Rajasthan High Court
Smt. Kamini Sharma W/O Colonel ... vs Praveen Sharma S/O Late Colonel ... on 23 February, 2021
Bench: Chandra Kumar Songara
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 4976/2019
Smt. Kamini Sharma W/o Colonel Shri Rahul Sharma D/o Late Colonel
Dr Prakash Chand Sharma, Aged About 45 Years, Resident Of House
No. 4026, D-4, Vasant Kunj, New Delhi, 110070 Presently R/o 9/3
Kariyappa Enclave, Maal Road, Merutt, Uttar Pradesh 250001
----Appellant
Versus
1. Praveen Sharma S/o Late Colonel Dr. Prakash Chand Sharma,
Aged About 53 Years, Resident of Saraswati Niwas
Meharangaon, District Nanitaal, Uttarakhand, Presently Vice
Principal, Kendriya Vidhyalaya Ranikhet 26365456
2. Smt. Kalpana Kaushik W/o Late Colonel Rajesh Kaushik D/o
Late Colonel Dr. Prakash Chand Sharma, Aged About 45 Years,
Resident of House No. 23,Negi Road, Dehradoon, Uttarakhand,
Presently C.O. 78 U.K. N.C.C.B.N. Haldawani Uttarakhand
263139
----Respondents
For Appellant(s) : Mr. Satyavrat Sharma, Advocate with
Mr. Pranav Sharma, Advocate
For Respondent(s) : Mr. Vijay Kumar Jangid, Advocate
HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA
Order
23/02/2021
Instant miscellaneous appeal under Section 104 of the Code
of Civil Procedure, 1908 readwith Order 43 Rule 1 (a) of C.P.C. has been
preferred on behalf of the plaintiff-appellant against the impugned order
dated 28.08.2019 passed by the Court of learned Additional District
Judge, No.8, Jaipur Metropolitan, Jaipur, in Civil Suit No.492/2019 titled
as Smt. Kamini Sharma Vs. Praveen Sharma & another, whereby the
suit filed by the plaintiff-appellant had been ordered to be returned in
(2 of 4) [CMA-4976/2019]
view of Order 7 Rule 10 of C.P.C. with a direction to present the suit
before the competent Court.
The brief facts, which are necessary for the disposal of the
present appeal, are that a suit for partition and perpetual injunction
against defendant-respondents had been filed by the plaintiff-appellant
before the Court of District & Sessions Judge, Jaipur Metropolitan,
Jaipur, which was later-on transferred to the Court of Additional District
Judge, No.8, Jaipur Metropolitan, Jaipur. The suit had been filed for
partition of nine immovable properties, out of which six properties are
situated at Nainital (Uttrakhand), two properties are situated at Jaipur
and one property is situated at Gurgaon and also other movable
properties. The learned Additional District & Sessions Judge, No.8,
Jaipur Metropolitan, Jaipur by invoking its power under the provisions of
Order 7 Rule 10 of C.P.C. had returned the plaint to be presented before
the competent Court on the ground that as per the provisions of Section
20 of C.P.C. the defendants are not residents of the jurisdiction of this
Court and looking to the facts, pleadings and circumstances of the case,
the suit relates to the movable property together with the immovable
property and major part of the immovable properties are not situated in
the jurisdiction of this Court and the cause of action does not arise in
the jurisdiction of this Court.
The learned counsel appearing for the plaintiff-appellant has
submitted that the learned Additional District Judge, No,.8, Jaipur
Metropolitan, Jaipur, while passing the impugned order, did not consider
the facts and material available on record. The provisions of Section 17
of C.P.C. deals with the immovable property situated within the
jurisdiction of different Courts and as per the provisions, when
immovable property is situated within the jurisdiction of different
Courts, the suit may be instituted in any Court within the local limits of
(3 of 4) [CMA-4976/2019]
whose jurisdiction any portion of the property is situated; provided that
in respect of the value of the subject matter of the suit, the entire claim
is cognizable by this Court. As such, the impugned order deserves to be
quashed and set aside.
During the course of arguments, the learned counsel
appearing for the plaintiff-appellant, has placed reliance upon a
judgment of the Hon'ble Supreme Court in the case of Madhao
Deshpande Vs. Madhav Dharmadhikaree, reported as A.I.R. 1988
S.C. 1347.
The learned counsel appearing for the defendant-
respondents, while opposing the appeal, has placed reliance upon the
judgments of the Hon'ble Supreme Court in the cases of M/s. Hanil
Era Textiles Ltd. Vs. M/s. Puromatic Filters (P) Ltd. reported as
2004 (2) W.L.C. (S.C.) Civil 135 and Sandeep Polymers Pvt. Ltd.
Vs. Bajaj Auto Ltd. & Others, reported as 2007 (2) W.L.C. (SC)
Civil) 534.
Heard learned counsel appearing for the parties and perused
the material available on record.
Section 17 of C.P.C. reads as under :-
"17. Suits for immovable property situate within
jurisdiction of different Courts. - Where a suit is to obtain
relief respecting, or compensation for wrong to, immovable
property situate within the jurisdiction of different Court, the
suit may be instituted in any Court within the local limits of
whose jurisdiction any portion of the property is situated:
(Emphasis supplied)
Provided that, in respect of the value of the subject matter of
the suit, the entire claim is cognizable by such Court."
In the case of Laxmibai Vs. Madhankar Vinayak
Kulkarni and Others, reported as A.I.R. 1968 Mysore-82, it was
held as under :-
(4 of 4) [CMA-4976/2019]
"18..................the correct rule of law in my view is that where
there is a single cause of action to recover properties situate
within the jurisdiction of different Courts, a suit can be filed in
any one of the Courts within the jurisdiction of which any one of
the suit property is situate."
In the case of Madhao Deshpande Vs. Madhav
Dharmadhikaree, (Supra), Hon'ble Supreme Court observed as
under :-
"4. The learned Civil Judge held that the award passed by the
arbitrator ought to have been filed in the court of Civil Judge,
Senior Division, Chandrapur. The learned Civil Judge held that
only a bit of property situated at Nagpur and the residence of
arbitrator at Nagpur did not give local jurisdiction to the Court
at Nagpur. He accordingly dismissed the application with the
order that award be returned for presentation to the proper
Court having legal jurisdiction. We are of the opinion that the
learned Civil Judge was in error in view of the provisions of
Sections 17 and 20 of the CPC, in holding as he did."
Judgments relied upon by learned counsel appearing for the
defendant-respondents in the cases M/s. Hanil Era Textiles Ltd. (Supra)
and Sandeep Polymers Pvt. Ltd. (Supra) fail to advance the arguments
of the respondents, as the appellant's case is based on different facts.
In the instant case, the suit properties are situated within
jurisdiction of different Courts i.e. Nainital, Jaipur and Gurgaon,
consequently, in view of Section 17 of C.P.C. the suit could be filed in
either of the Courts. The plaintiff has opted to file the suit at Jaipur
Metropolitan. District Judge at Jaipur Metropolitan has territorial
jurisdiction to try the suit regarding all the aforesaid properties in view
of express provision of Section 17 of C.P.C.
In view of the above, the appeal is allowed. The impugned
order dated 28.08.2019 is set aside. The learned Additional District
Judge, No.8, Jaipur Metropolitan, Jaipur is directed to proceed with the
matter in accordance with law.
(CHANDRA KUMAR SONGARA),J
ASHOK/30
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