JUDGMENT.- The ninth issue in the suit is “has this Court no jurisdiction to try the suit?” This has been argued as a preliminary issue. The facts necessary for the disposal of this issue may be shortly stated. The plaintiff Raghavan &38; Co., by its sole proprietor S. K. Veeraraghavan obtained a mining lease from the Government of Mysore valid till the year 1977. One of the mines is the Lakkihalli mine concerned in the suit. The plaintiff sought the assistance of the defendants Rambilas Nandlal (Partnership) for working, the mines. An arrangement was entered into on 3rd August, 1955. The defendants were to work the mines and inter alia sell the product to Hindu Mercantile Corporation (P.), Ltd. But the defendants did not work the mine properly. They tapped the mines indiscriminately with a sole eye on quick returns. The plaintiff eventually obtained possession of the mines in November, 1959 from the defendants. The plaintiff claims in the suit a sum of Rs. 34,750 as the sum required to set the mines light for proper and systematic exploitation. The suit was instituted in the City Civil Court and it has been transferred to this Court on administrative grounds. The mines are situate in the State of Mysore but the suit was instituted in the City Civil Court, Madras, on the ground that the contract was entered into at Madras and therefore the cause of action arose there (at least in part). The City Civil Court would have jurisdiction if the case can be brought under Section 20 (c), Civil Procedure Code, which says: “Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action wholly or in part arises”. But the contention of Sri Sivaswami, learned Counsel for the defendants, is that because of section 16(e)of the Code which is one of the limitations to which section 20 is subject, the City Civil Court would have no jurisdiction and that consequently this Court also would have no jurisdiction. But the contention of Sri Sivaswami, learned Counsel for the defendants, is that because of section 16(e)of the Code which is one of the limitations to which section 20 is subject, the City Civil Court would have no jurisdiction and that consequently this Court also would have no jurisdiction. It is here necessary to quote section 16 of the Code in full: “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 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 connection "property" means property situate in India”. On the allegations in the plaint there can be no doubt that the suit is one for compensation for wrong to immovable property, namely, the mines, and section 16(e) would certainly apply. But Sri Ramaprasada Rao, learned Counsel for the plaintiff, relies on the Proviso to section 16 as enabling the plaintiff to institute the suit in the City Civil Court, Madras, because the defendants carry on business at Madras among other places. Though at the time of the institutions of the suit, namely, 29th October, 1962, the defendants were not holding the mines, Sri Ramaprasada Rao contends that the plaintiff can invoke the Proviso because the property was previously held at the time of the causing of the damage by the defendants. Though at the time of the institutions of the suit, namely, 29th October, 1962, the defendants were not holding the mines, Sri Ramaprasada Rao contends that the plaintiff can invoke the Proviso because the property was previously held at the time of the causing of the damage by the defendants. He further contends that the relief sought is only a monetary claim of damages and that it can be entirely obtained through the personal obedience of the defendants by arresting any of the partners or by seizure and sale of any of their properties in Madras. Sri Sivaswami, learned Counsel for the defendants, however contends that the plaintiff cannot invoke the Proviso because firstly the property was not held by or on behalf of the defendants when the suit was instituted, that on the allegations in the plaint it was the plaintiff who was in possession on the date of the suit and that consequently the criterion “immovable property held by or on behalf of the defendant” in the Proviso has not been satisfied. In other words, according to Sri Sivaswami, the criterion applies to the state of things at the time of the institution of the suit. Sri Sivaswami also contends that the other criterion in the Proviso has not been satisfied. According to him, the relief sought cannot be entirely obtained through the personal obedience of the defendants. Both sides have cited some decisions but before examining them I think it necessary to examine the provisions of the Code independently. Under the heading 'Place of Suing' sections 15 to 25 have been enacted. Section 15 says that every suit shall be instituted in the Court of the lowest grade competent to try it and is not relevant for our purpose. Section 16 has already been quoted in full. It proceeds on the principle that a suit concerning immovable property (leaving out moveable property with which we are not concerned) has normally to be instituted in the Court within the local limits of whose jurisdiction the property is situate. The Proviso is an exception to that permitting the institution of the suit elsewhere. It proceeds on the principle that a suit concerning immovable property (leaving out moveable property with which we are not concerned) has normally to be instituted in the Court within the local limits of whose jurisdiction the property is situate. The Proviso is an exception to that permitting the institution of the suit elsewhere. Section 17 says: 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 is situate: Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court. “ In other words this provision is supplementary to section 16. Section 18 is also a provision supplementary to section 16 and may be omitted for our purpose. Section 19 deals with compensation for wrong done to a person or to movable property and can also be omitted. Then comes Section 20 and it may be necessary to quote the relevant portion of it: 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 the commencement of the suit, actually and voluntarily resides, or carries on business, or personally wroks for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement the suit, actually and voluntarily resides, or carries on business, or personally 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 I : Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. Explanation I : Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. Explanation II: 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”. It is unnecessary to refer to the other provisions in the Code. The principle underlying section 20 is of course that effective relief can be obtained by instituting the suit where the defendant resides or carries on business because in order to secure compliance with the decree he can be arrested or his property can be seized and sold. But this is made subject to the limitations preceding, one of which is section 16 relating to immovable property, because effective relief cannot always be obtained in respect of immovable property merely by personal obedience of the defendant. For instance where the suit is for recovery of immovable property situate in Mysore State and if the defendant allows the suit to proceed ex parte, effective relief can be given to the plaintiff only by an officer of the Court in the Mysore State going to the spot and giving possession to the plaintiff if he obtains a decree. So too in the case of partition of immovable property effective relief can be given only by going to the spot and effecting a partition. It is therefore easy to see the wisdom of the principles underlying section 16. But the Legislature has recognised that in some cases relating to immovable property, effective relief may be secured even without going to the place where the immovable property is situate and broadly speaking those cases are codified in the Proviso to section 16, and the Legislature has enacted that in such cases the plaintiff will have the option of bringing the suit either in the Court within the local limits of whose jurisdiction the immovable 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. In other words, the dominant principle underlying the enactment of the Proviso is that the relief sought can be entirely obtained through the personal obedience of the defendant. From this point of view the other criterion of ‘immovable property held by or on behalf of the defendant ‘may not be so important in some cases, for instance, in a case like the present. Here the plaintiff himself is in possession and he will be satisfied if the defendants pay him the sum of Rs. 34,750 claimed by him. On such payment the plaintiff will himself set the mines right. The relief which is claimed can certainly be obtained though the personal obedience of the defendants by arresting any of the partners or by seizing their properties situate in Madras where they carry on business. Hence from the point of view of obtaining effective relief there can be no objection to the plaintiff having brought the suit in the City Civil Court. It may be assumed that the criterion of immovable property held by or on behalf of the defendant should normally be applied to the state of things as on the date of the institution of the suit. But from the point of view of the relief sought in this case that criterion does not seem to be essential. The plaintiff is in possession and he can get the relief he wants by getting money from the defendants. The fact that the plaintiff is in possession cannot make any difference to this result and the question of relief, with which after all the Court is concerned. It seems to me that so far as this case is concerned, on the reasoning of the matter, it is permissible to ignore the criterion that the immovable property should be held by the defendants at the time of the institution of the suit. It is not necessary for the purpose of this case to go further and find out why the Legislature had to introduce that criterion. But all the same, it may not be out of place to make some observations on that aspect. It may be noted that the Proviso applies not merely to a suit where compensation for wrong to immovable property is claimed (section 16(e)) but also to suit to obtain relief in respect of immovable property which would come under section 16(d). Section 16(d) is in general terms. It may be noted that the Proviso applies not merely to a suit where compensation for wrong to immovable property is claimed (section 16(e)) but also to suit to obtain relief in respect of immovable property which would come under section 16(d). Section 16(d) is in general terms. Obviously the Legislature thought fit to enact that in such a case the immovable property should be held by or on behalf of the defendant before the plaintiff can avail himself of the benefit of the Proviso. For instance, if the property is not actually held by or on behalf of the defendant but is held by a stranger it may not be possible to give effective relief to the plaintiff if the suit is brought in the Court within whose jurisdiction the defendant resides or carries on business because it may happen that the stranger who is actually holding the property is not within the jurisdiction of such Court where the defendant actually and voluntarily resides. There may even be a case of a defendant having leased the property to a lessee say L and that lessee L may not be living within the limits of the jurisdiction of the Court where the defendant himself resides and may be living in the limits of the jurisdiction of another Court. The lessee cannot be said to be holding the property on behalf of the defendant but only on his own behalf. In such a case coming within section 16(d) it is understandable why the Legislature thought fit to introduce the criterion of immovable property held by or on behalf of the defendant. Since the Legislature was enacting the Proviso as a common proviso both under section 16(d) and (e) it appears to have inserted the words “immovable property held by or on behalf of the defendant” even though it was essentially applicable to suits falling within section 16(d). Indeed when we apply the Proviso to cases coming under section 16(e)namely, suits for compensation for wrong to immovable property, the benefit of the Proviso would have to be curtailed if the criterion of immovable property held by or on behalf of the defendant is to be strictly applied in such a case. Indeed when we apply the Proviso to cases coming under section 16(e)namely, suits for compensation for wrong to immovable property, the benefit of the Proviso would have to be curtailed if the criterion of immovable property held by or on behalf of the defendant is to be strictly applied in such a case. The present case itself is an illustration of how the benefit of the proviso would have to be denied to the plaintiff even though the plaintiff could otherwise secure effective relief by bringing the suit in the City Civil. Court. If we are to hold that the criterion of the property being held by or on behalf of the defendant should apply to all cases under section 16(e), it would limit its application only to some cases such as compensation for wrong done to immovable property while the defendant is still in possession, say as lessee or mortgagee, and would exclude the benefit of the Proviso to a case where the defendant, after committing the wrong, has surrendered possession of the property to the plaintiff. There is no reason in principle or in convenience as to why the benefit of the Proviso which is applicable to the first kind of cases where the defendant is still in possession on the date of the suit should be denied to a case where the defendant after committing the wrong has surrendered possession to the plaintiff. Hence on a consideration of the provisions of the Code as they stand unaided by the authorities, it seems to me that the City Civil Court had jurisdiction to entertain the suit and consequently this Court will also have jurisdiction. I shall now turn to the authorities. The decision mainly relied on by Sri Sivaswami, learned Advocate for the defendants is Crisp v. Watson1. There the suit was brought in the Court of the Recorder of Rangoon in respect of immovable property which was situate outside the limits of his jurisdiction (that is, outside the Municipality of Rangoon). The plaintiff was in possession of the property, namely, lands, and he alleged that while he was in possession, the defendant trespassed into the property and carried away grass growing upon the land. He claimed a sum of Rs. 500 as damages and prayed for injunction restraining the defendant from any repetition of the act. The plaintiff was in possession of the property, namely, lands, and he alleged that while he was in possession, the defendant trespassed into the property and carried away grass growing upon the land. He claimed a sum of Rs. 500 as damages and prayed for injunction restraining the defendant from any repetition of the act. On the question of jurisdiction the Recorder thought that the Proviso to section 16, Civil Procedure Code applied and he gave a decree to the plaintiff. On appeal preferred by the defendant’ the learned Judges held that the Proviso would not apply, that the case fell under section 16(e), Civil Procedure Code, namely, that it was a suit for compensation for wrong to immovable property and consequently the Recorder had no jurisdiction and the suit was dismissed with costs. The following two reasons were given as to why the Proviso did not apply. “The Proviso relates to immovable property held by or on behalf of the defendant, and it cannot toe contended, it seems to us, that when the plaintiff for the purpose of obtaining damages for the purpose of founding his action, alleges that the property is in his possession and has been trespassed upon by the defendant, he is at liberty to say for the purpose of bringing it within this Proviso, that it is held by the defendant. Therefore we think that it cannot come within the Proviso, it being land not held by the defendant, according to the plaintiff’s own case. But in addition to that we do not think that a claim for damage to land can be said to be a claim which can be entirely obtained through the personal obedience of the defendant, even though it may be joined with a claim for an injunction”. With great respect I am unable to follow the first reason given by the learned Judges for not applying the Proviso, because it seems to me that they have paid undue regard to the words actually found without examining the reason behind the Proviso. There was no consideration of the matters which I have referred to in detail. I am also unable to agree with the second reason because, in my opinion, the relief for money could have been obtained entirely through the personal obedience of the defendant in such cases, just as a relief for injunction could be secured. There was no consideration of the matters which I have referred to in detail. I am also unable to agree with the second reason because, in my opinion, the relief for money could have been obtained entirely through the personal obedience of the defendant in such cases, just as a relief for injunction could be secured. There are also observations in some other cases, to which I shall presently refer, supporting my view. The manner in which the second reason has been set out implies that if the suit had been brought merely for injunction without the claim for damages, the learned Judges would have been prepared to entertain the suit. That would imply that to that extent they did not think that the fact of the plaintiff being in possession would have disentitled the plaintiff to the benefit of the Proviso. The next decision relied on by Sri Sivaswami is Diwan Lachman Das v. Haslett2. The plaintiff filed a suit in the Court of the District Judge of Lahore to enforce specific performance of a contract made with the defendant for the sale to the defendant of a house situate in the Cantonment of Sialkot. The defendant objected to the jurisdiction of the Lahore Court. The objection was upheld on the ground that the suit was for determination of a right to or interest in immovable property within the meaning of section 16(d), Civil Procedure Code, 1882, that the right was directly in issue and not merely incidentally or collaterally in issue. It was held further that the Proviso to section 16 did not apply as the immovable property was not held by or on behalf of the defendant on the date of the suit. Now, in respect of the first reason it is in conflict with the view taken by the Full Bench of our Court in Velliappa Chettiar v. Govind Dass1 where it was held that a suit for specific performance of a contract of sale brought by the purchaser in the High Court of Madras in respect of property situate outside the limits of Madras City was not a suit for land within the meaning of clause 12 of the Letters Patent. Ramesan, J., observed at page 822: “I may observe that in a suit for specific performance the decree is primarily addressed to the defendant: that is, the Court acts in personam-which a Court of Equity is always entitled to do. Though the land may be described in the conveyance, it is not going to be touched even in the execution of the decree as in the case of a decree for sale on a mortgage, nor does any issue as to the title to the land arises in such a suit. These are strong considerations for holding that a suit for specific performance is not a suit for land.” Coutts-Trotter, C.J., observed at page 815: “But I do not think that the statute overrides one fundamental juridical distinction which obtains in every organised community in the world: viz-, that between decrees that affect the status of individuals, or bring about proprio vigore. an immediate change in the ownership of property, and decrees which merely purport to compel the defendant to do or abstain from doing something which the Court orders. In the technical language of law, it is known as the distinction between actions in rem and actions in personam; but the distinction, I think, is not technical but based as I have said on universally accepted judicial canons.” The second reason given by the Punjab Court is again based on the actual words-appearing in the Proviso to section 16 without going behind the purpose of the rule. The decision next referred to by Sri Sivaswami is Nallun Lakshmikantham v. Krishnaswami Mudaliar2 where the suit was brought to recover money by sale of some property which the plaintiff alleged had been mortgaged by deposit of title deeds. It was held that it was a suit for land within the meaning of clause 12 of the Letters Patent and since the land lay outside the limits of the jurisdiction of this Court, this Court had no jurisdiction. The decision is not helpful on the construction of the Proviso to section 16, Civil Procedure Code, because there is no such Proviso in clause 12 of the Letters Patent. The decision next relied on by Sri Sivaswami is Srinivasa Aiyangar v. Kanneppa Chetty3. The decision is not helpful on the construction of the Proviso to section 16, Civil Procedure Code, because there is no such Proviso in clause 12 of the Letters Patent. The decision next relied on by Sri Sivaswami is Srinivasa Aiyangar v. Kanneppa Chetty3. It was held there that a suit for damages for cutting and carrying away the trees on lands outside the local limits of the Ordinary Civil Jurisdiction of the High Court was a suit for land or other immovable property within the meaning of clause 12 of the Letters Patent. That decision again is not helpful on the construction of the Proviso to section 16, Civil Procedure Code, because there is no such Proviso in Clause 12 of the Letters Patent. Sri Sivaswami however relied on the reasons given by Seshagiri Aiyar, J., for the decision. The learned Judge after quoting the cases cited on either side observed: “I do not propose to examine the authorities any further. It is desirable to have a uniform rule of practice on a question of this kind. There can be no question that the balance of convenience, if that is any element in deciding this question, is in favour of declining jurisdiction. Although the defendant may be within the local limits, the witnesses to the trespass will not be ordinarily local residents; if a Commissioner is to be appointed to make a valuation after examining the property, it could better be done by a man on the spot”. Sri Sivaswami urged that similarly in this case in order to examine whether any damage was caused to the mines by the defendants, and if so, the quantum of damages, it would be necessary to send a Commissioner to submit a report after examining the property and it could better be done by a man on the spot through the Court within the local limits of whose jurisdiction the mines are situate. But no-such criterion is laid down in the Proviso to section 16 and the adoption of such a criterion would rob the Proviso of its utility for all practical purposes. For instance, take a case where the defendant is still in possession as lessee or mortgagee and the plaintiff brings a suit for damages for wrong done to the property by the defendant. For instance, take a case where the defendant is still in possession as lessee or mortgagee and the plaintiff brings a suit for damages for wrong done to the property by the defendant. Though both the criteria in the Proviso to section 16 seems to be satisfied in such a case Sri Sivaswami’s argument would entail that the Proviso cannot be applied because it will be more convenient for the Court within whose jurisdiction the mines are situate to appoint a Commissioner to assess the damage. The next decision relied on by Sri Sivaswami is Maharaja of Jeypore v. Sri Lakshmi Narasimha1 where a suit in respect of cess on certain lands within the Agency Tracts of Vizagapatam District was held to be a suit for land or other immovable property within the meaning of the Agency Rules which were identical in that respect with clause 12 of the Letters Patent. There was no Proviso in the Agency Rules like the Proviso to section 16 Civil Procedure Code and therefore that decision also is of no help to us. I shall now turn to some of the cases cited by Sri Ramaprasada Rao, learned Counsel for the plaintiff. It is sufficient to refer to Mahadeo Govind v. Ramachandra Govind2 which itself followed Kasinath v. Anant3. In Mahadeo Govind v. Ramachandra Govind2 the suit was filed in the Court of the Assistant Judge of Belgaum in Bombay Presidency to recover mesne profits of certain lands situate in Kurandwad State outside British India. The defendant relied on section 16, Civil Procedure Code, as barring the Court’s Jurisdiction. The learned Judges repelled this argument. They pointed Out that since the land lay outside British India, section 16 itself had no application and that on general principles the relief claimed was a personal relief in respect of which the Belgium Court within whose jurisdiction the defendant resided would have jurisdiction. But in the course of the discussion they pointed out that even if the land had been within British India (though outside Belgium) so as to attract section 16, still the case would have fallen within the Proviso to section. 16 because the relief sought in the case could be entirely obtained through the personal obedience of the defendant. They observed: “So that assuming for the moment that the suit was one for mesne profits relating to land in. 16 because the relief sought in the case could be entirely obtained through the personal obedience of the defendant. They observed: “So that assuming for the moment that the suit was one for mesne profits relating to land in. British India, and the land had been outside the local limits of the jurisdiction of the Court at Belgium, still if the decree directed something to be done which could be done through the personal obedience of the defendant, such as the payment of money, then the Belgaum Court would have jurisdiction to entertain the suit”. This is a clear pronouncement though obitor that a claim for payment of money will be a case where the relief sought can be entirely obtained through the personal obedience of the defendant within the meaning of the Proviso. No doubt that contrary opinion expressed by the learned Judges of the Calcutta High Court in Crisp v. Waston4, was not referred to in the Bombay decision, but I think the Bombay decision lays down the correct principle. Kasinath v. Anant3, which was followed in the above case also lays down the same principle, quoting Lord Selbourne in Ewing v. Orr Ewing5: “The Courts of Equity in England are, and always have been, Courts of conscience, operating in personam and not in rem ; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not either locally or ratione domicilii within their jurisdiction. They have done so, as to land, in Scotland, in Ireland, in the Colonies, in foreign countries”. There the suit was brought by a pujari (priest) to recover his share of the income derived by another pujari from certain endowments which were situate outside British India. It was pointed out that the title to the endowment was not in question and that what was in question was only sharing of the money after it was received by the defendant and that the Court at Nasik within whose local limits the defendant resided would have jurisdiction. It was pointed out that the title to the endowment was not in question and that what was in question was only sharing of the money after it was received by the defendant and that the Court at Nasik within whose local limits the defendant resided would have jurisdiction. In the course of the discussion I referred to section 120, Civil Procedure Code, which says: “The following provisions shall not apply to the High Court in exercise of its Original Civil Jurisdiction, namely, sections 16, 17 and 20.” That is because of the existence of clause 12 of the Letters Patent which provides for such matters. But section 120 will not apply to this suit so as to oust the applicability of section 16 because the suit was instituted in the City Civil Court and not in the High Court and what we have to see is the jurisdiction of the City Civil Court. In other words if the City Civil Court would have had no jurisdiction because of section 16, Civil Procedure Code, this Court would not acquire jurisdiction on the ground that section 16 would not be applicable to a suit instituted in this Court. Conversely, if the suit was properly instituted in the City Civil Court, then this Court would have jurisdiction, the transfer being valid under clause 13 of the Letters Patent and section 24, Civil Procedure Code. Indeed both Counsel agreed to that section 120 would not be relevant. I may add that the view that section 120 would apply so as to exclude section 16 would also bring in another complication, namely, that clause 12 of the Letters Patent would have to be applied and there is no Proviso in clause 12 similar to the Proviso to section 16. But it is unnecessary to pursue the enquiry whether this Court would have jurisdiction under clause 12 of the Letters Patent to try the suit because in my view the question to be determined is whether the City Civil Court where the suit was first instituted had jurisdiction under section 16, Civil Procedure Code. For the reasons stated above, I hold that the case comes within the Proviso to section 16, Civil Procedure Code and that this Court has jurisdiction to try the suit. V.K. -------------- Order accordingly.