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Mahadeo Govind Suktankar Vs. Ramchandra Govind Suktankar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 70 of 1920
Judge
Reported in(1921)23BOMLR903
AppellantMahadeo Govind Suktankar
RespondentRamchandra Govind Suktankar
Excerpt:
civil procedure code (act v of 1908), section 16(e)-suit for mesne profits-suit in british indian court -land situated outside british india.;a british indian court can entertain suit to recover mesne profits of lands situated outside british india, against a defendant residing within its jurisdiction.;the proviso to section 16 of the civil prooodure code 1908 makes it clear thab even although a wrong t j immoveable property is alleged, yet where the relief sought oan be entirely obtained through the defendant's personal obedience, then the suit can be instituted either in the court within the looal limits of whose jurisdiction the property is situate, or in the courl within the looal limits of whose jurisdiction the defendant aafbually and voluntarily resides, or oarries on business, or..........favour with, the learned assistant judge and also with the district judge.2. now in the case of land outside british india section 16 has no application and have to fall back upon general principles in considering whether this is a suit in which a personal relief is claimed against a defendant residing within the jurisdiction of the court.3. first, it may be as well to clear the ground by disposing of certain contentions which were raised in the course of the argument as to the proper scope of section 16 of the civil procedure code, sub-section (e) and the proviso to the section. sub-section (e) excludes from the jurisdiction of the courts, outside whose local limits the property is situate, suits for compensation for wrong to such immoveable property; and the word 'wrong' refers to.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff filed this suit in the Court of the Assistant Judge at Belgaum to recover mesne profits of certain land for the years 1915-16 and 1916-17. It is admitted that the land is situated in the Kurundwad State outside British India, and that the plaintiff bases his claim to mesae profits on ' the fact that he became entitled to such land by an award decree in 1916 and did not get possession of the lands until 1917. The defendants contended that as the suit came under Section 16(e) of the Civil Procedure Code, the Court had no jurisdiction. This contention found favour with, the learned Assistant Judge and also with the District Judge.

2. Now in the case of land outside British India Section 16 has no application and have to fall back upon general principles in considering whether this is a suit in which a personal relief is claimed against a defendant residing within the jurisdiction of the Court.

3. First, it may be as well to clear the ground by disposing of certain contentions which were raised in the course of the argument as to the proper scope of Section 16 of the Civil Procedure Code, Sub-section (e) and the proviso to the section. Sub-section (e) excludes from the jurisdiction of the Courts, outside whose local limits the property is situate, suits for compensation for wrong to such immoveable property; and the word 'wrong' refers to torts affecting immoveable property such as trespass, nuisance, infringements of easements etc. The proviso makes it clear that even although a wrong to immoveable property is alleged, yet where the relief sought can be entirely obtained through the defendant's personal obedience, then 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, So that assuming for the moment that the suit was one for mesne profits relating to land in British India, and the land had been outside the local limits of the jurisdiction of the Court at Belgaum, still if the decree, the decree directed something to be done which could be done through the personal obedience of the if defendant, such as the payment of money, then the Belgaum of Court would have jurisdiction to entertain the suit.

4. It is admitted that the provisions of Section 16 of the Civil Prcedure Code are an embodiment of the provisions of the law of England on this subject. But it seems to have been suggested that the proviso enacted something different. In our opinion there is no reason for thinking that the whole section does not follow the English law with regard to jurisdiction in the case of suits of the nature described in Section 16, and we see no reason to think that under the English law this suit would not lie in the Bolgaum Court.

5. Fortunately the decision of (Sir Lawrence Jenkins in Kaahinath v. Anant I.L.R (1899) Bom. 407: 2 Bom. L.R. 47. is directly in point, and from that decision it is order that the principles enunciated by the English Courts of Equity apply to this case. The facts of that cage were somewhat similar to these. The plaintiff sued in the Court at Naaik in British India to establish his right to a share in the income derived from certain grants of land situate outside of British India, but received by the defendant within the jurisdiction of the Nasik Court; it was held that the suit was within the jurisdiction of the Court, there being no dispute title. Sir Lawrence Jenkins said :

The lower appellate Court seems to have thought that all property which had a foreign origin was outside the jurisdiction of the Court: this, however, is not a correct view of the law. The general principle is dearly at tied by Lord Cottenham in Ex part Pollard (1840) Mont. & Chit. 239 where he says : ' If indeed the law of the country where the land is situate should not permit or not enable the defendant to do what the Court might otherwise think it right to decree, it would be useless and unjust to direct him to do the act; but when there is no such impediment the Courts of the country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules, and are not influenced by any consideration of what the effect of such contracts might be in the country where the lands are situate, or of the manner in which the Courts of such countries might deal with such equities.

6. It is not suggested that the law prevailing in Kurundwad State would not permit of the defendant being directed to pay the mesne profits of the land to the plaintiff to whom the lands belong. There appears to be an equity in favour of the plaintiff that the profits of those lands which were awarded to him in 1915 should not remain in the pockets of the defendant, and, therefore, there is no reason why the Belgaum Court should not have jurisdiction to administer that equity in favour of the plaintiff. We are not concerned here with the merits of the case. We think that the Court in Belgaum had jurisdiction to decide whether, on the facts that were placed before it, mesne profits of those properties should be ordered to be paid by the defendants to the plaintiff. The Rule, therefore, must be made absolute. The case must go back to the Court of the Assistant Judge to be dealt with on the merits. The plaintiff will be entitled to his costs in this Court and the Court below. Costs in the trial Court will be costs in the cause.


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