IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 21955 of 2007(L) -------------------------- CMA.45/2006 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.1111/2004 of II ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): --------------- 1. BAHULEYAN, S/O. KAMAPALAN, HINDU, AGED 55 YEARS, D-27, KEEZHEVILAKATHU VEEDU, MAITHRI NAGAR, VALIYAVILA, THIRUMALA, THIRUVANANTHAPURAM. 2. K.SHAJI, S/O. KAMAPALAN, HINDU, AGED 45 YEARS, D-27, MAITHRI NAGAR, VALIYAVILA, THIRUMALA, THIRUVANANTHAPURAM. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): --------------- GOMATHI, D/O. NALINI, AGED 74 YEARS, TC 15/1481, KAILASAM, LALBAGH ROAD, DPI JUNCTION AND STATED TO BE REP. BY HER NEXT FRIEND AND GUARDIAN, THANKAPPAN, S/O. KAMAPALAN, SRUTHI, D-26, MAITHRI NAGAR, VALIYAVILA, THIRUMALA, THIRUVANANTHAPURAM. ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.NO.21955 OF 2007 PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE SUIT AS O.S.NO.1111/04 FILED BY THE RESPONDENT WITH AFFIDAVIT BEFORE THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM DATED 22-07-2004 EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT WITH AFFIDAVIT FILED BY THE PETITIONER IN O.S.NO.1111/2004 DATED 29-11-2005 EXT.P3 TRUE COPY OF THE JUDGMENT IN O.S.NO.1111/04 DATED 15-3-06 PASSED BY THE COURT OF THE II. ADDL. MUNSIFF, THIRUVANANTHAPURAM EXT.P4 TRUE COPY OF THE APPEAL AS C.M.A.NO.45/06 FILED BY THE RESPONDENT BEFORE THE PRINCIPAL DISTRICT JUDGE, THIRUVANANTHAPURAM DATED 30-6-2006 EXT.P5 TRUE COPY OF THE JUDGMENT DATED 22-01-2007 IN C.M.A.NO. 45/06 PASSED BY THE II ADDL. DISTRICT JUDGE, THIRUVANANTHAPURAM /True Copy/ PA to Judge PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 21955 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of February, 2009 JUDGMENT Under challenge in this writ petition under Article 227 of the Constitution is Ext.P5 judgment of the Second Additional District Judge, Thiruvananthapuram setting aside Ext.P3 decision of the Second Addl. Munsiff, Thiruvananthapuram answering issue No.1 regarding the territorial jurisdiction of that court to try Ext.P1 suit. The parties will be referred to as they were before the trial court. Ext.P1 suit was instituted by the plaintiff before the Munsiff Court, Thiruvananthapuram seeking a decree of cancellation of settlement deed Nos. 2719 of 2001 and 2720 of 2001 both dated 26-07-2001 of the Sub Registry, Thiruvananthapuram in favour of the second defendant and the first defendant respectively. Ext.P1 suit is in respect of two items of immovable properties and one item is situated at Varkkala, a place within the territorial limits of the Varkkala Munsiff Court and the other item is situated in a place within the territorial limits of Neyyattinkara Munsiff court. The suit was instituted before WPC.No.21955/07 2 Thiruvananthapuram court on the allegation that the settlement deeds were executed at Thiruvananthapuram and hence the cause of action for the suit has arisen at Thiruvananthapuram. 2. The defendants filed Ext.P2 written statement contending that the Thiruvananthapuram court has no territorial jurisdiction. The learned Munsiff under Ext.P3 order found that the suit was governed by Section 16(d) of the Code of Civil Procedure and repelled the contention of the plaintiff that it is Section 20 of the CPC which governs the suit for the purpose of jurisdiction. The learned District Judge in appeal, noticed that there was an allegation in the plaint that fraud was committed and the document was admittedly executed within the limits of the Munsiff Court, Thiruvananthapuram. The court also noticed that the defendants are residing within the territorial limits of the Munsiff Court, Thiruvananthapuram. According to the learned District Judge, it is true that the right for which the suit was filed is affecting the immovable properties and looking at the issue in that way, it is the Munsiff Court, Varkkala or the Munsiff Court at Neyyattinkara which will have jurisdiction. But according to the learned Judge, since WPC.No.21955/07 3 fraud is alleged and when the ambit of Section 20 of CPC is considered and taking into account the circumstance that both the parties are residing within the limits of Thiruvananthapuram Court, Ext.P3 was liable to be set aside. Accordingly Ext.P3 was set aside and the Thiruvananthapuram court was directed to proceed with the suit in accordance with law. 3. Very learned submissions were addressed before me by Sri.V. Suresh, learned counsel for the petitioner defendant and by Sri.V.Manu, learned counsel for the respondent plaintiff. My attention was drawn by Sri.Suresh to Sections 16 and 20 of the Code of Civil Procedure and to the judgment of the Supreme Court in Harhad Chiman Lal Modi v. DLF Universal Ltd. and Another ( 2005(7) Supreme Court Cases 791) . Per contra, Sri.V.Manu would make able and sincere endeavour to distinguish the present case on facts from the case decided in Harhad Chiman Lal Modi v. DLF Universal Ltd. and Another ( 2005(7) Supreme Court Cases 791). Strong reliance was placed by Sri.Manu on the judgment of a Division Bench of the Madras High Court in Ranganatha Rao v. Rama Pandithar and WPC.No.21955/07 4 others ( AIR 1923 Madras 108). Sri.Manu relied also on the judgment of the Patna High Court in Raj Kumar Singh v. Raj Keswar Koeri and others ( AIR 1917 Patna 598). 4. It will be noticed again that it was in a very able and commendable manner that Sri.Manu endeavoured to sustain Ext.P5 order passed by the District Judge. But in my opinion the judgment of the Supreme Court in Harhad Chiman Lal Modi v. DLF Universal Ltd. and Another ( 2005(7) Supreme Court Cases 791) should decide the issue in favour of the petitioner. As noticed by the Supreme Court, Sections 15 to 20 of the Code contain detailed provisions regarding the jurisdiction of the court. It is those provisions which regulate the forum of the suit. Section 16, according to the Supreme Court recognises the well established principle that actions against res or property should be brought in the forum where such res is situated. A court within whose territorial jurisdiction the property is not situated does not have power to deal with and decide the rights or interests in such property. According to the Supreme Court, a court has no jurisdiction in dispute in which it cannot give an effective judgment. WPC.No.21955/07 5 Section 16(d) says that suits for the determination of any other right to or interest in immovable property are to be instituted where subject matter of the suit is situated. Only if Section 16 does not apply, Section 20 will come into play. Section 20 begins with the words “ subject to the limitations aforesaid”. Thus Section 20 is subject to the limitations set out by Section 16. Section 20 is a residuary section and can cover those cases which do not fall within Section 16 or for that matter Sections 15, 17 and 19. The learned Munsiff in my opinion was right in concluding that it is Section 16(d) which applied in the case and hence it was the court at Varkkala or Neyyattinkara which was having jurisdiction to try the suits. The result of the above discussion is that the writ petition stands allowed. Ext.P5 is set aside and Ext.P3 is restored. The plaintiff is given one month's time to file application under Order VII Rule 10 A CPC. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.21955/07 6