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1995 Supreme(Mad) 447
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE GOVARDHAN
Shameem Ahmed and Etc. - Appellant
Versus
The Egmore Benefit Society Ltd. and Others, Etc. - Respondents
C.S. No.1901 of 1994, O.A. No.1335 of 1994 and A. Nos.1062, 1063,965 and 966 of 1995
Decided On : 19 April 1995
A suit for declaration and injunction in respect of immovable property situated outside the jurisdiction of the High Court is not maintainable in the High Court.
Headnote:
JURISDICTION - SUIT FOR LAND - LEAVE TO SUE - REVOCATION - LETTERS PATENT, CLAUSE 12 - CODE OF CIVIL PROCEDURE, SECTION 24 - WRIT JURISDICTION - SCOPE - IMMOVABLE PROPERTY SITUATED OUTSIDE JURISDICTION - WHETHER SUIT MAINTAINABLE IN HIGH COURT - HELD, NO.
Fact of the Case:
The applicant filed a suit in the High Court for a declaration that a mortgage deed created by the respondents in favor of the first respondent comprising of undivided half share of the applicant in C Schedule property is invalid and illegal, and for permanent injunction restraining the defendants from transferring, alienating or encumbering the said property. The respondents filed an application to revoke the leave granted to the applicant to file the suit in the High Court, contending that the suit was not maintainable in the High Court as the property was situated outside the jurisdiction of the High Court.
Finding of the Court:
The High Court held that the suit was a "suit for land" within the meaning of Clause 12 of the Letters Patent, and therefore, the High Court did not have jurisdiction to entertain the suit as the property was situated outside the jurisdiction of the High Court. The High Court also held that Section 24 of the Code of Civil Procedure did not apply as there was no suit pending in any other Court which could be transferred to the High Court.
Issues: Whether the High Court had jurisdiction to entertain the suit for declaration and injunction in respect of immovable property situated outside the jurisdiction of the High Court.
Ratio Decidendi: The High Court relied on the decision of the Federal Court in Moolji Jaitha and Co. v. K.S. and W. Mills Co., 1950 AIR(FC) 83, which held that a "suit for land" includes suits for the determination of title to land, suits for possession of land, and other suits in which the reliefs claimed, if granted, would directly affect title to or possession of land. The High Court also relied on the decision of the Madras High Court in Muthukumaraswamy in re, (1970) 2 Mad LJ 328, which held that a suit for a decision on the title to immovable property situated outside the jurisdiction of the Court is not maintainable in the High Court.
Final Decision: The High Court revoked the leave granted to the applicant to file the suit in the High Court and ordered the plaint to be returned for presentation before the proper Court.
In Application No.7155/1994 the applicant in his affidavit contends as follows: The applicant has filed the suit for declaring that the mortgage deed dated 1-8-1994 created by the respondents 2 to 6 in favour of the first respondent comprising of undivided half share of the applicant in C Schedule property is invalid and illegal. The suit is also for granting permanent injunction restraining the defendants in any manner transferring, alienating or encumbering the said property. The respondents-defendants are residing and carrying on business at Madras. The property is situated outside the jurisdiction of this Court. Hence the application.
2. Leave to sue was granted on this application on 14-12-1994.
3. The respondents filed A. No.965/1995 to revoke the leave granted contending as follows: The dispute in question is in respect of land only. No part of cause of action had arisen within the jurisdiction of this Court. Suit in question being-one with reference to immovable property which is outside the ordinary. Original Civil jurisdiction of this Court, the Court has no jurisdiction to entertain the matter and consequently the leave granted will have to be revoked. Averments in the counter with regard to the merits of the case are not extracted, since they are not material to this application.
4. The question before us, is whether the leave granted by this Court on 14-12-1994 to the plaintiff, to file the suit in this Court is liable to be revoked?
5. The learned counsel appearing for the applicant in A. No. 7155(1994 would argue that the subject matter of the present suit was the same subject matter of C.S. No.318/1952 which was entertained by this Court and therefore, the plaintiff is entitled to file the suit in this Court. In the affidavit filed by the applicant to leave to sue, it was not stated by the applicant that he is filing the suit in this Court, on account of the fact that C.S. No.318/1952 was entertained in this Court and that the subject matter of the said suit is the suit property herein. The argument of the learned counsel appearing for the applicant that a plea on the basis of the maintainability of C.S. No.318/1952 on the file of this Court cannot be entertained, since it is an elementary principle that there cannot be any evidence or argument in respect of a fact which has not been pleaded by the litigant.
6. The learned counsel appearing for the applicant has also argued that Section 24 of the Code of Civil Procedure provides any suit being transferred, or transfer of any suit pending on the file of any other Court to the High Court and on that ground, the suit can be entertained in this Court. Section 24 of the Code of Civil Procedure deals with the general power of transfer and withdrawal. of suits, appeals or other proceedings pending before the subordinate Courts to the High Court or District Court for trial or disposal to any Court subordinate to them and competent to try or dispose of the same, or withdraw any suit, appeal or other proceedings pending in any Court subordinate to them. In the present case, no suit is pending in any Court to enable this Court to withdraw it and entertain it. The present suit is filed even at the filing stage only in the High Court and therefore, the argument of the learned counsel appearing for the applicant that under Section 24 of the Code of Civil Procedure, the Court can entertain the present suit in this Court is without merits and is to be rejected.
6A. The learned counsel appearing for the applicant has argued that Writ Petitions are filed in the High Court in respect of properties situate outside Madras City and on the same analogy, this suit can also be filed in this Court. In the State of Tamil Nadu, the only Court which has got Writ Jurisdiction is the High Court of Madras. Therefore, when there is a cause of action for a litigant to invoke the Writ Jurisdiction .of the High Court, in respect of an immovable, property situated outside the City limits of
