Research › Search › Judgment

Himachal Pradesh High Court · body

2006 DIGILAW 150 (HP)

Hari Chand v. Jaishi Ram

2006-05-24

DEEPAK GUPTA

body2006
JUDGMENT Deepak Gupta, J. 1. This appeal raises a short question of law with regard to the jurisdiction of the trial Court, who heard the suit. 2. The facts relevant for the decision of the present appeal are that the plaintiff filed a suit for specific performance of contract claiming that the defendants No. 1 and 2 had entered into an agreement to sell certain property situate in Tehsil Dehra, to him for a total consideration of Rs. 12,000/-. According to the plaintiff, he had paid Rs. 8,000/- in advance. Defendants No. 1 and 2 contested the suit and filed a written statement The agreement was admittedly executed within the territorial jurisdiction of the Courts at Amb. This suit was contested on various grounds and one of the grounds of contest was that the Court at Amb had no jurisdiction to decide the matter, since the immovable property, specific performance with regard to which was sought, was situated in Tehsil Dehra, territorial jurisdiction of which fell within the domain of the Courts at Dehra. 3. The learned trial Court came to the conclusion that since the agreement was entered into at Amb, the Court at Amb had jurisdiction to entertain the suit and accordingly decide this issue against the defendants and the suit of the plaintiff was decreed. 4. It would be appropriate to mention here that during the course of the suit, it had transpired that in fact defendants No. 1 and 2 had sold their shares in the suit land to defendant No. 4 Jaishi Ram, who was impleaded as defendant No. 4. As the defendant No. 4 was the only aggrieved party, he filed the appeal before the learned lower appellate Court. The learned lower appellate Court held that the suit was governed by Section 16 of the Code of Civil Procedure and since the suit related to right or interest in immovable property situate within the territorial jurisdiction of the Courts at Dehra and outside the jurisdiction of the Court at Amb, the Court at Amb had no jurisdiction. The appeal was allowed and the plaint was ordered to be returned to the plaintiff for presentation before the appropriate Court at Dehra. This order is under challenge in this appeal. 5. Mr. The appeal was allowed and the plaint was ordered to be returned to the plaintiff for presentation before the appropriate Court at Dehra. This order is under challenge in this appeal. 5. Mr. Ajay Sharma, learned Counsel for the appellant, has contended that the present suit is covered by the proviso to Section 16 of the Code of Civil Procedure. Section 16 of the Code of Civil Procedure reads as follows: 16. 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. 6. Relying upon the proviso, Mr. Ajay Sharma contends that the relief sought for in the suit i.e. specific performance of the contract can be obtained at Amb by the personal obedience of defendants No. 1 and 2 at Amb and, therefore, the Court at Amb had jurisdiction to entertain the suit. 7. On the other hand, Shri Bhupender Gupta, learned Senior Counsel, appearing on behalf of respondent No. 1, submits that the dispute in the present case is squarely covered by the judgments of the Apex Court in Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. and Anr. AIR 2005 SC 4446 , as well as the earlier judgments of this Court in Roshan Singh alias Roshan Lal v. Ranbir Pal Singh 1996(2) SL.C. and Ranjana Nagpai alias Ranjana Malik v. Devi Ram and Ors. 8. AIR 2005 SC 4446 , as well as the earlier judgments of this Court in Roshan Singh alias Roshan Lal v. Ranbir Pal Singh 1996(2) SL.C. and Ranjana Nagpai alias Ranjana Malik v. Devi Ram and Ors. 8. In Roshan Singh's case (supra), the suit was filed for specific performance of the agreement relating to land situate in Tehsil Kasauli. In that case an objection was raised that the agreement had been entered into at Chandigarh and the parties by agreement had agreed that the Courts at Chandigarh only will have jurisdiction to decide the matter. There was no dispute with regard to the question that, the agreement had been executed at Chandigarh and contained a clause whereby the parties had agreed that the Courts at Chandigarh only would have jurisdiction to hear the dispute with regard to such matters. 9. In Ranjana Nagpal's case, the property in question was situated at Shimla and the agreement regarding the sale of the property was executed at Delhi. Admittedly, the agreement was entered into at Delhi and this agreement also contained a clause that the parties had agreed that the Courts at Delhi alone would have jurisdiction to decide any dispute arising out of such agreement. 10. In Harshad Chiman Lal Modi's case, decided by the Apex Court, the agreement was entered into at Delhi and contained a clause that the Courts at Delhi alone would have jurisdiction. The property in question was situated at Gurgaon. 11. It is contended by Mr. Ajay Sharma that in all these cases, the parties had agreed to ouster of the jurisdiction of the Courts where the property was situated and it is in the light of these clauses that the judgments have been given and therefore, they are not applicable to his case. 12. This contention is absolutely baseless. In fact, the case of the present appellant stands on a worse footing. In all the three cases referred to above the parties had agreed to exclude the jurisdiction of the Court where the property was situated. Despite this agreement the Courts held that the only Court which would have jurisdiction is the Court having territorial jurisdiction over the area in which the property in dispute was situated. In all the three cases referred to above the parties had agreed to exclude the jurisdiction of the Court where the property was situated. Despite this agreement the Courts held that the only Court which would have jurisdiction is the Court having territorial jurisdiction over the area in which the property in dispute was situated. The Courts held that in a suit for specific performance of contract of immovable property, the same could only be filed in the Court where the property was situated and even by agreement of parties the jurisdiction could not be conferred on the Court within the territorial jurisdiction of the Court the agreement had been executed. In this behalf, it will be pertinent to refer to the observations of the Apex Court in Harshad Chiman Lal Modi's case (supra), which read as follows: 16. The proviso is thus an exception to the main part of the Section which in our considered opinion, cannot be interpreted or construed to enlarge the scope of the principal provision. It would apply only if the suit falls within one of the categories specified in the main part of the Section and the relief sought could entirely obtained by personal obedience of the defendant. 17. In the instant case, the proviso has no application. The relief sought by the plaintiff is for specific performance of agreement respecting immovable property by directing the defendant No. 1 to execute sale deed in favour of the plaintiff and to deliver possession to him. The trial Court was, therefore, right in holding that the suit was covered by Clause (d) of Section 16 of the Code and the proviso had no application. 18. In our opinion, the submission of the learned Counsel for the appellant that the parties had agreed that Delhi Court alone had jurisdiction in the matters arising out of the transaction has also no force. Such a provision, in our opinion, would apply to those cases where two or more Courts have jurisdiction to entertain a suit and the parties have agreed to submit to the jurisdiction of one Court. 13. A perusal of the aforesaid judgment of the Apex Court clearly reveals that the Apex Court had held that the proviso to Section 16 is an exception to the main part of the Section and cannot be interpreted to enlarge the scope of the original Section itself. 13. A perusal of the aforesaid judgment of the Apex Court clearly reveals that the Apex Court had held that the proviso to Section 16 is an exception to the main part of the Section and cannot be interpreted to enlarge the scope of the original Section itself. The Apex Court specifically held that this proviso has no applicability in cases relating to specific performance of contracts in respect of immovable property. In my opinion, the law is absolutely clear that a suit with regard to specific performance of contract relating to immovable property has to be filed in the Court having territorial jurisdiction over the area in which the property is situated. Therefore, the Court at Amb had no jurisdiction to entertain or try the suit. The judgment of the learned lower appellate Court is correct. 14. Mr. Ajay Sharma contends that in-fact respondent No. 4, Jaishi Ram, who was the appellant before the lower appellate Court, had not raised the objection of jurisdiction before the trial Court and therefore, in appeal or revision he could not be permitted to do so, in view of the provisions of Section 21 of the Code of Civil Procedure. 15. In my opinion this objection is also misplaced, in view of the fact that though defendant No. 4 had not raised this objection, this objection had already been raised by the contesting defendants and a specific issue had already been framed with regard to the jurisdiction of the Court. Issue No. 3 reads as follows: Whether this Court has no jurisdiction to try the present suit, as alleged? OPD. 16. It would not be out of place to point out that the issue was framed on 20th October, 1989. Defendant No. 4 had not even been impleaded as a party at that stage. Thereafter, he was impleaded as a party. Since this objection had already been raised as a legal objection, it was not necessary for him to repeat the same. Therefore, this contention is rejected. 17. No other point has been urged. 18. In view of the above discussion, the appeal is dismissed. No order as to costs.