Puliokal Estates (1947) Ltd. vs K.M. Joseph

Balakrishna Ayyar, J.—The first defendant is the petitioner. In 1926, the Mannarghat Moopil Nair granted a lease of a very consider able

extent of land in his estate in favour of two persons, Jacob Thomas and Tommy Joseph. They, in their turn, assigned their rights to the fourth

defendant, a company called the Charel Rubber Company Ltd. The first defendant, a private limited company called the Pulickel Estates (1947)

Ltd., obtained an assignment of the leasehold from the Charel Rubber Company Ltd. On 8th September 1952, the first defendant company

entered into an agreement to convey its rights in the properties to the plaintiff for a sum of Rs. 58000. An advance of Rs. 13000 was paid, and it

was agreed between the parties that the balance would be paid at the time the sale deed was executed. It was also agreed between the parties that

the purchase shall be completed on or before the 4th October 1952, at Madras, where, for the convenience of the vendor, the purchaser agrees

to have the deed registered."" Under the Madras Prevention of Private Forests Act, the consent of the Collector of Malabar had to be obtained

before the sale could take effect. With a view to obtaining the consent of the officer, the vendor gave to the vendees one letter addressed to the

Collector of Malabar and another addressed to the Tahsildar of Perinthalmanna. By an order dated 29th October 1952, the Collector refused to

give his permission for the sale. Subsequently, the plaintiff filed a suit in the Court of the Subordinate Judge of Ottapalam, claiming Rs. 28,000 as

damages from defendant: 1 to 3. There was also a prayer for the creation of a charge in favour of the plaintiff over the leasehold properties.

Defendants 1 to 3 filed written statements taking inter alia the point that the Court at Ottapalam had no jurisdiction in the matter. The learned Sub

Judge framed a preliminary issue on that point and held that he had jurisdiction to proceed with the suit. The present petition has been filed to

revise this order of the learned Subordinate Judge. It will be noticed that though the property is situate in Malabar, the agreement to sell was

entered into in Madras. The parties also explicitly covenanted that the sale deed was to be executed in Madras. Since the agreement to sell

provides that payment was to be made at the time of the execution of the sale deed, it follows that the balance of the purchase money was also to

be paid in Madras. It is clear, therefore, that the breach of contract was in Madras. Normally, therefore, the action should have been brought in

Madras. But the learned Subordinate Judge thought that the circumstance that the plaintiff claimed a charge over the leasehold properties, which

lay in his jurisdiction, brought the action within the scope of S. 16 of the CPC and conferred jurisdiction on him in respect of the matter. This is

how he stated his view :

Here the plaintiff has claimed a charge for the plaint claim over the immoveable properties mentioned in the plaint schedule. Admittedly, they are

situate within the jurisdiction of this Court. Therefore this is the only Court which can entertain the suit. Suppose it is filed in Madras. The plaintiff

cannot expect any relief in respect of immoveable properties mentioned in the plaint. He can get only a personal decree against the defendants.

It appears to me that this is not the correct view of the matter. As I have already pointed out, the contract was entered into in Madras; its

completion was to be in Madras and the breach of it was in Madras. The circumstance that the plaintiff prayed for a charge on the property and

that it is situate within the jurisdiction of the Ottapalam Court will not give that Court jurisdiction. If a prayer made in the plaint is to be the

governing criterion, then it is easy to see that a plaintiff can by-pass all the provisions of the CPC for determining the proper forum, and can choose

his own Court. Suppose A were to enter into a contract with B for the supply of, let us say, groundnut oil, in Madras. A fails to deliver the oil, But

he has immoveable property in Travancore, Mysore and Assam. Can B merely by asking for a charge on some of these pre parties confer

jurisdiction on the Courts either in Travancore, or Mysore, or Assam? I conceive not.

The present action is not for the recovery of immoveable property. Cl. (a) of S. 16, therefore, does not apply. It is not a suit for partition of

immoveable property; Cl. (b) does not apply either. It is not a suit for foreclosure, sale or redemption in the case of a mortgage of or charge upon

immoveable property. Cl. (c) cannot therefore apply. Though the contract relates to immoveable property, the suit cannot be properly described

as one for compensation for wrong to immoveable property, there has been no wrong to immoveable property at all and Cl. (e) too cannot apply.

But it was said that the case falls within the scope of Cl. (d) which runs as follows :

for the determination of any other right to or interest in immoveable property.

Now, at the moment he filed the suit, the plaintiff had no right, or interest in the property. In his plaint he did not ask that any right or interest of

his in the property should be determined. His claim was a claim for money; when he prayed for a charge he was anticipating the decree and

execution proceedings; he was trying to ensure in advance that he would be able to realise the fruits of a decree which he hoped to obtain. Though

the disputes between the parties stemmed out of immoveable property, the Court was not called upon to determine any right or interest in

immoveable property. Court does not, therefore apply either, Clearly therefore S. 16 has no application to the case.

But it was said that the proviso applies to the case; that proviso, so far as is now material, runs as follows :

Provided that a suit to obtain relief respecting immoveable property held by or on behalf of the defendant may, where the relief sought can be

entirely obtained through his personal obedience, he 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....

On this argument certain observations may be made. One is that a proviso cannot be used to enlarge the scope of the principal section. A

proviso, from its very nature only engrafts an exception or limitation to the main clauses. In the present case, what the proviso does is this: out of

the categories of cases provided for in the principal section, it picks out certain categories and provides that in respect of them a suit can be filed

where the defendant resides. But those categories are limited to instances where the relief asked for can be entirely obtained by compelling the

personal obedience of the defendant. To put the matter in another form, Cls. (a) to (f) of S. 16 take in six categories of cases. Out of those

categories, the proviso picks out cases or groups of cases in relation to which the plaintiff can be given complete relief by compelling the personal

obedience of the defendant. The proviso, therefore, has not the effect of enlarging the scope of the principal section.

Learned Counsel for the respondent referred to certain decisions and these I shall now examine. Of these the earliest is reported in Maturi

Subbayya v. Kota Krishnayya 28 Mad. 227. This does not apply at all, for it related to unpaid purchase money under a contract for sale of land.

The head note makes the matter clear :

A suit for the recovery of unpaid purchase money under a contract for the sale of land is a suit for the determination of any right to or interest in

immoveable property within the meaning of S. 16, Cl. (d) of the Code of Civil Procedure.

See also S. 55 (4) (b) of the Transfer of Property Act.

The next case is reported in Sita Bai v. Laxmi Bai 40 Bom. 337. The facts there were as follows: The plaintiff filed a suit in a Poona Court

against her deceased son''s daughter and her father, both of whom resided in a Native State beyond the jurisdiction of the Poona Court. She

prayed for a declaration that she was entitled to a maintenance allowance and sought to make the same a charge on the immoveable property of

her deceased son. This property lay within the jurisdiction of the Poona Court. The Poona Court held that it had no jurisdiction to try the suit, as

the claim for maintenance was not one for the determination of any right to or interest in the immoveable property, as required by Cl. (d) of S. 16

C.P.C. The plaintiff then went in appeal to the High Court of Bombay, which held that the Poona Court had jurisdiction in the matter. In so far as

this decision implies, that by merely asking for a relief in respect of immoveable property, a plaintiff can confer jurisdiction on a particular Court,

one may hesitate to agree. A learned Judge of this Court in Veeraraghavamma v. Sitaramayya 42 L.W. 647.

It was my impression at first and I still entertain a doubt that that (sub-clause in S. 16) is concerned with disputes as to title or interest in property

existing at the date of the suit and does not apply to interests that spring out of ancillary reliefs claimed in the suit and arising as a consequence of

the decree made in the suit.

With the doubt expressed here I am in full agreement. But the decision in Sita Bai v. Laxmi Bai 42 L.W. 647, if I may say so with respect, is

undoubtedly right. The defendants in that case were under no personal obligation to pay any maintenance to the plaintiff. Her son had died leaving

certain property; that property lay within the jurisdiction of the Poona Court; out of that property the plaintiff was entitled to maintenance. It is

because the defendants were in possession of that property that they were proceeded against. The right to receive maintenance out of immoveable

property may, without imposing undue strain on language, be described as an interest in immoveable property. See S. 39 of the Transfer of

Property Act which runs :

Where a third person has a right to receive maintenance..... from the profits of immoveable property, and such property is transferred, the right

may be enforced against the transferee, if he has notice thereof.....

The last case I need examine is Mt. Gauhar J Begum v. Mt. Imteyaz J Begum 26 Pat. 523. The facts there were as follows: G, a widow,

brought a suit for recovery of her dower debt and also for the administration of her deceased husband''s estate in the Court within whose

jurisdiction only a fractional portion of the properties was situate. The suit was treated as an administration suit, but the plaint was returned on the

ground that S. 20 C.P.C. was a bar. In appeal by the plaintiff, a Bench of the Patna High Court held that S. 16(d) and not S. 20 of the CPC was

applicable, and, therefore, that the Court had territorial jurisdiction over the case. At page 525, the learned Judges said :

This mention of the word ''charge'' in relief No. 2 brings the case within the purview of Cl. (d) of S. 16 C.P.C.

Some of the observations I have made in relation to Sita Bai V. Laxmi Bai 40.Bom. 937 apply here also. But this decision too was, on the

facts, undoubtedly correct, because part of the property to be administered lay in the jurisdiction of the Court of which the plaint was presented.

One further remark is called for. It is reasonably plain in the present case, that the plaintiffs were conscious that they could not get a charge

over the property, because, in paragraph 10 of the plaint, they stated that the vendor had no title to the property. The relevant passage runs :

The plaintiff has come to know that the document dated 17.01.1947, executed by the Charel Rubber Co Ltd., in favour of the first defendant

company, had been executed without obtaining the necessary permission from the Collector of Malabar under the M.P.P.F. Act and therefore

void. The absence of title to the first defendant company in the plaint schedule property was known to the first defendant company and defendants

2 and 3 and was deliberately kept back from the plaintiff with the sinister purpose of getting from the plaintiff illegally large sums of money for no

valid consideration.

If the defendants had no interest in the property obviously no Court would create a charge over it in respect of amounts decreed against them. As I

have said before I am clear in my mind that when the cause of action really arose elsewhere a plaintiff by merely adding a prayer for a charge on

certain immoveable properties cannot confer jurisdiction on the Court within whose jurisdiction those properties lie.

Learned Counsel for the respondent finally stated that the fifth defendant resides within the jurisdiction of the Ottapalam Court and that,

therefore, that Court acquired jurisdiction by virtue of Sub-Cl. (b) of S. 20, C.P.C. Now, before the respondent can obtain the benefit of this sub-

clause of S. 20 one of the two requirements must be fulfilled; either he must obtain the leave of the Court or the other defendants must acquiesce in

the institution of the suit in Ottapalam. That they have not acquiesced is clear from the fact that they took objection to the jurisdiction of the lower

Court in their written statements and also by their coming to this Court challenging the correctness of the decision of the learned Subordinate judge.

The consent of the Subordinate Judge has yet to be obtained. The only course that is open to the plaintiff if he wants to prosecute the suit in the

Ottapalam Court is to apply for the leave of that Court. On the question whether that leave should or should not be given I express no opinion

whatsoever. That will be a matter for the learned Subordinate Judge to decide in his discretion and after hearing the parties affected. The petition is

allowed with costs. Advocate''s fee, Rs. 250.