Case: SHIVNARAYAN (D) BY LRS Vs. MANIKLAL (D) THR. LRS

jurisdiction of more than two courts, the suit is maintainable only when suit is filed on one cause of action. 22. Justice Verma of Allahabad High Court in his concurring opinion in Karan Singh v. Kunwar Sen (supra) while considering Section 17 of C.P.C. has explained his views by giving illustration. Following was observed by Justice Verma: I agree, Suppose a scattered Hindu dies possessed of immovable property scattered all over India at Karachi, Peshwar, Lahore, Allahabad, Patna, Dacca, Shillong, Calcutta, Madras and Bombay and is succeeded by his widow who, in the course of 40 or 50 years, transfers on different dates portions of the property situated at each of the places mentioned above, to different persons each of whom resides at the place where the property transferred to him is situated, and the transfers are wholly unconnected with, and independent of one another. Upon the widows death the reversioner wants to challenge these various transfers. Learned counsel for the plaintiffs has argued that in such a case the reversioner is entitled to bring one suit challenging all the transfers at any one of the places mentioned above, impleading all the transferees, I find it very difficult to hold that such a result is contemplated by the provisions of the Code of Civil Procedure upon which reliance has been placed and which are mentioned in the judgment of my learned brother. I do not consider it necessary to pursue the matter any further. It is clear to my mind that, if the plaintiffs; argument mentioned above is accepted, startling results will follow. 23. Now, we come to submission of learned counsel for the appellant based on Section 39 sub-section (1) (c)of C.P.C. It is submitted that Section 39(1)(c) of C.P.C. is also a pointer to what is intended in Section 17. The scheme as delineated by Section 39 indicates that when a decree is passed by a Court with regard to sale or delivery of immovable property situated outside the local limits of the jurisdiction of that Court it may transfer the decree for execution to another Court. The provision clearly indicates that a decree of Court may include immovable property situate in local limits of that Court as well as property situated outside the local limits of the jurisdiction of the Court passing the decree. Section 39(1)(C) re-enforces our conclusion that as per Section 17 suit may be filed with regard to immovable property situated outside the local limit of the jurisdiction of the Court. We may, however, add that passing a decree by a Court with regard to immovable property situate outside the local jurisdiction of the Court passing the decree may not only confine to Section 17 but there may be other circumstances where such decree is passed. Section 20 of C.P.C. may be one of the circumstances where decree can be passed against the defendant whose property may situate in local jurisdiction of local limits of more than one Court. 24. We may further notice that Section 17 uses the words the suit may be instituted in any Court. The use of word in Section 17 makes it permissive leaving discretion in some cases not to file one suit with regard to immovable property situated in local jurisdiction of more than one court. One of the exceptions to the rule is cases of partial partition where parties agree to keep some property joint and get partition of some of the properties. 25. The partial partition of property is well accepted principle with regard to a joint family. In Maynes Hindu Law & Usage, 16 th Edition in paragraph 485 following has been stated: 485. Partition partial or total.- Partition may be either total or partial. A partition may be partial either as regards the persons making it or the property divided. Partial as to properties.- It is open to the members of a joint family to severe in interest in respect to a part of the joint estate while retaining their status of a joint family and holding the rest as the properties of an undivided family. Until some positive action is taken to have partition of joint family property, it would remain joint family property. 26. Mulla on Hindu Law, 22 nd Edition also refers to partial partition both in respect of the property and or in respect of the persons making it. In paragraph 327 following has been stated: 327. Partial partition.-(1) A partition between coparceners may be partial either in respect of the property or in respect of the persons making it. After a partition is affected, if some of the properties are treated as common properties, it cannot be held that such properties continued to be joint properties, since there was a division of title, but such properties were not actually divided. (2) Partial as to property.- It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family. The issues arising in the present case being not related to subject of partial partition the issue need not to be dealt with any further. 27. Learned counsel for the appellant has also submitted that permitting filing of a separate suit with regard to property situate in different jurisdiction shall give rise to conflicting decision and decision in one suit may also be res judicata in another suit. We in the present case being not directly concerned with a situation where there are more than one suit or a case having conflicting opinion we need not dwell the issue any further. 28. Sections 16 and 17 of the C.P.C. are part of the one statutory scheme. Section 16 contains general principle that suits are to be instituted where subject-matter is situate whereas Section 17 engrafts an exception to the general rule as occurring in Section 16.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. Applying Section 13 of General Clauses Act, the Bombay High Court explaining the word property used in Section 17 held that it includes properties. We are also of the same view that the word property used in Section 17 can be more than one property or properties11. The word property under Section 17 of the Civil Procedure code may also be properties, hence, in a schedule of plaint, more than one property can be included. Section 17 can be applied in event there are several properties, one or more of which may be located in different jurisdiction of courts. The word portion of the property occurring in Section 17 has to be understood in context of more than one property also, meaning thereby one property out of a lot of several properties can be treated as portion of the property as occurring in Section 17. Thus, interpretation of word portion of the property cannot only be understood in a limited and restrictive sense of being portion of one property situated in jurisdiction of two courts17. The views of the different High Courts as well as of the Privy Council, as noticed above, clearly indicate that Section 17 has been held to be applicable when there are more than one property situated in different districts18. The point to be noticed is that the permissibility of instituting suit in one Court, where properties, which are subject matter of the suit are situated in jurisdiction of different courts have been permitted with one rider, i.e., cause of action for filing the suit regarding property situated in different jurisdiction is one and the same. In a suit when the cause of action for filing the suit is different, the Courts have not upheld the jurisdiction of one Court to entertain suits pertaining to property situated in different courts. In this context, we need to refer to some judgments of High Courts as well as of the Privy Council, which has considered the issue.21. Thus, for a suit filed in a Court pertaining to properties situated in jurisdiction of more than two courts, the suit is maintainable only when suit is filed on one cause of action23. Now, we come to submission of learned counsel for the appellant based on Section 39 sub-section (1) (c)of C.P.C. It is submitted that Section 39(1)(c) of C.P.C. is also a pointer to what is intended in Section 17. The scheme as delineated by Section 39 indicates that when a decree is passed by a Court with regard to sale or delivery of immovable property situated outside the local limits of the jurisdiction of that Court it may transfer the decree for execution to another Court. The provision clearly indicates that a decree of Court may include immovable property situate in local limits of that Court as well as property situated outside the local limits of the jurisdiction of the Court passing the decree. Section 39(1)(C) re-enforces our conclusion that as per Section 17 suit may be filed with regard to immovable property situated outside the local limit of the jurisdiction of the Court. We may, however, add that passing a decree by a Court with regard to immovable property situate outside the local jurisdiction of the Court passing the decree may not only confine to Section 17 but there may be other circumstances where such decree is passed. Section 20 of C.P.C. may be one of the circumstances where decree can be passed against the defendant whose property may situate in local jurisdiction of local limits of more than one Court24. We may further notice that Section 17 uses the words the suit may be instituted in any Court. The use of word in Section 17 makes it permissive leaving discretion in some cases not to file one suit with regard to immovable property situated in local jurisdiction of more than one court. One of the exceptions to the rule is cases of partial partition where parties agree to keep some property joint and get partition of some of the propertiesThe issues arising in the present case being not related to subject of partial partition the issue need not to be dealt with any furtherLearned counsel for the appellant has also submitted that permitting filing of a separate suit with regard to property situate in different jurisdiction shall give rise to conflicting decision and decision in one suit may also be res judicata in anotherWe in the present case being not directly concerned with a situation where there are more than one suit or a case having conflicting opinion we need not dwell the issue any further30. Learned counsel for the appellant has also referred to and relied on order II Rule 2 and Order II Rule 3 C.P.C. Learned counsel submits that order II Rule 2 sub-clause (1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.The cause of action according to Order II Rule 2 sub-clause (1) is one cause of action. What is required by Order II Rule 2 sub-clause (1) is that every suit shall include the whole of the claim on the basis of a cause of action. Order II Rule 2 cannot be read in a manner as to permit clubbing of different causes of action in a suit. Relying on Order II Rule 3 learned counsel for the appellant submits that joinder of causes of action is permissible. A perusal of sub-clause (1) of Order II Rule 3 provides that plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly. What is permissible is to unite in the same suit several causes of action against the same defendant, or the same defendants jointly. In the present case suit is not against the same defendant or the same defendants jointly. As noticed above there are different set of defendants who have different causes of actions32. It is relevant to notice in the application filed by defendant Nos. 7 and 8, the heading of the application itself referred to mis-joinder of parties and causes of action. In Para (1) of the application, it was categorically mentioned that there was mis-joinder of parties and causes of action. The trial court in its order dated 17.08.2011 has also clearly held that plaintiff has clubbed different causes of action which is to be deleted from the present suit. The trial court further held that the plaintiff is not justified in including different properties and separate cause of actions combining in single suit.