A. Giridhar and another vs A. Suresh and others

M.N. Chandurkar, C.J.—This Application which has been placed before this Bench is under Cl. 12 of the Letters Patent, for leave to sue the defendant for partition and separate possession of the suit property. The averments in the plaint show that partition is claimed in respect of immovable property which consists of houses and agricultural lands. All the houses are situated in Madras. However, the agricultural lands are situated in Chingleput Dt. Out of the 13 defendants, defendants 1 to 4 and defendant 6 are residents of Madras. Defendants 5 and 7 to 13 are residing out of Madras.

When this application for leave under Clause 12 of the Letters Patent was placed before the learned Judge, the learned Judge took the view on a consideration of the provisions of Clause 12 that a suit for land or other immovable property cognizable on the Original Side of the High Court only it the whole of the property was situate within the local limits of the ordinary original civil jurisdiction of this Court. The learned Judge also took the view that any other suit falling under the latter part of Clause 12 of the Letters Patent can be instituted on the Original Side of this court only if all the defendants (where there are more than one), at the time of the commencement the suit, shall dwell or carry on business or personally work for gain within the local limits of the ordinary Original Civil Jurisdiction of this court.

It was contended before the learned Judge on behalf of the plaintiffs that where a part of the property is situated within and a part of it outside the jurisdiction of this court, a suit could be filed with the leave of the Court in respect of such property also and reliance was placed on certain observations of Seshagiri Aiyar, J. in Mahalingam v. Natesa Iyer 1916 I M.W.N. 146, where the learned Judge observed that the jurisdiction Mo receive, try and determine suits in the case of claims where the property is situate partly within and partly outside the jurisdiction of the High Court is dependent on the leave of the court. The learned Judge read this observation purely obiter as according to the learned Judge in the said case Seshagiri Aiyar, J. has not referred to any provision of law conferring power on this court to grant such leave.

Clause 12 of the Letters Patent of the Bombay High Court had come up for consideration ID that court in Shiv Bhagwan Moti Ram Saraoji Vs. Onkarmal Ishar Dass and Others, . A similar clause of the Letters Patent of the Calcutta High Court had come up for consideration in Surendrakrishna Roy Vs. Shree Shree Ishwar Bhubaneshwari Thakurani, and Benoy Shankar Dhandania and Others Vs. Choteylal Dhandania and Others, In these decisions, the Bombay and the Calcutta High Courts had taken the view that in cases of suits for land if leave was taken under Clause 12 of the Letters Patent, the Court can entertain such suits if part of the land or immovable property was situated within its jurisdiction.

The learned Judge, however was unable to persuade himself to accept the view of the Bombay and the Calcutta High Courts as correct. He, therefore, desired that there should be an authoritative pronouncement by a larger Bench on the following question:

Whether this Court has power under Clause 12 of the Letters Patent to grant leave to use in a suit for land or other immovable property where portions of the property are situate within and portions out side the local limits of the ordinary original civil jurisdiction of this Court and in any other suit where some of the defendants reside outside such limit?

This reference became necessary because the learned Judge took the view that the proper way to construe Clause 12 of the Letters Patent would be to divide it into three parts as follows--

I. If, in the case of suit for land or ether immovable property such land or property shall be situated within the local limits of the ordinary original civil jurisdiction of this court;

II. or in all other casts, if the cause of action shall have arisen, either wholly or, incase of the leave of the court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of this court; and

III. or, if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain within such limits.

Having divided Clause 12 into three parts, the learned Judge took the view that the power to grant leave to sue is conferred on the High Court only incases falling in part II i.e., suits other than suits for land or immovable properly, and where the cause of action shall have arisen in part within the ordinary original civil jurisdiction of this court. The learned Judge took the view that there is no power to grant leave to sue in cases falling under part I. i.e. in suits for land or other immovable property where any portion of the property in suit is outside the ordinary original jurisdiction of this court or in other suits were some of the defendants (where there are more than one) reside outside the ordinary original civil jurisdiction of the High Court.

The breaking up of Clause 12 into three parts by the learned Judge would show that the words ''either wholly, or, in case the leave of the Court shall have been first obtained, in part'' have been held to be inapplicable in cases of suits for immovable property where a part of the property is outside the ordinary original civil jurisdiction of the High Court.

Fortunately, it is not necessary for us to go afresh into the scope of Cl. 12 or into the correctness of the view taken by the learned Judge. It appears to us that though the order of the learned Judge doubting the Bombay and Calcutta decisions was made on 17-11-1986, a Division Bench decision of this Court which is squarely on the point and reported much earlier in Bank of Madurai Ltd. Vs. Balaramadass and Brothers and Others, , was not placed before the learned Judge. That was a suit in which the question which essentially fell for consideration was whether a suit on mortgage for sale of the mortgaged property was one for land or not. The learned single Judge had taken the view that he could not agree with the view taken by another single Judge in the decision in the State Industries Ltd. v. Arvind Distillery and Chemical Ltd. 95 L.W. 167= AIR 1982 Mad. 273, and the learned single Judge had therefore referred the above question to a larger Bench. The Division Bench in the decision in Bank of Madurai case 97 L.W. 485= AIR 1985 Mad. 1, took the view that since admittedly in that suit all the defendants resided within the territorial jurisdiction of this Court, this Court had clear jurisdiction to entertain the suit and therefore the question referred as to whether the suit was one for land or not did not arise and the same need not be gone into in that case. What is however of considerable importance is that the Division Bench construed the scope of the provisions of Cl. 12 of the Letters Patent and for the purpose of a proper appreciation of the scope of that Clause it divided the Clause into three parts as follows:-

1.

If in the case of suit for land or other immovable property such land or property shall be situated

either wholly or, in case the leave of the court shall have been first obtained, in part

within the local limits of the ordinary original jurisdiction of the said High Court.

2.

Or, in all other cases, if the cause of action shall have arisen

3.

Or, if the defendant at the time of commencement of the suit shall dwell or carry on business, or personally work for gain.

within such limits

The Division Bench thus found that the Clause ''either wholly, or, in case the leave of the Court shall have been first obtained, in part'' governed not only that part of the Clause which referred to all ''other suits'' in which the question of the arising of the cause of action became relevant but also the earlier part of Cl. 12, viz., ''If in the case of suits for land or other immovable property such land or property shall be situated. In other words, as construed by the Division Bench in so far as suits for land or other immovable property are concerned, the material part of Cl. 12 had to be read as follows--

If, in the case of suits for land or other immovable property such land or properties shall be situated...either wholly or, in case leave of the court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court.

The learned Judges of the Division Bench, therefore, held that even where a part of the property is situated outside the jurisdiction of the High Court then, with the leave of the court, a suit in respect of land or other immovable property can be filed on the Original Side of this Court. The fact that this construction is an authoritative construction is clear from the following observations of the Division Bench--

Grammatically, this is the only reading possible in view of the respective places in the sentence of the phrases within the local limits of the ordinary original jurisdiction of the said High Court and within such limits. Any other reading would be illogical. The resulting position is that this court has jurisdiction when the defendant resides within the local limits, wherever the property may be situated.

The Division Bench referring Cl. 12 of the Letters Patent, observed in paragraph 5 as follows-

...This Clause 12 of the Letters Patent, 1865, makes an exception to the universal principle of granting jurisdiction in respect of immovable property to the court within the jurisdiction of which the immovable property is situate. The rule of forum loci has been deliberately omitted in respect of the High Court. This has been confirmed by the provisions of S. 120 C.P. Code, stating that the provisions of Ss. 16, 17, and 20, shall not apply to the High Court in the exercise of its original civil jurisdiction.

In Siva Bhagwan''s case AIR 1952 Bom. 365, dealing with the concept of cause of action in a suit for partition and possession of land, when it was argued that it was not necessary to allege in the plaint where the property existed and that it would be sufficient if the property existed irrespective of the location of the property, the Division Bench of the Bombay High Court, while dealing with the question as to whether the High Court had jurisdiction to try the suit for partition, observed as follows:-

It is well settled that a suit for partition of immovable property is a suit for land. And under Clause 12 of the Letters Patent, the court would have jurisdiction to the case of suits for land or other immovable property if such land or property is situated within jurisdiction. The construction of Clause 12 has been responsible for more judicial decisions than perhaps any other clause in the Letters Patent, and many learned Judges have pointed out the various possible constructions to which the language of Clause 12 lends itself.

But the view accepted by this court is that, in cases of suits for land, if leave is taken under Clause 12, the court can entertain such suits if part of the land or immovable property is situated within jurisdiction...

It is suggested that it would not be necessary to allege where the property existed and that it would be sufficient if the property existed irrespective of the location of the property. This argument is based upon a misunderstanding of the true meaning of the expression ''where the cause of action arises''. The first duty of the Court is to ascertain what facts constitute the cause of action.

Having ascertained that, the next duty of the court is to ascertain where these facts arose. It is perfectly true that the existence of a property at a particular place is not a part of the cause of action. What is apart of the cause of action is the existence of the property. But having ascertained that the next question is, ''where did that, fact, namely, the existence of the property, arise?" And if the property is situated in Bombay, then, to the extent of that particular fact constituting the cause of action the cause of action arises in Bombay. Certain facts constitute a cause of action irrespective of where they arise But the importance of where they arise arises only in connection with the question of jurisdiction.

It is only in order to determine the jurisdiction that the question has to be considered as to where certain facts arose. Therefore, in my opinion, if the existence of property is a material fact constituting a part of the cause of action in a partition suit, then the location of the property must be considered in order to determine the jurisdiction of the Court. If the properly or part of the property is situated within jurisdiction, then the cause of action or a part of the cause of action has arisen within jurisdiction.

(underlining is ours).

Further, in paragraph 12 of the Judgment, Chagla, C.J. pointed out as follows--

Now, as I have pointed out before, in the case of a suit for land, the court has jurisdiction to entertain the suit even though some of the lands are situated outside the jurisdiction, provided some lands are situated within jurisdiction, and leave has been obtained under Clause 12. But the very foundation of the jurisdiction of the Court is leave granted on the basis of some immovable property situated with in jurisdiction. Now, the granting of leave is a judicial act, and the Court must judicially consider the fact of some property being within jurisdiction, and, on the consideration of that fact, proceed to give leave under Clause 12.

The Calcutta High Court has also taken the same view of Clause 12 of the Letters Patent in Surendrakrishna Roy Vs. Shree Shree Ishwar Bhubaneshwari Thakurani, . The appeal before the Division Bench arose out of a suit for possession of properties situated in Calcutta as well as property situated in the mofussil. Dealing with the question of jurisdiction of the Calcutta High Court on the Original Side, Rankin, C.J. observed as follows-

The question of jurisdiction must be answered by reading Clause 12 Letters Patent of 1865. The suit, in my judgment, is a suit for land within the meaning of Clause 12, which says that this Court shall have jurisdiction to entertain a suit if the land is situated either wholly or, in case the leave of the Court shall have been first obtained, in part within the local limits of its Ordinary Original jurisdiction.

In a later decision in Benoy Shankar Dhandania and Others Vs. Choteylal Dhandania and Others, , the Division Bench of the Calcutta High Court observed in paragraph 20 as follows-

Whatever may be the grammatical construction of Clause 12, it is now well established that in a suit for land, if the entire land is not situate within jurisdiction it is necessary that leave of the Court should be obtained before the institution of the suit in order that the suit may be filed in this Court. It is unnecessary to refer to the authorities which are numerous. I will only set out a passage from the judgment of Rankin, C.J. in Manindrachandra v. Lal Mohan 56 Cal. 94. The passage is as follows�Clause 12, is a clause which, if was to be construed for the first time according to its grammatical construction and in strict accordance with its wording, might perhaps have to be given a somewhat different meaning to that which is well settled now in all the High Courts of India. The effect of the construction upon which all the High Courts are agreed is that as regards suits for, land the High Court can take cognizance, if the land is situate wholly within the local limits or where the land is situate in part only within such limits, if leave has been first obtained, and that as regards suits, other than those for land, the High Court has jurisdiction, if the cause of action has arises wholly within the limits or where the cause of action has arisen in part only within the limits, if the leave of the court shall have been first obtained or if the defendant dwells or carries on business or personally works for gain within these limits.

It thus appears to us that while there can be no controversy that as regards suits for land or immovable property where the whole of land or immovable property is situated within the ordinary original jurisdiction of the High Court, the High Court can take cognizance of such suits, it is also well established that even though a part of the land or immovable property is situated within such limits and part outside the limits, if leave has been first obtained, a suit for such land or immovable property can be entertained by the High Court in its ordinary original civil jurisdiction. The construction placed before the Division Bench of this Court in the Bank of Madurai''s case 97 L.W. 485= AIR 1985 Mad 1, is clearly in consonance with the construction placed on Clause 12 of the Letters Patent in the decisions of the two other Chartered High Courts, which have been followed now for more than fifty years. We respectfully agree with the view taken in the Bank of Madurai Ltd. Vs. Balaramadass and Brothers and Others, It does not therefore appear to us necessary that the scope of Cl. 12 of the Letters Patent needs to be reconsidered a fresh. We are inclined to observe that if the decision in the Bank of Madurai Ltd. Vs. Balaramadass and Brothers and Others, had been placed before the learned Judge, probably the occasion for making a reference to the Division Bench would not have arisen. Having regard to the scope of Cl. 12 as construed by the Division Bench in Bank of Madurai Ltd. v. Balaramdas and Bros. 56 Cal. 94, the plaintiffs are clearly entitled to leave to file the present suit. We may also make it clear that the plaintiffs are also entitled to leave notwithstanding the fact that some of the defendants reside outside the jurisdiction of this Court as the suit expressly falls within the first part of Cl. 12 as analysed by the Division Bench. Accordingly, this petition for leave is allowed.