CRA/43/2007 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 43 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = GUJARAT INDUSTRIAL DEVELOPMENT CORP. - Petitioner Versus J.B.INTERNATIONAL & EXPORT & 1 – Respondents ========================================= = Appearance : MR GIRISH D BHATT for Petitioner MR TV SHAH for Respondents ========================================= = CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 18/02/2008 ORAL JUDGMENT 1. Heard learned counsel for the parties. CRA/43/2007 2/14 JUDGMENT 2. The petitioner, original defendant No. 1 in Regular Civil Suit No. 4 of 2005 filed in the Court of learned Civil Judge (SD) Rajkot against the plaintiff as well as defendant No. 2 has approached this Court under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC” for short) challenging the order passed by the trial Court below Application Exh.9 on 31.8.2006 rejecting the same on the ground that the said Court did not have jurisdiction to try the suit under Section 20 of the CPC. 3. This Court (Coram: Ravi R. Tripathi, J.) vide order dated 30.3.2007 issued Rule, which was made returnable on 30.4.2007 and granted ad-interim relief staying the further proceedings of Regular Civil suit No. 4 of 2005 pending in the Court of the learned 6th Additional Senior Civil Judge, Rajkot. This matter was taken up for final disposal. 4. Facts in brief deserve to be set out as under leading to filing this Civil Revision Application. 5. The respondent No. 1, original plaintiff has filed Regular Civil Suit No. 4 of 2005 before the Court of learned Civil Judge (SD) Rajkot for declaration and permanent injunction against present petitioner and one defendant No. 2 – Shri Dineshbhai Vallabhbhai Khant, as the present petitioner – defendant No. 1 had allotted plot No. 2404 to present plaintiff and in that regard, part payment was made by plaintiff. Subsequently, allotment had been cancelled and the plot in question was apprehended to be allotted to some other applicant and in fact it came to be CRA/43/2007 3/14 JUDGMENT alloted to defendant No. 2 and therefore, was he came to be joined as a party defendant in the suit. The present petitioner – defendant No. 1 preferred Application Exh. 9 praying that Court did not have jurisdiction to try the suit in view of the provisions of Section 16(d) of the CPC as the suit was essentially for and in respect of the immovable property being plot No. 2404 and as the said plot is located at Lodhika Industrial Estate, GIDC, the concerned Court having territorial jurisdiction in the area should have been approached for appropriate relief and not the Court at Rajkot. The trial Court rejected the said prayer while dismissing application Exh. 9 on 31.8.2006. Being aggrieved and dissatisfied with the said order, petitioner has preferred the present Revision Application under Section 115 of the CPC. 6. Shri Bhatt, learned counsel appearing for the petitioner has submitted that Lodhika Industrial Estate GIDC would certainly not fall within the territorial jurisdiction of the concerned Court, wherein, the respondent No. 1 has preferred the suit and therefore, in view of the express provisions of Section 16(d) of the CPC, the trial Court at Rajkot, will have no jurisdiction as the suit is pertaining to immovable property being plot No. 2404 situated at Lodhika Industrial Estate GIDC. The defendant No. 1 i.e. present petitioner therefore was constrained to prefer an application Exh. 9 bringing this fact to the notice of the Court and the trial Court has erroneously rejected the same. Shri Bhatt has invited this Court's attention to the provisions of Section 16(d) of the CPC as well as Section 20 of the CPC and submitted that once the suit is in CRA/43/2007 4/14 JUDGMENT respect of immovable property or interest therein, then the suit is essentially required to be filed in the Court within whose territorial jurisdiction the immovable property is situated. Shri Bhatt has relied upon the decision of Allahabad High Court in case of OM PRAKASH AND ANOTHER VS. ANAR SINGH AND OTHERS reported in AIR 1973 ALLAHABAD 555 (V.60 C.194), wherein also, the Allahabad High Court was pleased to observe that a suit for injunction in respect of an immovable property can be no exception for the applicability of Sec. 16(d) and has to be instituted in the Court in whose territorial jurisdiction the property is situated. The Court has also observed that the determination of the right or interest in the immovable property cannot be considered as merely an incidental matter but is an essential matter for the grant of relief of injunction. Shri Bhatt has also relied upon the decision of the Apex Court in case of HARSHAD CHIMAN LAL MODI VS. D.L.F. UNIVERSAL LTD. AND ANOTHER, reported in AIR 2005 SC 4446 in support of his submission that territorial jurisdiction of the Court cannot be ignored on a specious plea of prayer in the suit projected to be not pertaining to adjudication of right or interest in the suit property. The suit with regard to immovable property is to be filed within the territorial jurisdiction on the Court having jurisdiction of that area. Shri Bhatt has submitted that plaint as well as prayer clearly indicate that the suit can be said to be a suit falling under the provisions of Section 16(d) of the CPC and therefore, the Court of Civil Judge at Rajkot admittedly did not have jurisdiction as the immovable property was situated outside its territorial CRA/43/2007 5/14 JUDGMENT jurisdiction. Shri Bhatt has also relied upon the decision of the Madras High Court in case of TAMIL NADU CEMENTS LIMITED VS. BALAKRISHNAN AND ANOTHER reported in 2001 AIHC p.3698 and the decision in case of SHREE SHANTHI HOMES PVT. LTD. AND OTHERS, BANGLORE VS. CREF FINANCE LTD., reported in AIR 2002 Karnataka 252 in support of his submission that the present revision application is maintainable and is required to be allowed. 7. Shri Shah, learned counsel appearing for the respondent original plaintiff has submitted that Revision Application is not maintainable in view of the existing provision of Section 115 of the CPC. He submitted that even if it is assumed for the sake of arguments that the application of petitioner was accepted and accordingly, the plaint had been returned, then also, the same would not have amounted to final disposal of the suit as it is envisaged under Section 115 of the CPC. Shri Shah submitted that in view of proviso to Section 115 of CPC and in view of the facts and circumstances of the present case, the present Civil Revision Application is not maintainable as even if the prayer in Exh. 9 Application made by defendant No. 1 had been accepted by the Court then also, it would not have ended the suit finally as per the proviso to Section 115 of the CPC. Shri Shah has submitted that as against order below Application Exh. 9, no appeal is maintainable, that in itself would not be a ground for maintaining the revision especially in view of proviso of Section 115. The remedy open to the petitioner is of preferring writ petition under Article 227 of the Constitution of India. Shri Shah CRA/43/2007 6/14 JUDGMENT further submitted that Court now cannot convert the Revision Application into writ petition and therefore, this Court may dispose of by rejecting the Civil Revision Application and if deemed fit, may reserve the liberty to the petitioner to prefer writ petition challenging the order impugned in this proceedings. 8. In the alternatively without prejudice to the aforesaid submission, Shri Shah submitted that the provisions of Section 16(d) of the CPC would not be attracted in view of the fact that plaintiff in the suit has not even prayed for possession of the suit property. Shri Shah has invited this Court's attention to the prayer clause as well as the averments made in the plaint by the plaintiff and submitted that suit was essentially for challenging the invalid, illegal action of defendant No. 1 in cancelling the allotment of the plot in question and giving it to someone else i.e defendant No. 2. Therefore, said prayer is essentially for declaration only and even if it is in respect of immovable property, but when the plaintiff is not seeking any adjudication upon his right or interest into the immovable property then, it would not be governed by the provisions of Section 16(d) of the CPC and provisions of Section 20 of the CPC would be attracted and therefore, as the defendant No. 1 have their office at Rajkot, the learned trial Court has rightly observed that the suit was maintainable and this Court may not interfere with the order impugned in the present proceedings. Shri Shah further submitted that plain reading of Section 16(d) of the CPC indicates that the suit CRA/43/2007 7/14 JUDGMENT for adjudication of right or interest into the immovable property has to be filed within the territorial jurisdiction of the Court concerned only. The right and interest therefore are essentially right and interest into the immovable property and its adjudication by the concerned Court. All suits merely they pertain to or in respect of incidental matter of immovable property, cannot necessarily be governed by Section 16(d) of the CPC. Shri Shah submitted that averments made in the plaint as well as the prayers in the plaint indicate that the plaintiff has not filed suit for seeking any adjudication of his right or interest in the plot in question. The plaintiff has merely sought a declaration with regard to the defendant No. 1's illegal action of cancelling allotment of the said plot and granting the same to defendant No. 2, the relief for permanent injunction could be said to be a incidental relief for avoiding multiplicity of proceedings and therefore, as the suit cannot be said to be one for adjudicating right or interest of the plaintiff into the plot in question and as it was merely pertaining to declaration in respect of the illegal action of defendant No. 1, the provisions of Section 20 of the CPC would governed and accordingly, the suit was rightly filed at Rajkot as the defendant No. 1 is carrying out its day to day business from their office at Rajkot. In support of his submission, Shri Shah has relied on the following decisions: (i) In case of Sir Syed Memorial Educational Society, Parraypora, Baghat Vs. Mohmmad Usman Wani and others, reported in AIR 2000 Jammu and Kashmir p.67 (ii)In case of Sm. Shyama Sundari Dasi 'Devi' Vs. Ramapati Chattopadhya and another, reported in AIR CRA/43/2007 8/14 JUDGMENT 1973 Calcutta p. 319. (iii)In case of Mannibai W/o. Kedarmal and others Vs. Messrs. S.C. Cambata and Co. Ltd. And others reported in AIR (35) 1948 Nagpur 286. (iv)In case of Har Dayal Singh Vs. Ram Ujagar Dube, reported in AIR 1955 Allahabad 416, (Vol.42, C.N. 124). 9. Shri Shah in support of his submission with regard to maintainability of this Civil Revision Application has relied upon the decision of the Apex Court in case of SHIV SHAKTI CO.OP. HOUSING SOCIETY, NAGPUR VS. M/S. SWARAJ DEVELOPERS AND OHERS, reported in AIR 2003 SC 2434 and submitted that after the amendment in CPC, the proviso to Section 115 of the CPC is in clear bar in exercising jurisdiction when acceptance of the aggrieved party's prayer by the Court would not have any effect of finally disposing of the entire suit as envisaged in proviso of Section 115 of the CPC. 10.This Court has heard the learned counsel for the parties at length and perused the papers. 11. The moot question to be decided in the present Civil Revision Application is as to whether the averments and prayers made in the plaint would attract the provisions of Section 16(d) requiring the suit to be filed only within the Court having territorial jurisdiction over the plot No. 2404, a suit property in the present matter of whether the suit was maintainable before the learned Senior Civil Judge at Rajkot in light of the provision of Section 20 of the CPC. CRA/43/2007 9/14 JUDGMENT The provision of Section 16 deserves to be set out as under: “Section 16 of the CPC : Suits to be instituted where 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, (f) for the recovery of movable 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. Explanation- In this section “property” means property situate in [India]” CRA/43/2007 10/14 JUDGMENT 12. The plain reading of Section 16 would indicate that the present suit would fall under the provisions of Section 16(d) of the CPC. The wording “right to” and wording “interest in” both figured in Section 16(d). Therefore, the real purport of these wordings namely “right to” and “interest in” deserve to be ascertained for adjudicating the present controversy in question. If Shri Shah's submission is to be accepted that the wording “interest in” has to be equated with wording “right to” then, the employment of wording “interest in” would be otiose as the intention of the Legislature would have been clear by merely using “right” into immovable property. Therefore, the wording “interest in” cannot be equated with the wording “right into the property”. The wording “interest in” operates in wider area and could be “interest in property” in any sense and not only that of “right into the property”. The Legislature has employed both the wordings “right to” as well as “interest in” in immovable property indicating that interest in property has a definite connotation different than the right into the property and therefore, the rigid equivalence as canvassed by Shri Shah for respondent No. 1 would rendered the word “interest in” otiose. An attempt to read it down by making it more akin to the wording “right to” would amount to amending the provision itself. As against this, the simple reading of Section 20 would clearly show that the subject matter which are not governed by Section 16, would only be governed by Section 20 and therefore, if in case the subject matter is covered by any of the clauses of Section CRA/43/2007 11/14 JUDGMENT 16, then, Section 20 of CPC would not be applicable. 13.The plaint and the prayer made by the plaintiff in the suit deserve to be viewed in its proper perspective in light of the provisions of Section 16(d) of the CPC. The plaintiff has entitled the suit as a suit for declaration and permanent injunction. The plaintiff has also made a substantive prayer being prayer (15)(2) for permanent injecting and/or restraining the present petitioner from transferring the suit plot No. 2404 to anyone else. Now entitling of the suit and making of substantive prayer for permanent injunction against original defendant No. 1 – present petitioner in respect of plot No. 2404 in the Lodhika Industrial Estate GIDC would unequivocally go to show that plaintiff did have interest in the suit property i.e. immovables property and this interest is nothing but an interest which is referred to by the legislature in Section 16(d) of the CPC. This interest needs to be adjudicated before deciding and examining prayer for declaration. 14. The citation relied upon by Shri Shah would be of no avail to the respondent as the facts of those cases are entirely different than the one on hand. The averments and prayers made in the plaint are very important factor for deciding as to whether the provisions of Section 16(d) would be attracted or not. The decision in case of Sir Syed Memorial Educational Society, Parraypora, Baghat (Supra) would be of no help to the present respondent as the suit in the instant case cannot be said to be merely for declaration as the prayers made in the present suit is that CRA/43/2007 12/14 JUDGMENT of permanent injunction also and it is not confined to compensation and even the prayer for compensation is not made in the plaint. The decision of Sm. Shyama Sundari Dasi “Devi” (Supra) would be of no help to the present respondent as in the said case, the question was with regard to certain documents and their genuineness, whereas, in the instant case, as it is stated hereinabove, the plaintiff has sought relief of declaration as well as permanent injunction qua immovable property being Plot No. 2404. The decision of Mannibai W/o. Kedarmal and others (supra) would be of no help to the present respondent as it could be seen from the facts, the facts are entirely different than of the present case. The reliance placed in case of Har Dayal Singh (supra) would be of no help to the present respondent as in the present case, the question is not that of rent but the interest as envisaged under Section 16(d) of the CPC. The Apex Court ruling in case of Shiv Shakti Co.op. Housing Society, Nagpur (supra) is also of no avail to the respondent as no absolute preposition of law is said to have been laid down in the aforesaid decision that as sought to be canvassed by counsel for the respondent that when the returning of the plaint is not amounting to finally disposing the suit, the revisional jurisdiction under Section 115 cannot be invoked. On the contrary, the Apex Court has in the said judgment observed that revisional jurisdiction is essential so far as supervisory power over the subordinate Court and when it is brought to the notice of the High Court, the power under Section 115 can be exercised. In the instant case, as it is stated hereinabove, the suit in question essentially indicate that the provisions of CRA/43/2007 13/14 JUDGMENT Section 16(d) of the CPC was attracted and therefore, the concerned trial Court ought not to have rejected the application Exh. 9 made by defendant No. 1. 15. The prayer made in Exh. 9 if accepted, would have certainly ended the suit in question. The handicaps which are attached to the defendant during pendency of the suit would certainly come to an end till the suit after return of the plaint is not instituted in the appropriate court having territorial jurisdiction and therefore, the Court is unable to agree with the submission of Shri Shah that if the prayers made in Exh.9 was accepted by the Court, then also, the suit would not have finally ended. In fact, the order passed below Exh. 9 impugned in this proceedings is unsustainable and deserve to be quashed and set aside. The trial Court ought to have appreciated the fact that plaintiff has in terms indicated that he has interest in the suit property i.e immovable property bearing plot No. 2404 and it needs to be adjudicated. That suit property was admittedly not within the territorial jurisdiction of Senior Civil Judge, Rajkot. The suit cannot be said to be a suit merely for declaration and capable of being decided without adjudicating “interest of” the plaintiff in suit property and as there is a substantial prayer for permanent injunction is made and for that matter, it can well be said that the suit is for permanent injunction also and it would be governed by provisions of Section 16(d) of the CPC. The proviso to Section 16 would be also of no avail as the suit cannot be said to be a suit for compensation, which could be obtained from personal obedience of the defendant. It deserve to be noted that CRA/43/2007 14/14 JUDGMENT suit, which was not being filed within the territorial jurisdiction of the Court, therefore, the order impugned is on the fact of it erroneous and therefore, deserves to be quashed and set aside. It also may be noted that if the prayer made in Exh. 9 application was accepted, then, handicaps attached to the defendant also would have come to an end and therefore, on this count also, it can be said that this Court may pass appropriate order under Section 115 of the CPC. 16.In the result, the impugned order dated 31.8.2006 passed by the learned 6th Additional Senior Civil Judge, Rajkot below petitioner-defendant No.1's application Exh. 9 in Regular Civil Suit No. 4 of 205 is hereby quashed and set aside. The Civil Revision Application is allowed. Rule is made absolute accordingly. No costs. (S.R.BRAHMBHATT, J.) pallav