IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.833 OF 2008. CHAMBER SUMMONS NO.833 OF 2008. CHAMBER SUMMONS NO.833 OF 2008. IN IN IN SUIT NO.3522 OF 2006. SUIT NO.3522 OF 2006. SUIT NO.3522 OF 2006. E-City Entertainment (I) Pvt. Ltd. ..Plaintiff versus Bakir H. Gandhi & Ors. ..Defendants Mr. D.H.Mehta i/b. A. Bharat & Co. for the Plaintiff Mr.S.U.Kamdar, Sr. Advocate with Ravindra Suryvanshi i/b. Naik Naik & Co. for the defendant Nos.1 to 3 Mr.V.R.Dhond with M/s. Namrata Jayakar i/b. M/s. Jayakar for the proposed Defendant No.4 in CHS 263 of 2008 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 1st December, 2008. DATED : 1st December, 2008. DATED : 1st December, 2008. P.C. 1. The plaintiffs instituted this suit for seeking declaration that agreement to lease in respect of suit property, dated 14.10.2005 is valid and subsisting. By prayer clause (b) the plaintiffs have sought a relief that defendants should specifically perform the agreement and that the defendants should do as many acts as may be necessary for performing the agreement. They have also prayed for injunction restraining the defendants from creating third party rights and/or -2- parting with the possession. Prayer for damages is also made. 2. This Court by Order dated 18.12.2006 granted leave under Clause 12 of the Letters Patent thereby permitting the plaintiffs to institute the suit. Writ of Summons is served upon the defendants. Interim proceedings have also been taken out by the plaintiffs on the basis of developments which took place in the matter. The present Chamber Summons is taken out by the defendant Nos.1 and 2 in June 2008 and have prayed that leave granted as per clause 12 of the Letters Patent be revoked. Parties have completed the pleadings. 3. I have heard learned Counsel on both the sides. Learned Senior Counsel Mr. Kamdar for the defendants took me through the plaint and in particular paragraph 21 of the plaint where one finds averments regarding jurisdiction of this Court. The plaintiffs have approached this Court with a positive case that the lease agreement purported to have been executed on 14.10.2005 was executed at Bombay and that it was also agreed by -3- the said agreement that the Bombay Court shall have jurisdiction. The suit property is situated at Rajkot. According to plaintiffs, on account of execution of the lease agreement at Bombay and the clause that the Bombay Court will have jurisdiction, this Court has jurisdiction and that is how the plaintiffs moved for leave to institute the suit under Clause 12 which was granted as above. 4. The defendants have raised the objection as regards the jurisdiction of this Court and have contended that as the suit property is situated at Rajkot, this Court shall have no jurisdiction to try and entertain the present suit. According to defendants, execution of the lease agreement executed at Bombay and the clause that the Bombay Court will have jurisdiction will not govern the question of jurisdiction. It is contended that in view of the provisions of Clause 12 of Letters Patent, this Court shall have no jurisdiction to try and entertain the present suit and as such leave should be revoked. 5. The learned Senior Counsel Mr. Kamdar -4- appearing on behalf of the defendants had relied upon the judgement in case of Harshad Chamanlal Modi vs. DLF Universal Ltd. & Another reported in (2005) 7 S.C.C. 791 and had submitted that the supreme Court has observed at paragraph 16 that the action against res or property should be brought in the forum where such res is situated. He had also drawn my attention to paragraph 15 and had submitted that the Court within whose jurisdiction the property is not situated has no power to deal with and decide the rights or interest in such property. He had also drawn my attention to provisions of Section 15 to 20 of CPC and had submitted that this Court shall have no jurisdiction. He had also drawn my attention to clause 12 of the Letters Patent and had submitted that as the suit property is at Rajkot and as the suit is in the case of land or other immovable property, the present suit could not have been filed in this Court and the leave ought not have been granted. 6. Learned Counsel Mr.Mehta pointed out that the suit came to be filed in the year 2006, the leave was granted by this Court on 18.12.2006 and -5- thereafter the defendants have participated in various interim proceedings. This Chamber Summons was filed in June 2008 and as such it is filed at a belated stage and the Court should not entertain the same. In support of this contention he had relied upon a judgment in the case of Chittaranjan Mukherjee vs. Barhoo Mahto 1950 Vol.87 Calcutta Law Journal 420. 7. Learned Counsel Mr. Mehta further submitted that the defendants, in their affidavit in support of the Chamber Summons have not stated as to how hardship would be caused to the defendants in the matter of attending the court at Bombay, and in the absence of specific details it will not be open for the defendants to raise the doctrine of forum convenience. In support of this proposition he relied upon the judgment in the case of Air India Limited vs. Caribjet Inc. 2004(4) Bom.C.R.53. 8. Learned Counsel Mr. Mehta had further submitted that the defendants have not disputed the fact as regards the execution of lease agreement at Bombay and that the defendants have also not -6- disputed the clause appearing in the lease agreement that the Bombay Court shall have jurisdiction. According to the learned Counsel Mr. Mehta, these two factors would go to show that this Court has jurisdiction and therefore grant of leave was proper. Learned Counsel Mr. Mehta submitted that since lease agreement was executed at Bombay, a part of cause of action has arisen in Bombay and therefore on proper interpretation of Clause 12 of Letters Patent, this Court shall have jurisdiction though the land is situated at Rajkot and/or the defendants are residing and carrying on business at Rajkot. He, therefore, submitted that the Chamber Summons be dismissed. 9. I have considered the rival submissions. It is well settled principle that the question as to jurisdiction of Court has to be gone into on the basis of facts stated in the plaint. It is required to be noted that the provisions of Clause 12 of Letters Patent are peculiar to Bombay High Court and therefore it is necessary that this Court has to ascertain as to whether the provisions of Civil Procedure Code would be applicable or whether the provisions of Clause 12 of the Letters Patent -7- would be applicable in the matter of jurisdiction of this Court. The Supreme Court in the case of Jindal Vijay Nagar Steel (JSW Steel Ltd vs. Jindal Praxair Oxygen Co. Ltd. (2006) 11 SCC 521 has observed that the provisions of Section 120 of CPC show that Section 16, 17 and 20 of the Code of CPC are inapplicable to Chartered High Courts exercising to Original Civil Jurisdiction under Letters Patent. Provisions of Section 120 are as follows: Section 120: Section 120: Section 120: "The following provision shall not apply to the High Court in the exercise of its original Civil Jurisdiction, namely, Sections 16, 17 and 20" The Supreme Court in the aforesaid case in paragraph 38 has specifically observed that the provisions of Clause 12 of Letters Patent are required to be considered to determine the jurisdiction of the Honourable Bombay High Court. The said paragraph reads as follows: "Thus for the purpose of determining the original Civil Jurisdiction of Bombay High Court, Section 20 CPC, 1908 has been specifically excluded and has no -8- application. Only provisions of Clause 12 of the Letters Patent are required to be considered to determine the jurisdiction of the Honourable Bombay High Court" On perusal of this observation as contained in paragraph 38 and the entire judgment it is clear that Clause 12 of the Letters Patent will have to be perused and applied to the facts of this case to decide whether the original side of the Bombay High Court will have jurisdiction to try and entertain the suit. It is in this context the judgement in the case of Harshad Chamanlal Modi would not be applicable to the facts of this case. 10. Few facts which can be termed as admitted facts are as follows: . The property in respect of which the suit is filed is situated at Rajkot. The defendants carry on business and reside at Rajkot i.e. beyond the territorial limits of Bombay High Court. 11. On proper construction of clause 12 of Letters Patent it is seen that if the suit is for land or other immovable property situated beyond the territorial limits of this High Court, this -9- Court will have no jurisdiction. In the present case the land described in lease deed is situated at Rajkot i.e. beyond the territorial limits of this Court. Considering the plaint as a whole and the nature of reliefs sought, this suit is undoubtedly a suit for land or immovable property. 12. It is required to be noted that the point raised by the plaintiffs that "part of cause of action" has arisen within the jurisdiction of this Court is of no assistance to the plaintiffs to say that this Court has jurisdiction as the provisions of clause 12 of Letters Patent confer jurisdiction on this Court on the ground that a part of the cause of action has arisen within the jurisdiction of this Court "in all other cases" i.e. in cases where the suit is not for land or other immovable property. 13. In view of the aforesaid discussion, I hold that this Court shall have no jurisdiction to try and entertain this suit and as such the leave granted under clause 12 on 18.12.2006 will have to be revoked. -10- 14. It was argued by learned Counsel Mr. Mehta that the present Chamber Summons has been taken out at the belated stage for revoking the leave. I have gone through the judgment in the case of Chittaranjan Mukherjee (supra). Since I have taken the view that this Court has no jurisdiction to try and entertain the suit, leave under clause 12 of the Letters Patent could not have been granted. Once it is observed that the leave could not have been granted, question of delay in taking out proceedings to revoke the leave becomes irrelevant. Hence the argument of learned Counsel for plaintiffs that this Chamber Summons is taken out at a belated state cannot be accepted. 15. The learned Counsel for the plaintiffs had relied upon the judgment in case of "Air India Limited" on the doctrine of forum convenience. It is required to be mentioned that the defendants have not raised the doctrine of forum convenience It is in this context, the judgment in the case of Air India Limited would not be applicable to the facts of this case. For the reasons mentioned aforesaid, I am inclined to observe that the Chamber Summons is required to be made absolute in -11- terms of prayer clause (a). 16. The leave granted on 18.12.2006 is required to be revoked as stated earlier. Consequently this Court shall have no jurisdiction to try and entertain this suit and the plaint will have to be returned to the plaintiffs for filing it to the proper Court. . For the reasons mentioned aforesaid, I pass the following Order: ORDER 1. Leave granted on 18.12.2006 is hereby revoked . Consequently, it is hereby observed that this Court has no jurisdiction to try and entertain the present suit. 2. It is hereby ordered that the plaint be returned to the plaintiffs for filing it to the proper Court. The date for return of the plaint is fixed as 16.1.2009. 3. Prothonotary & Senior Master to return the -12- plaint to the plaintiffs on 16.1.2009. 4. The Chamber Summons is disposed off in above terms with no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)