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

2. Brief facts of the case necessary to be noticed for deciding this appeal are:2.1 The appellant filed Civil Suit No.60-A of 2010 before the District Judge praying for declaring various transfer documents as null and void with regard to suit property mentioned in Para No. 1A and Para No.1B of the plaint. Plaintiff also prayed for declaration that suit properties mentioned in Para Nos.1A and 1B are Joint Family Property of plaintiff and defendant Nos. 1 to 3 and plaintiff is entitled to receive 1/3 rd part of the suit property. A Will executed by one Lt. Smt. Vimal Vaidya was also sought to be declared to be null and void. Certain other reliefs were claimed in the suit. The parties shall be referred to as described in the suit. The plaintiff in Para No.2 of the plaint has set the following genealogy of the parties:-2.2 In Para No.1 of the plaint, description of the property was mentioned to the following effect:-1.A) Plot No. SP 79, Sudama Nagar Indore (M.P.) size 30 ft. X 50 ft. area 1500 Sq. Ft. through membership no. 2905 of Shikshak Kalyar Samiti, Sudama Nagar, IndoreB) Bombay Suburban District S. No. 341, Pt. of Bandra Grant Flat No.C/1/3, Sahitya Sahavas Co-op. Housing Society, Second Floor, building known as Abhang Bandra (E), Mumbai- 400 051 situated on the plot bearing no. C.T.S. No. 629, (S. No. 341-A.B.S.D.) Madhusudan Kalekar Marg, Gandhinagar, Bandra (East) Mumbai – 512.3 The plaintiff sought relief with regard to two properties (hereinafter referred to as Indore property, situate at Indore, State of Madhya Pradesh and Mumbai property situate at Mumbai, State of Maharashtra). Plaintiffs case in the plaint was that Indore Property was purchased by plaintiffs father in the year 1968-1969. Plaintiffs father died on 15.08.1969. Thereafter, Indore property was joint family property of the plaintiff and defendant Nos. 1 to 3. Plaintiffs brother Babulal shifted to Pune. Babulal was allotted Mumbai property under a Government Scheme for extraordinary persons like writers and educationist. Babulal died in the year 1975. Thereafter, the Mumbai property, on the basis of succession certificate issued by Court of Civil Judge (Senior Division), Pune came in the name of widow of Babulal, Smt. Vimal Vaidya. Smt. Vimal Vaidya transferred the Mumbai flat by sale deed dated 15.10.2007 in favour of defendant Nos. 7 and 8. It was further pleaded in the plaint that Smt. Vimal Vaidya also dealt with Indore Property. The name of Smt. Vimal Vaidya was mutated in the year 1986 in the Indore property and thereafter she transferred the Indore property in favour of defendant Nos. 9 and 10. One set of pleadings was with regard to a Will executed in the year 2000 by Smt. Vimal Vaidya in favour of defendant Nos. 4 to 6. On aforesaid pleadings, following reliefs were prayed in Para No. 25 of the plaint:-A) The property mentioned in Para No.1 of the Plaint and its deed of transfer documents be declared null and void which is not binding on the part of the plaintiffB) The property mentioned in Para No.1B of Plaint and document related to its registered deed to transfer be declared null and void and which is not binding on the part of PlaintiffC) The property mentioned in Para No. 1A and 1B of the Plaint is joint family property of the Plaintiff and defendant No. 1 to 3 be declared joint family property and Plaintiffs right to receive 1/3 part of the suit propertyD) Court Commissioner be appointed to make division of suit property and 1/3 part possession be given to the PlaintiffE) During the hearing of the suit injunction order be passed in respect of the property not to create third party interest by the DefendantsF) Plaintiffs suit be declared decreed with the expensesG) To grant any other relief which this Honble Court may be fit in the interest of justiceH) The forged will executed by Late Vimal Vaidya under influence of defendant No. 4 and his associates relatives Defendant No. 5 and 6 and other relatives of Kher family. Because, Late Babulal Vaidya was a member of undivided Hindu family. Therefore, Late. Vimal Vaidya was not authorized to execute that alleged will as per the Law. Therefore, the registered alleged will be declared null and void and be declared that it is not binding on the part of the Plaintiff2.4 The defendant Nos. 7 and 8 appeared in suit and filed an application with the heading application for striking out pleadings and dismissing suit against defendants No.7 and 8 for want of it territorial jurisdiction and mis-joinder of parties and causes of action. The defendant Nos. 7 and 8 pleaded that for property being situated at Bandra East, Mumbai, the Court at Indore has no territorial jurisdiction. It was further pleaded by the defendant that suit suffers fatally from mis-joinder of parties as well as causes of action. The defendant Nos. 7 and 8 pleaded that there is no nexus at all between the two properties – one situate at Indore and other at Mumbai. Details of different causes of action and nature of the properties, details of purchasers for both different sale transactions have been explained in detail in Para No. 6 of the application. It was further pleaded that Mumbai property does not form asset of any Hindu Undivided Family. Mumbai property was acquired by Babulal in his own name and after his death on the basis of succession, it has come to his sole heir Smt. Vimal Vaidya in the year 1975. It was pleaded that no part of the cause of action for the Mumbai property took place in Indore. In the application, following reliefs has been prayed for by the defendant Nos. 7 and 8:-(a) All the pleadings and the relief clauses relating to the property situate at Mumbai may kindly be ordered to be struck off from the plaint, in exercise of powers conferred on this Honble Court under Order 6 Rule 16 of the Civil Procedure Code, and as a consequence the suit against the defendants No.7 and 8 may kindly be dismissed with costs for the answering defendants; while the Suit relating to the Indore property may be continued if otherwise round maintainable under the law; OR in the alternative, An order may kindly be passed declining to entertain the part of the suit relating to the property in Mumbai with costs for the answering defendants; and(b) Such other order may kindly be passed as may be deemed appropriate in the circumstances of the case2.5 The trial court after hearing the parties on the application dated 19.03.2011 filed by the defendant Nos. 8 and 9 passed an order dated 17.08.2011 allowed the application. An order was passed deleting the property mentioned In Para No. 1B of the plaint and the relief sought with regard to the said property. The trial court held that separate cause of actions cannot be combined in a single suit2.6 Aggrieved by the order of the trial court, a writ petition was filed in the High Court, which too has been dismissed by the High Court vide its order dated 13.11.2013 affirming the order of the trial court. High Court referring to Section 17 of the Civil Procedure Code, 1908 held that for property situated at Mumbai, the trial court committed no error in allowing the application filed by defendant Nos. 7 and 8. The plaintiff- appellant aggrieved by the order of the High court has come up in this appeal29. Now, we revert to the facts of the present case and pleadings on record. The suit filed by the appellant contained three different sets of defendants with different causes of action for each set of defendants. Defendant Nos. four to six are defendants in whose favour Will dated 15.02.2000 was executed by late Smt. Vimal Vaidya. In the plaint, relief as claimed in paragraph 25(H)is the will executed by late Smt. Vimal Vaidya was sought to be declared as null and void. The second cause of action in the suit pertains to sale deed executed by late Smt. Vimal Vaidya dated 15.10.2007 executed in favour of defendant Nos.7 and 8 with regard to Bombay property. The third set of cause of action relates to transfer documents relating to Indore property which was in favour of defendant Nos.9 and 10. The transfer documents dated 21.10.1986, 21.11.1988 and 20.08.1993 are relating to Indore property. The plaint encompasses different causes of action with different set of defendants. The cause of action relating to Indore property and Bombay property were entirely different with different set of defendants. The suit filed by the plaintiff for Indore property as well as Bombay property was based on different causes of action and could not have been clubbed together. The suit as framed with regard to Bombay property was clearly not maintainable in the Indore Courts. The trial court did not commit any error in striking out the pleadings and relief pertaining to Bombay property by its order dated 17.08.2011.

Reasoning:
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.