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2011 Supreme(Mad) 4222
High Court of Judicature at Madras
R. BANUMATHI & R. MALA
S. Kunasekaran & Others
Versus
S. Theivendran & Others
O.S.A.Nos.229 & 230 of 2011 & M.P.Nos.1 of 2011, 2 of 2011 & 3 of 2011
Decided on : 14-10-2011
For the Appellants:R. Thiagarajan, Advocate.
For the Respondents:A.K. Mylsamy, M/s. A.K. Mylsamy & Associates, A. Palaniappan, Advocates.
The main legal point established in the judgment is the interpretation of Clause 12 of the Letters Patent and the applicability of Sections 16, 17, 20 of the Civil Procedure Code, 1908, in determining the jurisdiction of the High Court to entertain a suit for partition.
Headnote:
Jurisdiction - Suit for Partition - Clause 12 of the Letters Patent - [PARTITION] - [Clause 12 of the Letters Patent] - [Sections 16, 17, 20 of the Civil Procedure Code, 1908, FOOD CORPORATION OF INDIA VS. M/S.EVDOMEN CORPORATION (AIR 1999 SC 2352), A.GIRIDHAR AND ANOTHER VS. A.SURESH AND OTHERS (1988-2-L.W.308), M/S.MOOLJI JITHA AND COMPANY VS. THE KHANDESH SPINNING & WEAVING MILLS COMPANY LIMITED (AIR 1950 FC 83), TAMIRAPARANI INVESTMENTS PRIVATE LIMTIEDVS. METFILMS PVT.LTD. ((2006) 1 MLJ 357), Kusum Ingots and Alloys Limited v. Union of India and another (2004) 6 SCC 254] - The court discussed the interpretation of Clause 12 of the Letters Patent and the applicability of Sections 16, 17, 20 of the Civil Procedure Code, 1908, along with relevant case laws. The court held that the High Court would have jurisdiction to entertain the suit for partition only in respect of the land or immovable properties situated within its jurisdiction. The court also considered the nature of the suit and its purpose, emphasizing that the suit for partition falls within the first limb of Clause 12, and therefore, the High Court has no jurisdiction to entertain the suit for partition of the lands lying outside its jurisdiction.
Fact of the Case:
The plaintiffs filed a suit for partition and separate possession of properties, seeking relief under a Will and for division of properties into five equal parts. The defendants contested the jurisdiction of the High Court to entertain the suit, leading to the revocation of the leave granted for institution of the suit.
Finding of the Court:
The court found that the suit for partition involved immovable properties situated outside the jurisdiction of the High Court, and therefore, the High Court did not have jurisdiction to entertain the suit. The court also rejected the argument that the suit was maintainable due to the presence of some properties within the jurisdiction.
Issues: The main issue was whether the High Court had jurisdiction to entertain the suit for partition of properties situated outside its jurisdiction.
Ratio Decidendi: The court's decision was based on the interpretation of Clause 12 of the Letters Patent and relevant case laws, emphasizing that the High Court would have jurisdiction to entertain the suit for partition only in respect of the land or immovable properties situated within its jurisdiction.
Final Decision: The court dismissed the appeals, directed the registry to return the plaint to the appellants, and granted them liberty to file the plaint before the appropriate court within a specified period.
R. BANUMATHI, J
1. These appeals are preferred against the common order dated 20.4.2011 made in Application Nos.4804 and 5369 of 2010 respectively in Application No.2530 of 2010 in C.S.No.643 of 2010 revoking the leave granted for institution of the suit. The plaintiffs are the appellants.
2. The plaintiffs have filed the suit - C.S.No.643 of 2010 for the following reliefs:
(a) partition and separate possession of the suit properties claiming under a Will dated 4.8.2005 and for division of the properties into five equal parts and allot one such share to the plaintiffs;
(b) permanent injunction restraining the defendants, their men, agents and servants from encumbering, alienating or dealing with the properties or creating any third parties' interest in the suit properties; - and -
(c) permanent injunction restraining the defendants, their men, agents and servants and persons from effecting transfer of shares in the Companies viz., M/s.Paris Dakner Microsphenules P.Ltd., (Defendant No.18) and M/s.Swiss Garnier Life Sciences (Defendant No.19).
3. Defendant Nos. 1 to 4 are residing at Erode and defendant Nos.5 to 8 are residing at Chennai and defendant Nos.9 to 17 are residing at Alandur. The 18th defendant (M/s.Paris Dakner Microsphenules P.Ltd.) is a Company registered under the Companies Act stated to be having its registered office in Chennai. The 19th defendant (M/s.Swiss Garnier Life Sciences) is a partnership firm having its registered office at Alandur, Chennai, which is outside the jurisdiction of this High Court. Suit 'A', 'B', 'C' and 'D' schedule properties are in Pallapatti, Nilakottai Taluk in Dindigul District. Suit 'E' and 'F' schedule properties are situated in Alandur, Chengalpattu District. Alleging that the properties are located at Chennai and some of the other properties are located outside the jurisdiction and that some of the defendants are also residing outside the jurisdiction, plaintiffs filed Application No.2530 of 2010 under Clause 12 of the Letters Patent seeking leave to sue. In the said application, by the Order dated 27.4.2010, leave was granted.
4. Defendants 9 to 12 entered appearance and filed application - A.No.4804 of 2010 and defendant Nos.1 to 4 and 13 to 17 filed A.No.5369 of 2010 to revoke the leave. The defendants alleged that the suit - C.S.No.643 of 2010 is for partition and separate possession of the properties and none of the properties in the Suit Schedules 'A' to 'E' are situated within the original jurisdiction of the High Court and that the Court has no jurisdiction to entertain the suit.
5. Upon consideration of the rival contentions of both parties, the learned single Judge held that the suit is for partition and separate possession and 'A' to 'E' schedule properties and they are all immovable properties situated outside the jurisdiction of the High Court and in so far as immovable properties are concerned, High Court will not have any jurisdiction to entertain the partition suit. In so far as Defendant No.18 (M/s.Paris Dakner Microsphenules P.Ltd.), the learned single Judge observed that the address of the Company having registered office at Chennai is denied and even if the registered office of the Company is situated in Chennai, on the ground of Forum convenience, the suit cannot be entertained. On those findings, by the impugned order, dated 20.4.2011, the learned Judge revoked the leave granted.
6. Being aggrieved by the revocation of leave, the plaintiffs have preferred these appeals. The learned counsel for appellants Mr.R.Thiagarajan has contended that the learned single Judge did not keep in view that the prayer 'C' in the Suit relates to effecting of transfer of shares in Defendant Nos.18 and 19 companies, which are having registered office within the jurisdiction of the High Court. Laying emphasis upon the second limb of Clause 12 of the Letters Patent and placing reliance upon a decision of the Supreme Court in the case of FOOD CORPORATION OF INDIA VS. M/S.EV
