Baby Chaitra vs Amar Singh

Aravind Kumar, J.—Heard Sri. S.N. Ashwathnarayan, learned counsel appearing for appellant and Sri. Ajith Kalyan, learned counsel appearing for respondent No. 4, fourth defendant before trial court and being aggrieved by order passed by trial court ordering for the plaint being returned to be presented before jurisdictional court, present appeal is filed. Though respondents 7, 10 and 11 are served and represented, none appears. Respondents 5 and 9 are served and unrepresented. Question of considering the plea of other defendants/respondents (1, 2, 3, 6 and 8) would not arise, since any order that would be passed in this appeal would not prejudice their rights in either way.

It is the contention of Sri. S.N. Ashwathnarayana, learned counsel appearing for appellant-plaintiff that trial court could not have ordered for return of plaint on the ground that item No. 7 of suit schedule property had been sold during pendency of suit and remaining properties being situated outside the jurisdiction of City Civil Court, Bangalore, as a ground. He would submit that jurisdiction of the Court is determined as on the date of plaint which in the instant case was well within the jurisdiction of City Civil Court, Bangalore, since item No. 7 of suit schedule property was situated within the jurisdiction of Bangalore city and said property has since been sold by fourth defendant with the leave of Court and issue regarding whether item No. 7 of suit schedule property is a joint family property or not, is one required to be considered by the trial Court and merely because said property has been sold, would not take away the jurisdiction of City Civil Court, Bangalore. Hence, he prays for allowing the appeal. He would also submit that said contention is fortified by the full bench Judgment of the High Court of Orissa in the case of In Re: District Judge, .

Per contra, Sri. Ajit Kalyan, learned counsel appearing for fourth respondent/fourth defendant would submit that except item No. 7 of suit schedule property all other properties are situated within the jurisdiction of Chamarajanagar District and by virtue of item No. 7 of suit schedule property, which was situated within the Bangalore city having been sold, City Civil Court, Bangalore, ceases to have jurisdiction and as such, he contends that order of trial Court passed on 19.11.2012 ordering for plaint being returned to plaintiff for being presented before the jurisdictional Court, is just and proper. Hence, he prays for dismissing the appeal.

Having heard the learned Advocates appearing for parties and on perusal of order in question, I am of the considered view that short question that arises for determination in this case is:

Whether a Court which had territorial jurisdiction to entertain the suit on the date of institution of suit, loses the jurisdiction on account of subsequent alienation of a particular item of suit schedule property or not?

In order to delve upon the said issue and adjudicate the same, it would be appropriate and apt to extract the relevant provision of Code of Civil Procedure, which would have bearing on the said issue namely, Section 16 and it reads as under:

Suits to be instituted where subject-matter situate:-xxxx

a) xxxx

b) for the partition of immovable property,

c) xxxx

d) xxxx

e) xxxx

f) xxxx

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:

Provided xxxx works for gain.

Explanation. - xxxx"

Section 16 of CPC deals with the place of suing. Any suit involving immovable property is to be filed within which jurisdiction property is situated. Compliance of provision of Section 16 of CPC is required to be examined at the time when suit is instituted, and where there has been compliance with Section 16 of CPC and suit has been listed before the appropriate Court and Court is in seizing of the case such court will continue to exercise jurisdiction. Provision of Section 16 gets spent itself after it is given effect. In fact, at a subsequent stage the question of jurisdiction of reference to Section 16 of CPC, would not arise for consideration at all.

It is not in dispute that in the instant case item No. 7 of suit schedule property is situated within the jurisdiction of City Civil Court, Bangalore, namely, it is an immovable property, a residential flat situated within the jurisdiction of City Civil Court, Bangalore. On account of said property was attempted to be sold by creditor - Bank on account of non payment of dues, fourth defendant sought leave of Court to sell said property to get a better price and as such, trial Court after consideration of the plea advanced by fourth defendant, trial Court permitted fourth defendant to sell the said property and accordingly, said property has been sold. In fact, issue that was under consideration before the trial Court before sale of said property was, as to whether the said property is a joint family property and purchased for the benefit of joint family or purchased out of the joint family funds or from out of fund generated from joint family properties. Said issue is yet to be adjudicated by the trial Court after a full fledged trial. Though fourth defendant has emphatically contended it is a self acquired property, this Court would desist from expressing any opinion in this regard, as it may prejudice rights of either of the parties, if such opinion is expressed.

Be that as it may. The fact that remains is that as on the date of presentation of plaint, one of the items of suit schedule property namely, item No. 7 was situated within the jurisdiction of City Civil Court, Bangalore, merely it has been sold subsequently with the leave of Court by fourth defendant and on account of other properties being situated outside the jurisdiction of City Civil Court, Bangalore, would not oust the jurisdiction of City Civil Court, Bangalore, particularly in the backdrop of said Civil Court, Bangalore having jurisdiction at the time plaint was presented and in fact Section 17 of CPC would clearly indicate that where there are more than one property and any one of the property is situated within the jurisdiction of said Court, such Court where immovable property is situate would continue to have the jurisdiction to adjudicate the dispute.

Hence, this court is of the considered view that it has to be held that City Civil Court, Bangalore has jurisdiction to try the suit and as such order in question cannot be sustained.

For reasons aforestated, I proceed to pass the following:

ORDER

(i) Appeal is hereby allowed.

(ii) Judgment and award dated 19.11.2012 passed by XXII Addl. City Civil & Sessions Judge, Bangalore, in O.S. No. 7690/2008, is hereby set aside.

(iii) Matter is remitted back to trial Court and City Civil Court, Bangalore, is directed to issue court notice to defendants and proceed with the matter on merits and in accordance with law.

(iv) Trial Court shall make endeavour to expeditiously dispose of the suit taking into consideration the suit is of the year 2008 and subject to both parties cooperating with the trial Court."