisdictional error while returning
the plaint to the plaintiff.
5.2. Learned advocate Mr. Mehta would submit that the
Trial Court has completely misread the plaint and the prayers
made therein, thereby committed a gross error in law. It is
submitted that the suit, though instituted for claiming a share
in the movable and immovable properties of the late
Manojbhai (who happens to be the son of the plaintiff), which
are situated at Gandhidham, but as per the MOU executed at
Rajkot, a part of the cause of action also accrued within the
legal limits of Rajkot, and thereby, the suit was maintainable
at Rajkot.
5.3. Learned advocate Mr. Mehta would submit that when
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the Memorandum of Understanding was executed between the
parties at Rajkot, whereby the defendant had agreed to pay
the share of the plaintiff, and she having not honored her
commitment as per the MOU, the suit was instituted at Rajkot,
where the plaintiff is residing. It is submitted that as per
Section 20 of the CPC, when a part of the cause of action
accrued within the local limits of the court at Rajkot, the suit
is maintainable.
5.4. Learned advocate Mr. Mehta would submit that in the
facts of the present case, Section 16 of the CPC would not be
applicable and there is a complete non-application of mind on
the part of the Trial Court while returning the plaint by
placing reliance upon the aforesaid provision.
5.5. Thus, in view of the aforesaid, learned advocate Mr.
Mehta would request this Court to interfere with the order
impugned in the appeal.
6. POINT FOR DETERMINATION
6.1. Whether, in the facts and circumstances of the present
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case, the Trial Court committed any error while returning the
plaint while exercising its power under Order 7, Rule 10 of
the CPC?
7. ANALYSIS
8. The facts hereinabove are not in dispute. It is an
undisputed fact that the movable and immovable properties of
the late Manojbhai which are subject matter of suit are
situated at Gandhidham, which is undisputedly outside the
jurisdiction of the Civil Court at Rajkot.
9. A plain reading of the prayers which are made in the
plaint would indicate that the plaintiff is not seeking any
specific performance of the Memorandum of Understanding
executed between the parties at Rajkot, but rather is claiming
her right under Hindu Law - Schedule I as a Class-I heir of
the late Manojbhai, thereby claiming her share in the
immovable and movable property of her son, the late
Manojbhai situated @ Gandhidham, Dist :- Kutch.
10. Further, the cause for filing the suit, as is also narrated
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in paragraph 11 of the plaint, would also indicate that the
entire basis of the filing is not on the basis of the
Memorandum of Understanding executed between the parties
but on claiming her right under Hindu Law - Schedule I in
the movable and immovable property of her son, the late
Manojbhai situated @ Gandhidham, Dist :- Kutch.
11. It is true that a reference to the MOU is made in the
plaint and thereby, it has been cleverly averred in paragraph
14 of the plaint that as there was an MOU executed between
the parties at Rajkot thereby, the Civil Court, Rajkot, has
jurisdiction to decide the lis between the parties.
12. It is not fathomable, as the plaintiff is not seeking any
relief on the basis of the aforesaid MOU executed between the
parties then, how a suit seeking relief by claiming a share
under Hindu Law - Schedule I in movable and immovable
properties which are situated at Gandhidham can be
maintained at the Civil Court, Rajkot.
13. To better understand the controversy involved in the
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appeal, it would be profitable to refer to Sections 16 and 20 of
the CPC, which read as under:-
"SECTION 16 OF CIVIL PROCEDURE CODE, 1908
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 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.
Explanation.--In this section "property" means property situate
in 1 [India]
SECTION 20 OF CIVIL PROCEDURE CODE, 1908
20. Other suits to be instituted where defendants reside or cause of
action arises.--Subject to the limitations aforesaid, every suit shall
be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more
than one, at the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally works for
gain; or
(b) any of the defendants, where there are more than one, at the
time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain,
providedthat in such case either the leave of the Court is given, or
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the defendants who do not reside, or carry on business, or
personally works for gain, as aforesaid, acquiesce in such
institution; or
(c) The cause of action, wholly or in part, arises
[Explanation].--A corporation shall be deemed to carry on business
at its sole or principal office in 3 [India] or, in respect of any cause
of action arising at any place where it has also a subordinate office,
at such place."
14. The plain reading of Section 16 of the CPC would clearly
indicate that when suit is instituted in relation to any movable
and immovable property, it shall have to be instituted in the
Court within the local limits of whose jurisdiction the property
is situated.
15. In such a scenario, undisputedly, all movable and
immovable properties are situated at Gandhidham, and in that
situation, as per Section 16 of the CPC, the plaintiff was
required to institute the suit at Gandhidham.
16. So far as Section 20 of the CPC is concerned, it talks
about other suits to be instituted against a defendant where
the cause of action, wholly or in part, arises; the suit shall
then have to be instituted in that court.
17. As observed hereinabove, the plaintiff is not asserting her
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right to claim share in the movable and immovable properties
of the late Manojbhai on the strength of the MOU executed
between the parties at Rajkot, but in clear terms, as mentioned
in prayer Clause 16 of the plaint, the plaintiff is asking for her
share as per Hindu Law - Schedule I in the movable and
immovable properties of her son. According to my opinion, on
plaint reading of the plaint, Section 20 of the CPC would not
be applicable to the facts of the present case.
18. It is further required to be observed that mere reference
to the MOU in the plaint would not be a ground to institute a
suit at Rajkot when no performance has been sought by the
plaintiff of such MOU and, as such, the entire cause and claim
of the plaintiff was on the basis of her claim being a Class-I
legal heir of the late Manojbhai as per Hindu Law, thereby, to
claim her share in the movable and immovable properties of
the late Manojbhai situated @ Gandhidham, Dist :-Kutch.
19. Thus, in view of the aforesaid facts and circumstances,
and after analyzing the aforesaid provisions of law and after
going through the impugned order passed by the Trial Court,
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wherein it has also referred to a decision of the Hon'ble
Supreme Court of India relied upon by the defendant, I am of
the view that there is no jurisdictional error or any gross error
of law committed by the Trial Court while returning the plaint
to the plaintiff to be presented before the competent civil court
at Gandhidham. As such, I am in complete agreement with the
reasons assigned by Trial Court while returning the plaint to
the plaintiff which is requires to be presented before competent
Civil Court, Gandhidham.
20. CONCLUSION
20.1. The Trial Court has not committed any error while
returning the plaint while exercising its power under Order 7,
Rule 10 of the CPC.
20.2. Having so found no merits in the appeal, it requires to
be dismissed and is hereby DISMISSED in limine. The civil
application is also disposed of accordingly. No order as to
costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
