Court No. - 9 Case :- CIVIL REVISION No. - 180 of 2019 Revisionist :- Nasreen Khan Opposite Party :- Mohd. Sultan Khan Counsel for Revisionist :- Parvez Alam,Arvind Srivastava Counsel for Opposite Party :- Komal Mehrotra
Hon'ble Jayant Banerji,J.
Heard Sri Arvind Srivastava, learned counsel for the revisionist and Sri Komal Mehrotra, learned counsel appearing for the sole respondent.
This revision has been filed against the order dated 3.1.2019, passed by the Civil Judge (Senior Division), Allahabad in Misc. Application No. 15 of 2018 and the order dated 11.12.2017, passed by the Civil Judge (Senior Division), Allahabad in Misc. Case No. 674 of 2017 (Smt. Nasreen Khan Vs. Mohd. Sultan Khan).
By the order dated 11.12.2017, the application filed by the plaintiff-revisionist bearing Paper No. 10-C which is an objection to the Munsarim report was rejected. Further, by means of order dated 3.1.2019, the application of the plaintiff-revisionist seeking recall of the order dated 11.12.2017 has been rejected.
The plaintiff-revisionist instituted a suit against the respondent for declaration with respect to separate immoveable properties situated in District Allahabad and Sultanpur.
As appears from perusal of paragraph No. 10 of the affidavit filed by the plaintiff-revisionist in this revision, the Munsarim at the office of the court below reported that one house is situated in district Allahabad and another house is situated in district Sultanpur and, therefore, necessary directions are required from the court. Against the aforesaid Munsarim report, the plaintiff-revisionist filed her objection stating that under the provisions of Section 17 of the Code of Civil Procedure (CPC), the court of Civil Judge (Senior Division), Allahabad has jurisdiction to entertain the suit and grant the reliefs claimed.
By means of the impugned order dated 11.12.2017, the court below rejected the application. The court, while rejecting the application has observed that the properties in dispute for which declaration has been sought which are situated in Allahabad and Sultanpur do not pertain to any contract. As such, a declaratory decree can be passed only by that court having jurisdiction in the matter. The District Court at Allahabad has the jurisdiction to pass declaratory decree with regard to the property situated within district Allahabad and not with regard to the property situated in district Sultanpur. The court below has referred to judgements in the matter of Central Bank of India Vs. Shivam Udyog [(1995) 2 SCC 74] and Madho Deshpande Vs. Madho Dharmadhikaree [AIR 1988 SC 1347].
It is contended by the learned counsel for the revisionist that the word "property" occurring in section 17 of C.P.C. although has been used in "singular" but by virtue of Section 13 of the General Clauses Act, it may also be read as "plural" i.e." properties". It is further his contention that a suit in respect of more than one property situated under jurisdiction of different courts can be instituted in a court within local limits of the jurisdiction where one or more properties are situated provided the suit is based on same cause of action with respect to the properties situated in jurisdiction of different courts. In support of his contention, learned counsel has relied upon a judgement of the Supreme Court dated 6.2.2019 passed in Civil Appeal No. 1052 of 2019 [Shivnarayan (D) by Lrs. Vs. Maniklal (D) Thr. Lrs. and others].
Sri Komal Mehrotra, learned counsel appearing for the respondent states that since a pure question of law is involved in this matter, this issue can be adjudicated by the court at this initial stage without calling for a counter affidavit. Learned counsel has fairly conceded that the order passed by the court below may be revised.
A perusal of the judgements on which the court below has relied upon reveals that they are inapplicable to the facts of the instant case. In the case of Madho Deshpande (supra), the Supreme Court was considering the rejection of the revisionist's application summarily by the High Court when the Civil Judge had held that the award was wrongly presented in his court and he had no jurisdiction to go into the question of validity of the award. The District Judge had dismissed the application on the ground that Nagpur was not the court to have jurisdiction to entertain the application. The order of the High Court was found to be erroneous and were set aside and the appeal was allowed.
In the case of Central Bank of India (supra), the issue with regard to jurisdiction of the courts where the immoveable properties are situated within the local limits or jurisdiction of different courts was not the issue and that case had a different factual matrix. As such both the aforesaid judgements are distinguishable.
The present case was a suit for declaration in respect of properties situated within local limits of jurisdiction of district court at Allahabad and at Sultanpur. The provision of Section 17 CPC deals as follows:-
"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 situate:
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 Shivnarayan (supra), with regard to the ambit and scope of section 17 CPC, the Supreme Court has held as follows:
"28. Sections 16 and 17 of the C.P.C. are part of the one statutory scheme. Section 16 contains general principle that suits are to be instituted where subject-matter is situate whereas Section 17 engrafts an exception to the general rule as occurring in Section 16. From the foregoing discussions, we arrive at following conclusions with regard to ambit and scope of Section 17 of C.P.C.
(i) The word ‘property’ occurring in Section 17 although has been used in ‘singular’ but by virtue of Section 13 of the General Clauses Act it may also be read as ‘plural’, i.e., ”properties”.
(ii) The expression any portion of the property can be read as portion of one or more properties situated in jurisdiction of different courts and can be also read as portion of several properties situated in jurisdiction of different courts.
(iii) A suit in respect to immovable property or properties situate in jurisdiction of different courts may be instituted in any court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated.
(iv) A suit in respect to more than one property situated in jurisdiction of different courts can be instituted in a court within local limits of jurisdiction where one or more properties are situated provided suit is based on same cause of action with respect to the properties situated in jurisdiction of different courts".
The aforesaid suit was filed by the plaintiff-revisionist in respect of the scheduled property appearing at list 'Aa' and 'Ba' at the foot of the plaint. The relief sought was of declaration that the plaintiff-revisionist is co-owner and share-holder of the properties appearing in list 'Aa' and, accordingly, entries be corrected in the Khasra maintained by the Nagar Nigam. Another declaration was sought to the effect that the plaintiff-revisionist is the sole owner of the property appearing at list 'Ba' in the schedule at the foot of the plaint and that the defendant-respondent has no concern with the same and, accordingly, the entries made in the Khasra of Nagar Nigam/Nagar Palika Parishad be corrected.
The plaint allegation is that the plaintiff-revisionist was married to defendant-respondent and the father of the defendant-respondent late Mohd. Wasim Khan had made an oral Hiba in her favour on 25.7.2003 which was accepted by the plaintiff-revisionist in presence of witnesses in respect of the property mentioned in the schedule of the plaint. It was stated that after death of Mohd. Wasim Khan on 29.4.2004, the defendant- respondent had got blank papers signed by the plaintiff- revisionist and said that he would get necessary mutation done in the record of the Nagar Nigam/Nagar Palika Parishad in respect of the properties mentioned in schedule of the plaint in favour of the plaintiff-revisionist. It appears that thereafter when enquiries were made by her, it was discovered that the defendant-respondent had got the mutation of the scheduled property done exclusively in his favour. Under these circumstances, the suit was filed.
A perusal of the contents of the plaint, therefore, reveals that the suit is based on the same cause of action with respect to the properties situated in the jurisdiction of court at Allahabad ( now Prayagraj) and Sultanpur.
As observed in the case of Shivnarayan, it is only when the cause of action for filing the suit is different, the court have not upheld the jurisdiction of the court to entertain the suit pertaining to the properties situated in different courts.
In view of the aforesaid, the suit has been correctly instituted by the plaintiff-revisionist in the district court at Allahabad. The only restriction placed in section 17 CPC is mentioned in the proviso which is that in respect of value of the subject matter of the suit, the entire claim would be cognizable by that court. In paragraph 13 of the plaint that has been enclosed as Annexure-3 to the affidavit, the valuation of the suit property has been stated to be 1,12,71,420/-. The suit was filed before the Civil Judge (Senior Division), Allahabad. Under Bengal, Agra and Assam Civil Courts Act, 1887, there exist no upper limit of the pecuniary jurisdiction of a Civil Judge (Senior Division). Therefore, the entire claim would be cognizable by the court of Civil Judge (Senior Division), Allahabad. The suit would not be covered by the proviso of Section 17 of CPC.
It is made clear that the observations made above are only for purpose of adjudicating the present revision and shall have no bearing on the adjudication of the case by the courts below.
In view of the aforesaid, this revision succeeds and is allowed. The orders impugned dated 11.12.2017 and 3.1.2019 are set aside.
Order Date :- 18.12.2019 sfa/ Digitally signed by Justice Jayant Banerji Date: 2019.12.20 15:37:19 IST Reason: Document Owner Location: High Court of Judicature at Allahabad