Sibani Debi vs Lakshmi Narayan Shaw

B.N. Maitra J.

The plaintiff is the petitioner. He instituted the present suit for a declaration that the compromise decree passed in title appeal no. 361 of 1978 by the Fourth Additional District Judge''s Court at Alipore was not binding on her, for a permanent injunction to restrain defendants nos. 1 to 3 from executing the decree and from interfering with her possession in the disputed property. An objection was raised. Tie learned Munsif framed issue no. 5 whether the Court had territorial Jurisdiction to try the suit. Issue no. 6 was framed on the point whether the suit had been properly valued and the further question was whether the plaint was liable to be rejected under order 7 rule 11 of the Code of Civil Procedure, The learned Munsif upheld the defendants'' objection and stated that none of the clauses to section 16 of the CPC was attracted because section 20 was subject to that section 16 of the Code. No part of the cause of action arose within the jurisdiction of that Court. The court had no territorial jurisdiction to try the suit. The application filed by the defendants under order 7 rule 11 of the CPC for rejection of the plaint was not allowed. The order was that the plaint, be returned to the filing lawyer for presentation to the proper court. The order gave rise to the present revisional application.

It has been contended on behalf of the plaintiff petitioner that it is true that section 20 of the CPC is subject to the provisions of section 16 of the Code. The proviso to section 16 of the Code says that where the relief sought can be obtained through the defendants'' personal obedience, the suit can 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. Reference has been made to the case of S.K. Jwala and Another Vs. Lama Helem Ian Haong Lee and Others, at page 248 to show that the word "defendant" appearing in the proviso to section 16 of the Code means all the defendants where there are more than one defendat. The Court below, failed to consider the provisions of clause (b) of section 20 of the Code. That section contain: three clauses, all of which are disjunctive and not conjunctive. Clause (6) thereof clearly says that the suit may be instituted in a court within the local limits of whose jurisdiction any of the defendants, at the time of the filing of the suit actually and voluntarily resides or carries on business or personally works for gain. In the para S of the plaint there is an averment that defendants nos.1 and 2 reside within the jurisdiction of the court and that is sufficient to confer jurisdiction on the Court to try the suit. An erroneous order was passed.

The learned Advocate appearing on behalf of the opposite party has stated that the requirements of the proviso to clause (b) of section 20 of the Code have not been complied with and hence, a correct order was passed for return of the plaint.

Section 20(b) of the Code saya that subject to the limitations aforesaid, a suit Is to be instituted in a court within whose jurisdiction any of the defendants actually and voluntarily resides or carries on business or personally works for gain at the time when the suit is Instituted. There is an important proviso, which says that in such case either the leave of the court has to be given or the defendants who do not reside or carry on business or personally work for gain, as aforesaid, acquiesce in such institution. This proviso has not been complied with because there is no averment in the plaint that defendant no. 3, who does not live within the jurisdiction of the court, did acquiesce In the filling of the suit or the leave of the court was obtained. Hence due to such lacuna in the plaint, the plaintiff shall take upon her-self the consequences. The main averment made on behalf of the petitioner for the purpose of jurisdiction of the court is clause (b) of section 20 of the Code. But it has already been stated that the proviso stands as a bar to the acceptance of the plaint by the court concerned. It is, therefore, held that there is no jurisdictional error or material irregularity committed by the court below. The submissions made on behalf of the petitioner cannot be accepted. The Rule is, therefore discharged without costs. The plaint be returned to the filing lawyer.