Madras High Court
V.Sethu vs Executive Officer on 20 April, 2023
S.A.No.1205 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2023
CORAM
THE HONOURABLE JUSTICE Mr.V.LAKSHMINARAYANAN
S.A.No.1205 of 2010
and
C.M.P.No.7930 of 2023
V.Sethu. ...Appellant.
Vs.
1.Executive Officer,
Selection Grade,
Executive Town Panchayat,
Katpadi,
Vellore District.
2.The Director of Town
Panchayat,
Kuralagam,
Chennai - 600 108. ...Respondents.
PRAYER:Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree dated 26.04.2010 passed in
A.S.No.255 of 2009 on the file of the V Additional City Civil Judge,
Chennai, reversing the judgment and decree dated 15.11.2008 passed
in O.S.No.4690 of 2007 on the file of the VI Assistant City Civil
Judge, Chennai.
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S.A.No.1205 of 2010
For Appellant : Mr.Anand
For Respondents : Mr.P.S.Prabhu for R1
R2 : Mr.B.Tamil Nidhi
Special Government Pleader
JUDGMENT
The appellant/plaintiff is the wife of an Army Officer. He had
purchased the suit schedule mentioned property. The entire dispute is
whether the plot 5A situated in Jothi Nagar, in approved DTCP plan
77/86, bearing door No.28, Katpadi, Vellore District, had been
allocated for a park or was outside the scope of the layout. At the time
of the purchase the layout plan was annexed to the sale deed & had
been registered.
2. The plaintiff claims that her husband has title to the property
whereas, the first defendant has denied that time. While the documents
were executed in Katpadi, the plaintiff's husband had taken possession
of and has been in enjoyment of the property at Katpadi, she has filed a
suit on account of the notice issued by the second defendant, at
Chennai.
3. I have gone through the pleadings and I agree with the learned
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S.A.No.1205 of 2010
counsel for the respondent that the City Civil Court, Madras has no
territorial jurisdiction to entertain the suit. The property is situated at
Katpadi and as pointed out above, the entire cause of action has arisen
within the jurisdiction of courts at Vellore district. Merely because the
second defendant is residing within the jurisdiction of Chennai, that
does not give cause of action to the courts at Madras to seize
jurisdiction.
4. In fact, the courts at Vellore district are more convenient to the
plaintiff and the first defendant to contest the suit. Whether Plot No.5 A
exists in the approved plan or whether a gift deed was executed for the
said property by the layout developers or whether it is a subject matter
of the suit, could have been done/identified by appointment of an
Advocate Commissioner. Perhaps, since Vellore is far, more than 150
kms from chennai, an advocate commissioner was not appointed. It is
trite that courts had to deal with forum conveniens, at the time of trying
the suit.
5. I feel that the VI Assistant City Civil Court, Madras is not
forum conveniens and the appellant should have only approached the
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S.A.No.1205 of 2010
courts in Vellore for the relief sought for. The explanation given by the
learned counsel for the appellant is that the wife had filed the suit
because the husband is serving in the Army and was not available at
Vellore during the relevant time. That fact is not sufficient for
jurisdiction. In any event, parties cannot by consent confer jurisdiction.
Therefore, in the exercise of powers vested in me, under Order VII
Rule X explanation, I set aside the judgment and decree in A.S.No.255
of 2009 on the file of the V Additional City Civil Court, Chennai dated
26.04.2010, whereby the judgment and decree in O.S.No.4690 of 2007
dated 15.11.2008,VI Assistant City Civil Court, Chennai was reversed.
6. The original plaint is directed to be returned to the plaintiff for
presentation before the proper court. The Learned counsel for the
appellant, seeks liberty to amend the plaint to seek the relief of
declaration of title. The said leave is granted. The plaintiff is permitted
to amend the plaint and seek for declaration of title on payment of
appropriate court fees. The defendant is at liberty to file an additional
written statement challenging the same. Since I have dealt with only on
the issue of jurisdiction and I found that City Civil Court, Madras does
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S.A.No.1205 of 2010
not have jurisdiction, I am not imposing any cost.
7. The Office is directed to return the original documents filed by
the appellant in U.S.R.No.13983 of 2023 on 20.04.2023 to enable the
appellant to produce it before the court at Vellore. Time for return of
plaint & documents is one month. The plaintiff is granted further
period of one month excluding the ensuing vacation to present it before
the proper forum. The City Civil Court, Madras shall return the plaint
to the appellant on or before 30.06.2023. The appellant shall present its
plaint on or before 31.08.2023. As the wife of the appellant has filed
the suit, appropriate impleading application can be filed to implead
Mr.Vasu, the army personnel, who is the actual owner, as a co-plaintiff
to the suit.
8. The learned counsel appearing for the first respondent would
submit that the Katpadi Town Panchayat has since been merged with
Vellore Municipal Corporation. The appellant shall take an appropriate
application to substitute the Vellore Municipal Corporation in place of
Katpdi Municipality.
9. In fine, this Second Appeal stands allowed. The decree in
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S.A.No.1205 of 2010
A.S.No.255 of 2009 on the file of the V Additional City Civil Court is
set aside. Similarly, the decree of the VI Assistant City Civil Court in
O.S.No.4690 of 2003 dated 15.11.2008 is also set aside. The plaint is
directed to be returned to the plaintiff. No costs. Consequently,
connected Miscellaneous Petition is closed.
20.04.2023
Index : Yes/No
Speaking : Yes/No
Neutral Citations : Yes/No
nst
Note to Office: Plaint may be returned on substitution with certified
copies of the plaint and documents.
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S.A.No.1205 of 2010
To:
1.The VI Assistant City Civil Judge
Chennai.
2.V Additional Judge, City Civil Court,
Chennai.
3. Record Keeper
VR Section
High Court of Madras
Chennai.
https://www.mhc.tn.gov.in/judis
S.A.No.1205 of 2010
V.LAKSHMINARAYANAN. J,
nst
S.A.No.1205 of 2010
and
C.M.P.No.7930 of 2023
20.04.2023
(1/2)
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