Laxmi Kumar Srinivas Das vs Krishnaram Baldev Bank and Another

Chaturvedi, J.—Two revisions, one by Laxmi Kumar and another by his minor son Krishna Kumar been filed in this Court against an order 11-8-52 passed by the Additional District ge,(sic) Gwalior, in Civil Criminal Suit No. 4 of (sic) valued at Rs. 5,54,697/-. This judgment will of both the revisions. The suit as (sic) framed was filed against them by Krishna (sic) Baldev Bank, Lashkar, through its Mana- (sic) Mr. Jal Bharucha, on the basis of three (sic) deeds dated 22-3-48, 13-4-48 and 13-4-(sic) to have been executed by Laxmi in favour of the Bank. The Defendants (sic) objected to the suit filed by the Bank an (sic) was made by Mr. Jal Bharucha and er(sic) by His Highness Maharaja Jiwaji, Rao for amendment of the plaint. It trans- I'' (sic) that the said Bank is neither a juristic (sic) nor a firm as defined in Order 30, Rule (sic) the Code of Civil Procedure, but is the (sic) property of His Highness Maharaja (sic) and during the days when the Ruler of (sic) State had sovereign rights, a notifica (sic) had been published in the Gwalior Govern Gazette dated 19th July 1924 authorising said Bank to sue and be sued in its own (sic)

The learned Additional District Judge thought (sic) this Notification having been made under (sic) provisons of the Gwalior CPC is still (sic) as it is saved by Section 157, Indian Civil. I have perused the Notification and I find (sic) there is no reference anywhere in it to the (sic) CPC or to any other (sic) Gwalior State. Moreover it appears to be (sic) with the provisions of the Indian CPC which as today in force in Madhya (sic). I am, therefore, of opinion that CPC could not have saved this Notification and it could not have been in force at the date of institution of the suit. Of course, I concede that the Notification of 1924 was responsible for the mistake, which cannot be but a bona fide one within the meaning of Rule 10 of Order 1 which runs as follows:

Where a suit has been instituted in the name of wrong person as Plaintiff...the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, order any other'' person to be substituted.

The learned Additional District Judge has allowed the amendment on payment of Rs. 500/- as costs to the Defendants Petitioner and the Plaintiff''s name now, stands as "Lt. General His Highness Maharaja Jeewaji Rao Madhava Rao Scindia, sole proprietor of, and carrying on business under the name and style of, Krishna Ram Baldev Bank, Jayaji Chowk, Lashkar. "Through some inadvertence, it appears that the words" through Mr. Jal S. Bharucha Manager" still remain on the plaint and ought now to be deleted.

Shri Kanhyalal, learned Counsel for the Petitioners, contends that where the original Plaintiff had no right of suit, the suit must be deemed not to have been validly commenced and such a defect could not be cured by an amendment and so the plaint ought to be rejected and that a fresh suit must be filed. I do not think there is any substance in this argument; for, the words in Rule 10 Order 1 CPC are in direct contrast with the argument addressed. the words "where a suit has been instituted in the name of the wrong person as Plaintiff" are quite clear and must be construed to include those suits which are instituted by persons who had no right to do so.

If it is laid down in any ruling that no amendment is possible or permissible in a case where the original Plaintiff had no right to sue, I should, with all respect, disagree with that interpretation as it would contravene the clear provisions embodied in Order 1, Rule 10. I am fortified in this view by a ruling reported in-Krishna Bai v. Collector and Govt. Agent Tanjore 30 Mad 419(A) and Anr. reported in - AIR 1934 159 (Nagpur) .

In - Hughes v. Pump House Hotel Co. Ltd. (No. 2) (1902) 2 KB 485(C) the Court of Appeal clearly held that where an action has, through a bona fide mistake, been commenced in the name of the wrong person as Plaintiff, the fact that the original Plaintiff has no cause of action does not take away the jurisdiction of the Court to order the substitution of another person as Plaintiff. Their Lordships of the Judicial Committee followed this ruling in - AIR 1939 170 (Privy Council) . In fact, the trial Court is vested with wide discretion under Order 1, Rule 10 and when the Court has exercised this discretion to prevent the suit being defeated upon a purely technical ground, this Court will not interfere, in its revisional jurisdiction, with the orders passed allowing the amendment.

The second point taken by the learned Counsel for the Petitioners in this revision, is that the three mortgage deeds concern separate properties in different districts and that the Gwalior Court has no jurisdiction to take cognisance of the suit. According to the learned Counsel, these suits ought to have been filed, one in Gwalior, another in District Bhind, and the third in District Shivpuri, and, that the mortgaged properties being situate in different districts a consolidated suit was not permitted by law. The learned Counsel also draws my attention to para eight of the plaint which alleges that as the Defendants reside in Lashkar and the debts had to be paid in Lashkar, the Gwalior Court has jurisdiction to decide the suit. He attacks the reasoning of the trial Court which is very brief on this point and is contained in para 27 of his judgment which is as follows:

I carefully considered this question and I do not find much force in this argument. If Section 17, Code of Civil Procedure, is read with Order 2, Rule 3, the whole suit becomes triable by this Court, vide - AIR 1930 188 (Privy Council) and - Har-chandar Singh v. Lal Bahadur Singh 16 All 359(F). Again u/s 67A of the Transfer of Property Act, it is necessary for the mortgagee to include all toe mortgage claims in one suit. It has-been held in - Corporation of Calcutta Vs. Kumar Arun Chandra Singh and Others, that the section is wide enough to include cases where different properties are mortgaged by the mortgagor to the same mortgagee.

I agree with the learned Counsel that so far this point is concerned, the para of the judgment quoted above is riddled with defects and the rulings oited do not lay down the proposition which the learned Judge thought they do. Section 67A, T.P. Act was added to the T.P. Act by Act 20 of 1920 and was intended to benefit the mortgagor by cutting down the former rights of the mortgagee. In the case of a number of mortgages in which the only remedy is sale, it was thought that the property would never realise its fair and proper value if it be sold subject to another mortgage and so the mortgagee was not allowed to enforce one mortgage and keep the other mortgages alive. But from the language of Section 67A it is clear that only those mortgages could be consolidated which the Court, in which the mortgagee sues, has jurisdiction to enforce. See - Prem Sukh Mahata v. Mangal Chand 41 CWN 854 (H). This ruling has been followed by Dunkley J. in - Daw Kyn v. Ko Ba Tin AIR 1339 Rang 247 (I) and on the basis of these rulings I am clear in my mind that the provisions of Section 67A can have no application unless a suit on all the three mortgages could be brought in the same Court.

As regards Rule 3 Order 2, Code of Civil Procedure, the provisions embodied in it allow a Plaintiff ordinarily to unite in the some suit several causes of action against the same Defendants. But I agree with the opinion expressed in - Karamsingh v. Kunwar Sen AIR 1942 All 387 (J) that the provisions are subject to the condition that the Court has jurisdiction in respect of all the causes of action involved. Respectfully I also agree with the opinion expressed in that case that the main body of Code of Civil Procedure, sets forth the fundamental principles which can be amended by the Legislature itself end that the rules in Schedule. I deal with matters of detail which can be modified by the High Courts with the previous approval of certain authorities and that no rule in the Schedule can confer upon any civil Court jurisdiction which it would not have under the provisions in the body of the Code.

I agree with Shri Kanhyalal, learned Counsel for the Petitioners, that neither Section 67A, T.P. Act nor Order 2, Rule 3 had any application to the facts of this case as neither of the (sic) amend the provisions embodied in Section 16 Code of Civil Procedure.

It follows that it is only Section 16, CPC that is relevant in this connection and (sic) construction of this section and of Section 17 (sic) depend the fate of this revision. u/s (sic) suit to enforce a mortgage on land must (sic) other suit for land be brought in the Court in whose jurisdiction the land is sit (sic) though the remedy on the covenant may (sic) be sought in a different forum. If the mo (sic) had sued only for the mortgage money (sic) would have been no difficulty in apply (sic) provisions of Rule 3 Order 2 or the theory (sic) the debtor must find his creditor. But (sic) suit is only for enforcing the mortgages'' cardinal principle of law that the forum (sic) is the only one in which all rights con'' (sic) land must be tried will be applicable.

This principle has been adopted by the (sic) lature in Section 16 of our CPC which (sic) that suits concerning immovable property- of (sic) description mentioned in Sub-sections (a) to (sic) of that section will have to be instituted (sic) Court within the local limits of whose (sic) j tion the immovable property is situate. (sic) 17 supplements the provisions of Section 16 and,(sic) as follows:

Where a suit is to obtain relief respect (sic) compensation for wrong to, immovable (sic) perty situate within the jurisdiction of (sic) rent Courts, the suit may be instituted in (sic) Court within the local limits of whose diction any portion of the property is (sic) rovided that, in respect of the value (sic) subject matter of the suit the entire cal (sic) cognisable by such Court.

Clearly the provisions of Section 17 are intend (sic) solve a difficulty which would arise, if there (sic) dispute about some immovable property (sic) is situated partly within one jurisdiction (sic) partly within another. A single example (sic) be furnished by a thousand acres field pa which may be conterminous or adjacent but (sic) stretch in several districts. Shri Kan (sic) draws my attention to the words "any (sic) of the property" and refers to the observ (sic) of their Lordships of the Allahabad High (sic) in AIR 1942 All 387 (J) that the property be one property and must be capable of (sic) described as a single entity. Whether it can (sic) cannot be described as such will, of course (sic) pend upon the nature of the dispute between parties, and also in my opinion, upon the (sic) tion of the parties when they struck the gain or entered into a contract about such (sic) perty. If, for example, there is a dispute, (sic) an estate or about a portion of it that (sic) for the purposes of that suit will obvio (sic) considered to be a single entity.

The entire estate (comprising of sixty (sic) may be mortgaged and the villages may (sic) ated in different jurisdiction. Yet the (sic) estate will be regarded as one property. (sic) may then be joint property or joint family perty consisting of houses, stables, offices (sic) downs, factories, gardens, fields etc. scatter (sic) several districts and for a partition suit property will be considered to be a single So a suit in District A for recovery of po (sic) of immovable property within the (sic) jurisdiction of different Courts was held to been properly brought - (''Har Chander (sic) v. Lal Bahadur Singh 16 All 359(F)).

(sic) An extreme example of the application of it is furnished by - Krishnaswami Reddiar alias Rajah Chidambara Reddiar Vs. Venugopala Reddiar by his agent V.A. Lakshminarasimha Aiyar and Others, (sic) the Defendants resided in Rangoon and laintilf (sic) had filed a suit against them in (sic) Court of the Subordinate Judge of Triclinc-(sic) praying, inter alia, for the recovery of on of certain movable and immovable (sic) or in the alternative for partition of properties, the large part of which was in (sic) and the small part was in the jurisdic (sic) of the Subordinate Judge of Trichnopoly (sic)the course of proceedings Section 46(2) of the (sic) India Act, 1935 and the India (sic) Burma (Existing Laws) Act, 1937 came into (sic) on and Burma ceased to be part of India, (sic) Defendant''s contention that the Court ceased (sic) have jurisdiction in respect of the properties (sic) in Burma was upheld by the Subordinate (sic) but the Madras High Court overruled the (sic) on the ground that once the Court (sic) seisin of the case it has jurisdiction to try right to con (sic) suit properly filed (sic) April 1S37 was not taken (sic) of India Act, 1935.

(sic) This decision was upheld by the Federal (sic) AIR 1943 24 (Federal Court) on the ground that right to continue a duly instituted suit is in nature of a vested right and it cannot be (sic) away except by a clear indication of into to that effect, and as there was no indi(sic) against the continuance of pending pro (sic) to their normal termination the suit (sic) proceed. The application of the principle led in Section 17, CPC to the facts of case is clearly seen when we notice that (sic) vardachariar who delivered the judgment (sic) federal Court prefaced his judgment with following sentences:

1st April 1937 Burma ceased to be part of During the time that it remained part British India, it was permissible u/s CPC to include immovable property situ- in Burma as part of the subject matter suit instituted in any other province. (sic) is the effect of the separation on a suit this kind which was pending at the time a South Indian Court?

(sic) not multiply authorities for the proposi (sic) that in suits for the possession of, or sale vable (sic) property in different districts the (sic) embodied in Section 17 can be made appli (sic) it was not made applicable to the facts (sic) 1942 All 387 (J) it was duo to the fact (sic) Plaintiffs in that case were not claim (sic) estate of the deceased Badri Das as (sic) any rival claimant to the estate, (sic) were claiming two different proper-(sic) two different sets of Defendants (sic) alleged to be trespassers and who connection with each other. The decision upon the principle that unconnected by a Hindu widow, of properties com (sic) in the husband''s estate did not give one cause of action against the various (sic)

(sic) also rightly laid down, in that case that (sic) an estate has a claim against un-(sic) who have trespassed upon parts of the estate or different pro (sic) within it, those parts or those (sic) would not for the purpose of the dis (sic) him and the trespassers be one entity but several entities, and, in these circumstances, the provisions of Section 17 would not apply. From a perusal of the ruling I have no doubt in my mind that if in that case the Plaintiffs had claimed possession of the properties situated in Hardwar and Amritsar from one set of Defendants only the properties would have been considered by their Lordships to be one single entity so as to attract the application of Section 17, Code of Civil Procedure.

Applying the principles enunciated in that case to the facts of the present case, I find that there would have been no difficulty in applying Section 17 to the present case if the mortgagor had executed a single mortgage deed in favour of the mortgagee. But, there are three different mortgage deeds. By the first deed dated 23-3-48, nine houses in Lashkar (Gwalior) are mortgaged for a sum of Rupees three lakhs. By the second deed dated 13-4-48, the Shri Ram Seeta Ram. Oil and Dal Mill at Bhind (with Kothi Quarters, Godown, Room, well and machine) has been mortgaged for a sum of Rupees one lakh, and forty thousand. By the third deed dated 13-4-48, the Lakshmi Sugar and Oil Mill at Shivpuri (with Kothi, Quarters, Godown, Room, Well and Machinery etc.) was mortgaged for a sum of Rupees eighty-five thousand.

If the three mortgage deeds had been independent of one another, I would have had no difficulty in holding that Section 17 has no application and that according to Section 16 the mortgages on Bhind and Shivpuri properties could be enforced only in those Districts. But every mortgage deed in clear terms refers to other mortgage-deeds and in each is also found a preface which may be rendered into English thus:

We are proprietors of the firms Shri Ram Shubha Karan and Shri Ram Sita Ram and in these names we carry on our business at Lashkar, Bhind and Shivpuri. Owing to the rates of commodities having gone down we are feeling difficulty in carrying on our trade. In order to remove this difficulty, and in order to carry on our business with good name and with convenience we require money. We have, therefore, entered into a contract with Krishna Ram Baldeo Bank, Sarrafa, Lashkar, to raise a loan of Rs. 5,25,090/- by mortgaging all our immovable property (houses, and factories etc.) situated at Lashkar, Bhind and Shivpuri and have agreed to pay interest at the rate of seven annas per cent per month.

What does this preface indicate? This is a connecting link between the three deeds and signifies that the three mortgage-deeds, though separately written, were in fact part and parcel of a single mortgage contract entered into by the parties. The substance of the contract is the pledge of the whole property of the firms for the debt. The complexity given to the bargain between the parties by the execution of three documents cannot alter its true character, the precise legal description of which must be determined by the preface and by, reading all the three along with it as a single mortgage contract. The dominant intention of the parties as displayed by each of the deeds was clearly that the whole property situated at three places, Lashkar, Bhind and Shivpuri, should be regarded as a single entity. Under these circumstances, it can be held that Section 17, CPC applied to the facts of this case, and, only on this basis, the Gwalior Court can be deemed to have jurisdiction to try this suit.

Shri Kanhyalal then places reliance on certain observations of their Lordships of the Privy Council in- AIR 1932 172 (Privy Council) the relevance of which can be considered only by referring to the facts of the case. The suit in that case related to four properties: (1) Estate of Nawabganj in Oudh; (2) Rakhkhamba property in District Lahore; (3) Julians property in Tahsil Lahore and (4) Khalikabad property in the Punjab. On the death of Nawab Sir Fateh Ali Khan, his son asserted possession over the estates both in Oudh and in the Punjab but his title was challenged by the Plaintiff who claimed reversion to the whole estate under the will of the former holder Nawab Nasil Ali Khan.

The Plaintiff brought the suit before a single Judge (original jurisdiction) of the Oudh Chief Court, See - AIR 1928 67 (Oudh) at p. 69(N), and, at first, asked the Court to decide only the question of title to the Oudh property and prayed for permission to file a separate suit in the Punjab for the property situated there. This prayer was not accepted and the plaint was accordingly amended. The Plaintiff then framed his claim so as to include all the property in the Punjab. It transpired that by virtue of a deed of endowment dated 17-6-1892 the Khalikabad property was included in the Waqf. The Plaintiff, however, included this property also in his suit. The Defendant denied the jurisdiction of the Oudh Court as to the Waqf property but admitted the jurisdiction as to the rest of the property in the Punjab, the cause of action being substantially the same for all the property except that included in the Waqf. The learned Single Judge, however, held that he was empowered to decide Plaintiff''s claim to waqf property also and decreed the claim. The Defendant went in appeal before the Division Bench, see - Nisar Ali Khan v. Muhammad Ali Khan AIR 1S29 Oudh 494 (O). At page 514 of the judgment delivered by Stuart C.J., we read:

Sir Tej Bahadur Sapru on his (i.e. Defendants) behalf, while recognising that the Plaintiff had a right under the provisions of Section 17, CPC to ask for possession of the Punjab property other than the Khalikabad properly argued that the Court has no jurisdiction to declare the Plaintiff Mutawalli of the Khalikabad property as the Punjab Courts alone would have jurisdiction to decide that point. His case was that in so far as the Khalikabad property was concerned the suit was not to obtain relief in respect of property but to obtain a declaration of title as Mutawalli under the terms of Ex. 4 which this Court has no jurisdiction to grant.

The Division Bench decided the point in favour of the Defendant. When the case went to the Privy Council the same point was canvassed there. It was held by the Judicial Committee that the claim must fail as to Khalikabad property and that so far as this property was concerned Section 17 had no application. Lord Tomlin who delivered the judgment of the Board gave the reasoning at p. 177 of AIR 1932 172 (Privy Council) in the following words:

There remains the question of the Khalikabad estate. Here the Respondent cannot succeed unless lie shows that under the terms of the deed creating the Waqf he is the trustee. The question depends upon the construction of the deed. It is a separate and different cause of action from those which found the (sic) ings in respect of other three properties.

Their Lordships are unable to find (sic) justification for bringing the suit in res (sic) this property elsewhere than in the Co (sic) District where the property is situate justification cannot in their Lordships ment be found in Section 17, CPC upon the Respondent relied.

It will be seen from above that the (sic) observations quoted above and relied (sic) by Shri Kanhyalal have no material upon the facts of the case before me, yet fact that in that case the suit for posse (sic) Immovable properties in Punjab and Oudh, (sic) be tried at Lucknow u/s 17, CPC clearly goes against all the arguments ad (sic) to me by learned Counsel for the Petitioner.

I need only briefly refer to another (sic) Council case AIR 1930 188 (Privy Council) on wh (sic) Learned Court below has placed reliance. (sic) was an appeal from a judgment of (sic) the High Court reported in - Nilkanth Balvant Natu Vs. Shri Vidyashankar Bharati, . The (sic) was filed in the Court of First Class Sub (sic) Judge at Satara against the mortgagors or representatives in interest for recovery by (sic) or foreclosure of a sum of Rupees five lakhs (sic) interest charged upon certain immovable (sic) ties in Belgaum, Kolhapur, Sawantvadi, (sic) K wad and Satara. The mortgages were (sic) into between the years 1840 and 1844 and subject to the provisions of Regulation (sic) 1827. The various bonds entered into by (sic) Defendants'' predecessors were all in the form., and the debts due under all the no (sic) deeds were a charge upon all the properties was assumed by both sides that the mo (sic) were consolidated.

It transpired that the possession of pr (sic) in British territory was given up in 1860 (sic) steps were taken to recover possession un (sic) suit was filed in Satara Court. According (sic) High Court, the presumption was that Kolhapur properties only were considerd (sic) security for the debt. The claim for poss (sic) of properties in British India was therefore (sic) to be time-barred and a decree was given on (sic) footing that only the claim for possession (sic) properties in Kolhapur State was in time (sic) Lordships of the Judicial Committee this judgment and decree on the ground (sic) the words in Section 17 "within the jurisdl (sic) of different Courts" must mean within the (sic) diction of different Courts to which the Code (sic) plies i.e., Courts in British India and, the (sic) held that British India Courts had no tion (sic) to try the suit so far as it related (sic) mortgage properties situate in an Indian (sic) outside British India. Owing to the peculiar (sic) of this case, this ruling does not help (sic) party in the present case, unless, in an (sic) way, it can be inferred from the judgment (sic) if Kolhapur property had been in British (sic) Section 17 would have been held to be applicable (sic)

(14) I need not refer to other author (sic) the interpretation of Section 17, for, I am clear (sic) mind that the three mortgage-deeds in (sic) sent case must be taken as connected with (sic) another and as forming part of the same saction i.e. they were part of the mortgage (sic) " tract entered into by the parties, the found (sic) for which exists in the allegation conta (sic) para two of the plaint. I however feel.

(sic) safeguard myself from giving any (sic) that I have expressed any opinion on (sic) points whether the three mortgage-deeds are sue or were executed by Defendant No. 1 or (sic) there is any joint or joint family pro- (sic) which was mortgaged. These points will (sic) adjudicated upon only by the trial Court. My (sic) rests only upon the allegations in the (sic) and upon the recital in the three mort deeds filed along with the plaint, in this (sic) and on the basis of the mortgage contract, (sic) of opinion that the Court at Gwalior has (sic) to try the suit.

(sic) this view of the matter I dismiss the revision with costs.