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Mrs. Rosy Joseph and ors. Vs. Union Bank of India, Ernakulam Branch - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 3356 of 1976-I
Judge
Reported inAIR1978Ker209
ActsCode of Civil Procedure (CPC) , 1908 - Sections 16 to 19 and 20
AppellantMrs. Rosy Joseph and ors.
RespondentUnion Bank of India, Ernakulam Branch
Appellant Advocate M.K. Narayana Menon,; D.S. Warrier and; C.D. Jose, A
Respondent Advocate T.L. Ananthasivan,; P.K. Jose,; P.J. Johny and;
DispositionRevision allowed
Cases ReferredNarayana Pillai v. Gopala Pillai
Excerpt:
- - this proposition is well founded and well established......defendants that the sub court, quilon had no jurisdiction to entertain the suit. the subordinate judge, quilon overruled the said contentions of the defendants and held that his court had jurisdiction. the matter was thereupon carried up to this court by the 2nd defendant by filing a civil revision petition. raghavan c.j. dismissed the civil revision petition upholding the view taken by the lower court that the sub court, quilon had jurisdiction to entertain the suit. the reasoning on which the learned judge came to tjhe said conclusion is contained in the following passage extracted from page 414 of the report (1973 ker lt 413)) (at p. 27 of air):'there are three defendants in this suit; and it cannot be disputed that the suit against the first defendant was properly laid in the court.....
Judgment:

Balakrishna Eradi, J.

1. Thiscivil revision petition has been referred to a Division Bench by Kochu Thorn-men J. as it was felt by the learned Judge that the dicision in Narayan Pillai v. Gopala Pillai (1973 KLT 413) : (AIR 1974 Ker 27) requires reconsideration.

2. The revision petitioners are defendants 1 to 3 in 0. S. No. 222 of 1975 on the file of the First Additional Subordinate Judge, Ernakulam. That is a suit filed by the 1st respondent-Union Bank of India for recovery of a sum of Rupees 28,153.75 with interest by sale of the plaint A schedule immovable properties on the basis of a transaction of mortgage by deposit of title deeds. In the written statement filed by the defendants they contended inter alia that the properties covered by the mortgage sought to be enforced in the suit being situated within the local limits of the jurisdiction of the Subordinate Judge's Court, Cochin, thesuit ought to have been filed only in that court under Section 16 of the Civil P. C. and that the Sub Court, Ernakulam, had no jurisdiction to entertain the suit. The said question relating to the jurisdiction of the court was considered as a preliminary point, by the Subordinate Judge and by the order now sought to be revised, it was held that the Sub Court, Ernakulam, where the suit was instituted had jurisdiction to entertain the suit. In coming to the conclusion the Subordinate Judge has relied solely on the decision of a learned Single Judge of this Court reported in Narayana Pillai v. Gopala Pillai (1973 Ker LT 413) : (AIR 1974 Ker 27). In that case a subscriber in a chitty had filed the suit against the stake-holder and another person and even though it is stated in the judgment that some properties had been given as security by the stake-holder, it is not clear from the judgment whether the suit was one for enforcement of the said security by sale of any immovable properties. However, from the nature of the contentions advanced in the case, it would appear that such a relief must also have been claimed by the plaintiff in that suit. The properties given as security were situated within the jurisdiction of the Subordinate Judge's Court, Mavelikara, but the suit was filed in Quilon. A preliminary objection was raised by the defendants that the Sub Court, Quilon had no jurisdiction to entertain the suit. The Subordinate Judge, Quilon overruled the said contentions of the defendants and held that his court had jurisdiction. The matter was thereupon carried up to this court by the 2nd defendant by filing a civil revision petition. Raghavan C.J. dismissed the civil revision petition upholding the view taken by the lower court that the Sub Court, Quilon had jurisdiction to entertain the suit. The reasoning on which the learned Judge came to tJhe said conclusion is contained in the following passage extracted from page 414 of the report (1973 Ker LT 413)) (at p. 27 of AIR):

'There are three defendants In this suit; and it cannot be disputed that the suit against the first defendant was properly laid in the court at Quilon. The contract was with the first defendant: that was at Quilon: the breach of that contract was also at Quilon. If so, for the sake of argument, even if it is accepted that the Mavelikara Court had also jurisdiction since the properties given as security were at Mavelikara, still thejurisdiction of the Quilon Court is not taken away. In such a case where there are two courts which have jurisdiction, the plaintiff has the right to choose the court in which he should institute his suit: the defendant cannot insist on the choice of the forum. This proposition is well founded and well established. In this view of the matter also, the suit was properly instituted in the Quilon Court.'

3. It is contended before us by the learned Advocate appearing for the revision petitioner that in a suit for enforcement of a mortgage by sale of an immovable property, there is no choice given to the plaintiff under the provisions of the Civil P. C. as to the forum in which the action has to be instituted. Counsel urged that such a suit is governed by the provision contained in Clause (c) of Section 16 and that under the said clause it is explicit and mandatory that the suit shall be instituted onlv in the court within the local limits of whose jurisdiction the immovable property forming subject-matter of the mortgage is situate, the only exception made being in respect of cases covered by the proviso to the said section. That proviso covers only suits to obtain compensation for wrong to immovable property or other relief in respect of immovable property where the relief sought can be entirely obtained through the personal obedience of the defendant. The present suit is obviously not one falling within the scope of the proviso. The provision contained in Section 20 permitting suits to be instituted in courts within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business etc. or where the cause of action, wholly or in part, arises, is expressly stated to be subject to the limitations laid down in Ss. 16 to 19. Hence in a case which is directly governed by Section 16(c), Section 20 cannot be called in aid and it is not permissible for the plaintiff to institute the suit in any court other than the one within the local limits of whose jurisdiction the mortgage properties are situate. The decision in Narayana Pillai v. Gopala Pillai (1973 Ker LT 413) : (AIR 1974 Ker 27) in so far as it has taken a view inconsistent with the legal position as explained above cannot be regarded as laying down the correct law.

4. On an application of the aforesaid principles it must follow that the court below was wrong in holding that it had jurisdiction to entertain the present suitThe only proper court where the suit can be instituted under Section 16(c) of the Civil P. C. is the Subordinate Judge's Court, Cochin, within the local limits of whose jurisdiction the plaint A schedule properties which form the subject-matter of the mortgage are admittedly situate. The order of the court below is accordingly set aside and there will be a direction to the lower court to return the plaint forthwith to the plaintiff for presentation to the proper court.

5. Having regard to the fact that the suit was instituted early in 1975, it is necessary that after its presentation into the Subordinate Judge's Court, Cochin it should be given an expeditious disposal by that court. There will accordingly be a direction that after the plaint is presented into the Sub Court, Cochin and the suit is registered there the Subordinate Judge, Cochin, should give the suit precedence in the matter of trial and should finally dispose of the same within a period not exceeding six months from the date of its presentation into that court.

6. The C. R. P. is allowed as above. The parties will bear their respective costs.


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