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State of Bank of India Vs. O.P. Gupta and Others - Court Judgment

LegalCrystal Citation
Subject Company
CourtDelhi High Court
Decided On
Case NumberF.A.C. (OS) No. 41 of 1979
Judge
Reported inAIR1983Delhi214; [1984]56CompCas404(Delhi)
ActsCode of Civil Procedure (CPC), 1908 - Sections 16, 17, 20 and 129
AppellantState of Bank of India
RespondentO.P. Gupta and Others
Cases ReferredUnion of India v. Biasdev
Excerpt:
.....and madras - it was held that since the property was not situated within jurisdiction of the delhi high court but was situated at mathura, the delhi high court had no jurisdiction to entertain present suit. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for..........such suits is not set out either in the letters patent or in any other law. in the case of the delhi high court, the original jurisdiction was granted to the court by the delhi high court act, 1966. the only provision relating to the scope of the same is provided by s. 5(2) of the act which states : 'notwithstanding anything contained in any law for the time being in force, the high court of delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds rupees one lakh.' 8. the sum of rs. 1,00,000 was originally rs. 25,000 which was raised to rs. 50,000 and then to rs. 1,00,000. at the time this suit was being tried the value was rs. 50,000. this section does not grant the delhi high court any further.....
Judgment:

D.K. Kapur, J.

1. The State Bank of India filed a suit for the recovery of Rs. 52,357.51 based on cash credit facilities granted to the defendants-respondents. The said defendants had also deposited the title deeds in respect of house property No. 87, Dholi Piao, Mathura, allegedly for the purpose of furnishing a guarantees as collateral security for the advance. This suit was decided on the original side of this court.

2. Following the Division Bench decision of this court in Suit No. 51 of 1968, State Bank of India v. Himalayan Exporters, decided on November 20, 1970, it was held by the learned single judge that this court had no jurisdiction to entertain the suit.

3. The plaintiff has appealed and the learned has pressed that this matter should be placed before a larger Bench for re-considering the decision of the Division Bench aforementioned. We have carefully considered the contention and we find no reason to differ from the judgment of the said Division Bench.

4. It is not necessary to set out the point at any great length because the said judgment has fully analysed the conclusion. However, as brought to our notice by the learned counsel for the appellant, the said judgment is not reported and so it is necessary, in our view, to set out the point in short so that the view of this court mat be fully know as far as the jurisdiction question is concerned.

5. Section 120 of the CPC is in the following terms :

'120. Provisions not applicable to High Court in original civil jurisdiction. - (1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20.'

6. It so happens that s. 16 is the provision which indicates the jurisdiction for dealing with suits relating to immovable property. It is stated therein that all suits for foreclosure, sale or redemption in the case of a mortgage of or a charge upon immovable property shall be instituted in the court within the local limits of whose jurisdiction the property is situated. It the section applies, the suit has to be filed at Mathura and nowhere else.

7. In the Chartered High Courts, which were granted the original side jurisdiction by the Letters Patent which created them, there is a special clause indicating the limits of the original side jurisdiction. That clause is clause 12. In other High Courts which were not created by the Letters Patent, or where the Letters Patent did not give to the court original side jurisdiction, the jurisdiction of the court to entertain such suits is not set out either in the Letters Patent or in any other law. In the case of the Delhi High Court, the original jurisdiction was granted to the court by the Delhi High Court Act, 1966. The only provision relating to the scope of the same is provided by s. 5(2) of the Act which states :

'Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds rupees one lakh.'

8. The sum of Rs. 1,00,000 was originally Rs. 25,000 which was raised to Rs. 50,000 and then to Rs. 1,00,000. At the time this suit was being tried the value was Rs. 50,000. This section does not grant the Delhi High Court any further jurisdiction than that which is set out in the CPC. If we hold that ss. 16, 17 and 20 of the Code do not apply to the High Court, then we have no alternative provisions to fall back upon. In the case of the Chartered High Court, and it may be in the case of other High Courts which are created by statute, the limits of the jurisdiction may be varied from those set out in ss. 16, 17 and 20 of the CPC. In such a case, there will be an inconsistency between the provisions of the Code and those of the letters patent or any other law creating that High Court. For this reason, the provisions of S. 120 have been enacted to state that the said ss. 16, 17 and 20 would not apply to the original side of the High Court.

9. However, if there is no other provision, then sections have to apply because, otherwise, the court will find itself with no ascertainable method for determining its original jurisdiction.

10. There were several decisions of this court even prior to State Bank of India v. Himalayan Exporters, decided by the Division Bench on November 20, 1970, which took the view that as no provision corresponding to clause 12 of the Chartered High Courts had been made in respect of the Delhi High Court and there was no provision in the Delhi High Court Act, 1966, regarding the scope of the original jurisdiction, ss. 16, 17 and 20 of the Code had to be applied to the court.

11. It was held by B. C. Misra J. in Union of India v. Biasdev, Suit No. 377 of 1967, decided on October 19, 1970, that the principles of ss. 16, 17 and 20 had to be applied. In other cases it was taken for granted that these sections had to apply, otherwise, the court would be unable to find when it had jurisdiction and when it had not. Subsequently, any number of suits have been decided in this court on the footing that s. 20 particularly does apply as, otherwise, the jurisdiction of this court could not be ascertained.

12. Moreover, the Original Side Rules have specifically provided that wherever the rules are silent, the CPC will apply. The provisions of s. 129 of the Code state as follows :

'129. Power of High Courts to make rules as to their original civil procedure. - Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the Letters Patent or order other law establishing it to regular its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'

13. This provision enables the High Court to make rules relating to make rules relating to original side proceedings. Assuming that the learned counsel is right in contending that ss. 16, 17 and 20 do not apply and there is no other provision relating to the jurisdiction of the court on the original side, then it will be open for the High Court to make rules relating to the scope of that jurisdiction. The High Court has made a rule. It has stated that wherever the rules are silent, the provisions of the CPC will apply. Rule 19, Ch. I, of the Delhi High Court (Original Side) Rules is in the following terms :

'19. Miscellaneous. - Except to the extent otherwise provided in these rules, the provisions of the Civil Procedure Code shall apply to all proceedings on original side.'

14. Thus, as there is nothing in the rules relating to the jurisdiction of the High Court on the original side and there is nothing in the provisions of the Letters Patent or the Delhi High Court Act, the provisions of ss. 16, 17 and 20 of the Code would apply by the application of the Original Side Rules.

15. In the circumstances, we would follow the aforementioned judgment of the Division Bench and hold that the learned single judge was right in coming to the conclusion that this court had no jurisdiction and the plaint was rightly directed to be returned to the plaintiff. The appeal is accordingly dismissed, but we make no order as to costs.


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