: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.102 OF 1991 WITH CIVIL APPLICATION NO.539 OF 1997 Mrs.Bhanu Natwarlal Kotak ..Appellant. Vs. Kanaiyalal Ratilal Ponda & Ors. ..Respondents. Mr.N.V.Gangal for the Appellant. Mr.K.S.Dewal for Respondent Nos.1A to 1C. Mr.Dinesh Shah i/b.Mrs.Nalini V. Shah for Respondent Nos.3 to 10. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. DATED : 3RD JUNE, 2008 DATED : 3RD JUNE, 2008 DATED : 3RD JUNE, 2008 P.C. : P.C. : P.C. : 1. This is an Appeal against the order of the learned Judge of the Bombay City Civil Court dismissing the suit on the preliminary issue of jurisdiction raised by Defendant No.2. The parties before me are the same as they are in the suit. 2. The suit was filed by one of the sisters against her brothers and sisters inter-alia for the administration of the estate of her deceased father. During the pendency of the suit some of the Defendants had expired and their heirs have been brought on record. : 2 : 3. Defendant Nos.1 and 2 are the only contesting Defendants. Defendant Nos.3 to 10 have supported the Plaintiff. The learned Judge held that the Mumbai City Civil Court had no territorial jurisdiction. 4. Whether the matter is viewed under Section 16 or Section 20 of the C.P.C. would make no difference. The Mumbai City Civil Court would have territorial jurisdiction. Section 16 of the C.P.C. read as under :- "16. Suits to be instituted where 16. Suits to be instituted where 16. Suits to be instituted where subject-matter situate.- subject-matter situate.- subject-matter situate.-Subject to the pecuniary or other limitations prescribed by any law, suits- (a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, : 3 : (f) for the recovery of immovable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain." 5. It was contended that in view of clause (d) of Section 16 the Mumbai City Civil Court had no jurisdiction. It is important to note however that one of the properties is stated to be within the jurisdiction of the trial Court. It was contended however that the property had been alienated prior to the date of filing of the suit. That the property is situated within the jurisdiction of the trial Court is admitted. That it was alienated prior to the institution of the suit is denied by the Plaintiff. The onus therefore must really be on : 4 : Defendant Nos.1 and 2 to establish the same. They chose not to lead any evidence in this regard. I do not see how then it could have been held that the Defendant’s case in this regard had been established. Mere affidavit evidence would not suffice in such a case, specially where the parties have not agreed to the matter being decided only on affidavits. 6. In paragraph 19 of the impugned judgment, the learned Judge has dealt with the contention of the learned counsel appearing on behalf of Defendant No.2 in detail. The learned Judge however at the end of the discussion states :- "However, I am not going into the details as to why Jogeshwari property was not mentioned in the said suit." Thus, the fact that the property was not mentioned in the prior litigation which was filed by some of the parties, was not the basis for the decision. 7. In this view of the matter, the Mumbai City Civil Court clearly has jurisdiction in view of : 5 : Section 17 of the C.P.C. which reads as under :- "17. Suits for immovable property 17. Suits for immovable property 17. Suits for immovable property situate within jurisdiction of situate within jurisdiction of situate within jurisdiction of different Courts.- different Courts.- different Courts.-Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property situate: Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court." 8. The Mumbai City Civil Court would have jurisdiction even assuming Section 20 of the C.P.C. applies to this case. Section 20 reads as under :- "20. Other suits to be instituted 20. Other suits to be instituted 20. Other suits to be instituted where defendants reside or cause of where defendants reside or cause of where defendants reside or cause of action arises.- action arises.- action arises.-Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally : 6 : works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. [Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place." 9. As stated above, Defendant Nos.3 to 10 supported the Plaintiff/Appellant. They thus not merely acquiesced in the institution of the suit but specifically agreed to the same. Defendant No.1 admittedly resides within the jurisdiction of the trial Court. The only question is regarding Defendant No.2. Defendant No.2 is stated in the plaint to be residing within the jurisdiction of the Court. In the affidavit filed by Defendant No.2 raising the preliminary issue, he does not deny the fact that he resides in Mumbai. 10. In the circumstances, the impugned order and judgment is set aside. In the facts and circumstances of the case, there shall be no order : 7 : as to costs. The trial Court shall decide the remaining issues. 11. It will be open to the Appellant to make an application before the trial Court to either continue the status-quo order granted earlier or for any other interim reliefs. 12. The parties shall appear before the trial Court in the first instance, on 30th June, 2008 and thereafter as may be directed by the trial Court.