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2016 Supreme(All) 1166
ALLAHABAD HIGH COURT
BEFORE : ATTAU RAHMAN MASOODI, J.
M/s. KANDARP CONSTRUCTION INDIA PVT.LTD. .....Revisionist
Versus
BRIJESH PATHAK AND OTHERS .....Opposite Party
(Civil Revision No. 89 of 2015, decided on 22nd September, 2016)
Counsel :
Brijesh Kumar Saxena and Ritesh Kumar Srivastava for the Revisionist; Abhinav N. Trivedi for the Opposite Party.
Headnote:(A) Code of Civil Procedure, 1908—Order XLI, Rule 1, Rule 2, Order VII Rule 10, 10A, Section 21—General Rules (Civil)—Rule 35—Civil Suit—Preliminary issue—Relating to the territorial jurisdiction—Framing of—On the basis of an objection raised by the defendant before filing a written statement—Illegality/Legality—Plaintiff did not choose to avail the benefit of Order VII, Rule 10 and 10A CPC—therefore, in a contested case where the question of jurisdiction has arisen before a Court—An issue of law by virtue of Order XIV, Rule 1 can be framed even before filing of a written statement—Provided there are allegations made on oath by the parties—In the instant case, apart from the pleadings set out in the plaint supported by affidavit—Objections on oath were filed by the revisionist on affidavit were duly replied by the opposite party/plaintiff on affidavit—Constituted adequate material for dealing with the preliminary issue—As such, contention of the opposite party that such an issue can be tried only after filing written statement rejected—Particularly when Order XIV, Rule 2 empowers the Court to dispose of a case on preliminary issue. [Paras 16, 20 and 21]
(B) Code of Civil Procedure, 1908—Order XIV, Rule 1, Section 16 (d)—Specific Relief Act, 1963—Section 38—Suit—Maintainability—Preliminary objection of territorial jurisdiction to—Suit for specific performance—Relief of perpetual injunction prayed in the suit—Relate to the immovable property—Hence Section 16 (d) CPC would be attracted—Held, in a situation where any part of the relief is governed under Section 16 (d) CPC, jurisdiction of the Court will have to be determined accordingly—Even though the relief of specific performance simpliciter may lie within the jurisdiction of Court below—But the relief as a whole not being within its territorial jurisdiction—Suit cannot proceed as the application of Section 16 (d) CPC is inescapable—And the relief of perpetual injunction being a relief in relation to land—Renders the suit proceedings as non-maintainable. [Paras 24, 25, 26 and 28]
(C) Code of Civil Procedure, 1908—Section 24 (5), Order VII, Rule 10A—Suit—Transfer of—Relief sought by the plaintiff is partly or wholly not triable before the Court where the suit is instituted—Transfer of suit under Section 24 (5) of CPC to the Court of competent jurisdiction instead of returning the plaint in terms of Order VII, Rule 10A—Illegality/Legality—Both the parties at this stage, have agreed that they shall have no objection if the suit proceedings are transferred at the stage at which they are pending—On the fact, proceedings pending before the Court where the suit had been instituted, transferred to the Court of competent jurisdiction. [Para 30]
Hon’ble Attau Rahman Masoodi, J.—This revision filed under Section 115 of Code of Civil Procedure is directed against the judgment/order dated 28.5.2015 passed in Regular Suit No. 2887 of 2014 whereby preliminary objection i.e. lack of territorial jurisdiction of the Court below raised by the revisionist/defendant, giving rise to a preliminary issue, has been decided against him and the suit has been held to be rightly filed before the Court of Civil Judge, Senior Division, Mohanlalganj, Lucknow instead of returning the plaint for being filed before the Court of Civil Judge, Senior Division, Malihabad, Lucknow, within whose territorial jurisdiction the immovable property is situated.
2. The impugned order passed by the Court below gives rise to the following questions of law:
(1) Whether a preliminary issue relating to the territorial jurisdiction of a Court can be framed on the basis of an objection raised by the defendant before filing a written statement and if yes, as to what would be the manner of deciding such an objection;
(2) Whether the relief sought in the suit at hand essentially relates to a dispute in relation to immovable property and consequently the objection of territorial jurisdiction raised would be maintainable;
(3) In a situation where relief sought by the plaintiff is partly or wholly not triable before the Court where the suit is instituted, whether such a proceeding can be transferred by virtue of the powers conferred on this Court under Section 24 (5) of CPC to the Court of competent jurisdiction instead of returning the plaint in terms of Order VII Rule 10A.
Background
3. Briefly stated, facts of the case are that a suit for specific performance coupled with a relief of perpetual injunction was instituted before the Court of Civil Judge, Senior Division, Mohanlalganj and at the time of filing of the suit, the Munsarim, in terms of Rule 35 of General Rules (Civil), endorsed his report by making a specific mention that the immovable property described in the plaint was situated beyond the territorial jurisdiction of Civil Judge, Senior Division, Mohanlalganj but having regard to the cause of action set out in paragraph 34 of the plaint which recited the execution of sale agreement before the Sub-Registrar, Lucknow the territorial jurisdiction of Civil Judge, Senior Division, Mohanlalganj on that premise was reported as maintainable. At the time of admission of the suit, the plaintiff appears to have contested the report submitted by the Munsarim on the basis of factum of registration of sale agreement. The Court recording, prima facie, satisfaction in the order dated 23.12.2014 proceeded to invite written statement/objections from the defendants, however, the question as to the territorial jurisdiction was left open to be dealt with after the written statement/objections were filed.
4. After dealing with the objection reported by the Munsarim at the time of admission of the suit in the manner stated above, the Court passed an order on 23.12.2014 separately on the application filed under Order XXXIX Rule 1 and 2, granting ex-parte temporary injunction on the same date and posted the suit for disposal of objections on temporary injunction on 2.1.2015.
5. It is an admitted position of fact that the immovable property described in the plaint is beyond the territorial jurisdiction of Civil Judge, Senior Division, Mohanlalganj and none of the defendants as described in the plaint are residents of a place that would confer territorial jurisdiction of the cause on ‘Mohanlalganj Court’ in terms of Section 16 (d) CPC or the proviso appended thereto, on any ground whatsoever. The suit filed was nevertheless registered subject to objections as is evident from the order dated 23.12.2014 which was passed separately simultaneous to the order granting ex-parte interim injunction.
6. In the context of the order passed by the Court below on 23.12.2014 registering the suit, specific objections were filed against t
