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Madhya Pradesh High Court · body

2000 DIGILAW 262 (MP)

Geeta Devi Napit v. Krishna Gupta and two

2000-03-13

S.C.PANDEY

body2000
ORDER S.C. Pandey, J. 1. This is plaintiff's appeal under Order 43 Rule 1 (a) of the Code of Civil Procedure against the order dated 27-11-1997 passed by First Additional District Judge, Ambikapur (Surguja) whereby the Court below has returned the plaint to the appellant for its presentation to the Court having competent territorial jurisdiction. 2. The appellant filed a suit against the respondents in the Court of District Judge, Surguja, for specific performance of contract in respect of property situate at Bhopal. The appellant, inter alia, pleaded that her husband was working as Sub Engineer in the Department of Tribal and Social Welfare, Surguja. The respondent No. 2 was also posted as Sub Divisional Officer (Construction) in the same Department. The husband of the appellant was working under him. The appellant No. 2 wanted economic assistance from the husband of the appellant for the education of the respondent, No. 3. Looking of the family terms, the appellant agreed to advance a loan of Rs. 1,30,000/- to the respondent No. 2 on condition that the suit-property detailed in Schedule-A and Schedule-B of the plaint, belonging to respondent Nos. 1 and 3 respectively, be mortgaged as a security for the loan. Pursuant to the agreement, an advance of Rs. 60,000/- was made and to the respondent No. 2 and the remaining amount of Rs. 70,000/- was to be paid at the time of executing of a Deed of Mortgage by Conditional Sale. 3. Accordingly, the agreement, Ex. P-3 was executed and signed by the respondent No. 1 in the capacity of Holder of Power of Attorney of the respondent No. 2 in favour of the appellant on 28-8-1979. It was agreed that the registered Deed of Mortgage shall be executed as soon as the appellant pays the balance of Rs. 70,000/-. On 17-10-1979, the appellant paid a further sum of Rs. 60,000/- to the respondent No. 2, towards the loan. On 8-11-1979, a further sum of Rs. 5,000/- was advanced by the appellant to the respondent No. 2. Thereafter, the respondent No. 2 did not want to enter into the registered Deed of Mortgage by Conditional Sale and avoided receipt of balance of Rs. 5,000/- towards the said loan. 60,000/- to the respondent No. 2, towards the loan. On 8-11-1979, a further sum of Rs. 5,000/- was advanced by the appellant to the respondent No. 2. Thereafter, the respondent No. 2 did not want to enter into the registered Deed of Mortgage by Conditional Sale and avoided receipt of balance of Rs. 5,000/- towards the said loan. The appellant, therefore, filed the suit against the respondents when it was made clear to the appellant that the respondent No. 2 was not ready and willing to execute the said Mortgage Deed in respect of the property situate at Arera Colony, Bhopal, mentioned in Schedule-A and Schedule-B of the plaint. 4. It is not necessary to give the details of defence of the respondents in their written statement. Suffice it to say that the respondents, inter alia, pleaded that the Court of Additional District Judge, Ambikapur (District Surguja) had no territorial jurisdiction to entertain the plaint as the property, in question, was situate at Bhopal. 5. It appears that this issue was not decided by the Trial Court as preliminary issue on the allegations made in the plaint. However, at the fag end of the trial, the learned Additional District Judge, decided the preliminary issue and has directed that the Court at Ambikapur had no territorial jurisdiction to try the suit. Learned Court below relied on a decision of this Court in the case of Prakim v. State Bank of Indore and Anr., reported in 1995 (II) MPJR 203 . But, that case is distinguishable because it is specifically covered by Section 16(c) of the Code of Civil Procedure, as in that case, it was a suit for redemption of a mortgage. 6. The learned counsel for the appellant argued that the Court at Ambikapur has not correctly appreciated the facts involved in this case and, therefore, has come to a wrong conclusion on the ground that the Court at Ambikapur, District Surguja, had no territorial jurisdiction to try the suit because the property involved in the suit, is situate at Bhopal. 7. The learned counsel for the respondent, on the other hand, argued that the learned Additional District Judge perfectly justified in coming to the conclusion that the Court at Ambikapur, District Surguja, had no territorial jurisdiction to try the suit. 8. 7. The learned counsel for the respondent, on the other hand, argued that the learned Additional District Judge perfectly justified in coming to the conclusion that the Court at Ambikapur, District Surguja, had no territorial jurisdiction to try the suit. 8. Section 16 of the Code of Civil Procedure would be applicable to the facts of the case and, therefore, it is necessary to reproduce it. Section 16 aforesaid, reads as under:-- "16. Suits to be instituted where subject-matter situate.-- Subject to the pecuniary or other limitations prescribed by any laws suits-- (a) for the recovery of immovable property with or without rent to 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." From Section 16 of the Code of Civil Procedure, above, it will be readily seen that the suit, in question, was not for foreclosure, sale or redemption in the case of mortgage of, or charge upon immovable property. For this purpose the property must be under a mortgage or a charge. This is not so here. Therefore, the suit would be covered by Clause (d) of Section 16 of the Code of Civil Procedure, as it is a suit for specific performance of a contract. The appellant claimed a right to get a Deed of Mortgage by Conditional Sale executed in her favour, provided the balance of consideration for such execution is paid; and she has stated that she is ready and willing to do so. The appellant claimed a right to get a Deed of Mortgage by Conditional Sale executed in her favour, provided the balance of consideration for such execution is paid; and she has stated that she is ready and willing to do so. Such a suit is for determination of any other right to or interest in immovable property. The right of specific performance of a contract is an equitable right which is statutorily controlled by the relevant sections in the Specific Relief Act. This right is altogether different from the rights which arise after execution of a deed. Normally, such a suit would lie where the property is situate but the proviso to Section 16 of the Code of Civil Procedure carves out an exception in respect of a relief or compensation for wrong to immovable property held by or on behalf of the defendant. It provides that in case, the relief sought to be claimed depends entirely upon the personal obedience of the defendant, then such a suit can be brought optionally where the defendant actually and voluntarily resides, or carries on business, or personally works for gain or where the property is situate. Section 20 of the Code of Civil Procedure shall not be attracted because it is 'subject to the limitation provided aforesaid', that is to say, Sections 16, 17, 18 and 19 of the Code of Civil Procedure. We are not concerned with Sections 17, 18 and 19 aforesaid. 9. The result of the aforesaid discussion is that under the facts and circumstances of the case, the suit would lie as per Section 16(d) of the Code of Civil Procedure read with proviso to it, at Bhopal, where the property is situate or where the respondents actually and voluntarily resided, or carried on business, or personally worked for gain. None of these situations arise at Ambikapur, District Surguja. The property is situated at Bhopal. The respondents Nos. 1 and 2 do not actually and voluntarily reside or carry on their business, or personally work for gain at Surguja, as it clear from the cause-title. The respondent No. 3 also does not actually and voluntarily resides or carries on his business, or personally works for gain at Surguja. 10. The learned counsel for the appellant has relied on a decision of Madras High Court in P.M.A. Velliappa Chettiar and Ors. The respondent No. 3 also does not actually and voluntarily resides or carries on his business, or personally works for gain at Surguja. 10. The learned counsel for the appellant has relied on a decision of Madras High Court in P.M.A. Velliappa Chettiar and Ors. v. Saha Govinda Dass and Ors., reported in AIR 1929 Mad. 721, wherein it has been held that a suit for specific performance of contract to sell immovable property cannot be held to be a suit for land within the meaning of Clause 12 of the Letters Patent of Madras High Court and, therefore, the High Court was competent to decide a suit for specific performance of contract entered into at Madras in respect of the property situate out side the territory or presidency town of Madras. It appears to this Court that the Full Bench of Madras High Court was interpreting the Clause 12 of the Letters Patent of Madras High Court which did not define the words "suits for land", but their Lordships were of definite opinion that a suit for specific performance of a contract is not a suit for land within the meaning of Clause 12 of Letters Patent of Madras High Court. This decision does not help the case of the appellant because their Lordships were interpreting different words used than those used in Section 16(d) of the Code of Civil Procedure. That apart, the real basis for decision in that case was that the right to file a suit for specific performance of contract is codified in the Specific Relief Act as a right in personam which is enforced by the Courts of Equity in India. This case has been distinguished by a single Judge of Madras High Court in Raja Damara Kumara Chellamma Rao Bahadur v. Dr. Bhogaraju Pattabhisitaramaiya, reported in AIR 1933 Madras 436. It was held there in that a suit for specific performance to convey the property in shape of a mortgage-deed as per agreement, was a suit covered by proviso to Section 16 of the Code of Civil Procedure and, therefore, the Civil Court where the property was situate had the jurisdiction to try the suit. In the case of New Mofussil Co. Ltd. and Anr. v. Shankerlal Narayandas Mundade, reported in AIR 1941 Bom. In the case of New Mofussil Co. Ltd. and Anr. v. Shankerlal Narayandas Mundade, reported in AIR 1941 Bom. 247 also it has been held that Section 16(d) of the Code of Civil Procedure shall govern a suit for specific performance, of contract. However, under the peculiar circumstances of that case it was held that proviso to Section 16 did not come into operation as the form of the suit was not claiming a relief in persona. 11. The decision relied upon by the learned counsel for the appellant in A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem, reported in AIR 1989 SC 1239 , does not apply to the facts of this case as that was the case of breach of contract. So also, the case of Hakam Singh v. Mis. Gammon (India) Ltd., AIR 1971 SC 740 wherein Section 20 of the Code of Civil Procedure came into operation under the facts and circumstances of that case. In that case the Court was not called upon to decide the matter of specific performance of contract. Another decision relied on by the learned counsel for the appellant in Om Prakash and Anr. v. Aner Singh and Ors., reported in is also of no help to the appellant as in that case there was a suit for injunction in respect of immovable property. 12. The result of the aforesaid discussion is that the Trial Court has rightly returned the plaint to the appellant for its presentation to the proper Court as the suit of the appellant/plaintiff is covered by Section 16(d) of the Code of Civil Procedure readwith proviso to Section 16 thereof. The Civil Court at Ambikapur, District Surguja had no jurisdiction to try the suit. The appeal fails and it is hereby dismissed, accordingly, There shall be no order as to costs. The record of the Court below alongwith a copy of this order be sent back within a period of one month from today so that the appellant/plaintiff may take the plaint back by 24th of April, 2000 for its presentation to the proper Court.