David Annoussamy, J.
1. This is an order of reference from a learned single Judge of this Court on - the point of jurisdiction.
2. The suit is one on equitable mortgage by the deposit of title deeds for sale of the immovable property situated in Ooty, outside the territorial jurisdiction of this Court. The mortgage by deposit of title d was created at Madras and all the defendants reside in Madras. It was contended by, the defendants that this Court had no jurisdiction to entertain the suit. The plaintiff retorted that a suit on mortgage for sale of the mortgage property was not a suit for land and that, therefore, was within the jurisdiction of this Court.
3. The controversy between the parties, therefore, turned on the point whether a suit on mortgage for sale of the mortgaged property was one for land or not. The learned single Judge after reviewing the position of law on this question found that he could not agree with the view taken recently by another single Judge, in the State Industries Promotion Corporation of Tamil Nadu Ltd. v. Arvind Distillery and Chemicals Ltd., : AIR1982Mad273 . Consequently, he passed an order referring the above question to a larger Bench.
4. In the course of arguments on the above point the fact that all the defendants are residing within the territorial jurisdiction of this Court was highlighted. If such is the case, the question whether a suit on mortgage for sale of the mortgaged property is a suit for land or not may not arise at all in this case. It is to this aspect of the question that we shall advert now. The original jurisdiction of this Court in civil matters is indicated in Cl. 12 of the Letters Patent, 1865. That clause reads as follows: -
'And we do further ordain that the said High Court of Judicature at Fort William in Bengal in the exercise of its ordinary original civil jurisdiction shall be empowered to receive, try and determine suits of every description, if, in the case of suits for land or other immovable property, such land or property shall be situated, or in all other cases, if the cause of action shall have arisin either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell or
(contd. on col. 2)
1. If, in the case of suits for land or other immovable property such land or property shall be situated
2. Or, in all other cases, if the cause of action shall have arisen
3. Or, if the defendant at the time of commencement of the suit shall dwell or carve on business. or personally work for gain
Grammatically, this is the only reading possible in view of the respective places in the sentence of the phrases 'within the local limits of the ordinary original jurisdiction of the said High Court' and 'within such limits'. Any other reading would be illogical. The resulting position is that this Court has jurisdiction when the defendant resides within the local limits, wherever the property may be situated.
5. It is seen that in the first two parts. the jurisdiction is determined with reference to the subject-matter. Where as in the third part the jurisdictions is indicated with reference to the parties to the suit independently from the first two parts. So, the expression in all other cases' found in the sentence does not take within its ambit the case when the defendants reside within the territorial jurisdiction of this Court. It has application only when the third clause is not pressed into service. This Cl. 12 of the Letters Patent. 1865. makes an exception to the universal principal of granting jurisdiction in respect of immovable property to the Court within the jurisdiction of which the immovable property is situate. The rule of forum loci has been deliberately omitted in respect. of the High Court. This has been confirmed by the provisions of S. 120 of the Civil carry on business or personally works for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Madras, in which the debt or mortgage, or value of the property sued for does not exceed one hundred rupees.'
In order to understand quickly and easily, this clause which is somewhat clumsily drafted, the relevant portion of the clauses may be re-written as follows: -
either wholly, or, in case the leave of the Court shall have been first obtained, in part
within such limits within. the local limits of the ordinary original jurisdiction of the said High Court.
P. C. stating that the provisions of Ss. 16. 17 and 20 shall not apply to the High Court in the exercise of its original civil jurisdiction.
6. No previous decision of this Court or of another chartered High Court was produced before us in respect of this question. The only judgment which was brought to our notice is one in Seshagiri Rao v. Rama Rao. ILR (1896) Mad 448 wherein though the defendants are said to reside in Madras the
question of jurisdiction was not at all considered from that angle. But we are comforted in our view after the perusal of Cl. 12 of the Letters Patent. 1862. which is quite different from Cl. 12 of the Letters Patent, 1865. and which runs thus:-
'And we do further ordain that the said High Court of Judicature at Madras. in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive. try, and determine suits of every description. if, in the case of suits for land or other immovable property such land or property shall be situated. or in all other Case , s it the cause of action shall have arisen, or the defendant at the time of Commencement of the suit shall dwell. Or Carry on business. or personally work for vain. With in the local limits of the ordinary original jurisdiction of the said High Court, except that it shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Madras, in which the debt or damage. or value of the property sued for does not exceed one hundred rupees.'
The way in which this clause was drafted especially the fact that the phrase within the local limits of the ordinary original jurisdiction of the said High Court. is found only once at the end of the sentence shows clearly that as per this clause there was on one side suits for land and on another side all other suits including those in which the defendants reside within the territorial jurisdiction. In this clause, the phrase in all other cases encompasses the case of the defendant residing within the jurisdiction. It is interesting to note that this clause contains the same provision as the one contained in S. 5 of the First Civil P. C. dt. 22-3-1859. The universal rule of forum loci adopted in the Civil P. C. was also made applicable to the High Court in 1862. This is made clear in para 17 of the despatch from Secretary of State dt. 14-5-1862 accompaning the Letters Patent of 1862. The relevant extract of Para 17 is given below: -
'The terms of Cl. 12. Defining the original jurisdiction of the High Court as to suits, are nearly similar to those employed in S. 5 of the Civil P. C. (Act VIII of 1859). and are intended to include every description of case over which the Mofussil Courts have jurisdiction.............. It has. therefore been sought to invest the High Court. in the exercise of its original civil jurisdiction with an ample powers in receiving -and determining cases of every description, and in applying a remedy to every wrong as are exercised by the Courts not established by Royal Charter, and thus to place the Courts of first instance in the Presidency Towns and in the interior of the country in this respect, as nearly as may be, on the same footing.'
This solution. However. Was not found suitable. so there was a substantial modification in the subsequent Letters Patent, 1865. which is, now in force. and where an exception is made in respect of the High Court to the rule of forum loci in, respect of suits on immovables. It is for this reason that in all the subsequent Civil P. C.. right from the Code of 1877. a clause is inserted to the effect that 8s. 16, 17 and 20 of the Civil P. C. would not apply to High Courts. Those sections precisely. for the purpose of jurisdiction. make a fundamental distinction between suits on immovables and all other suits. In this connection it has to be remembere d that the Letters Patent of 1862 were provisional in nature and were to be modified within three years in the light of the experience gained.
7. Para 7 of the dispatch from Secretary of State dt. 14-5-1862 is emphatically clear on the above point. and it reads as follows :-
'Another reason for the form which the present Letters Patent assume. is to be found in the provisions of S. 17. of the Act of last Sessions. By that section power is given to the Crown to recall the Letters Patent establishing the Courts at any time within three years after its establishment, and to grant other Letters Patent in their stead. This provision was inserted in the Act. mainly with the view of enabling Her Majesty's Government to avail themselves of the advise and assistance of the Judges of the Court in framing the more perfect Charter by which the jurisdiction and authority of the Court is to be permanently fixed. On this point, I request you will put yourselves in communication with the Judges of the Court. and at any time previous to the expiration of two years from the date of establishment of the court. furnish me with any suggestions they make. or any amendments they may propose in the Letters Patent now transmitted. and I shall be glad if, in proposing alterations. the Judge will put their recommendations as early as possible in the form in which they wish. them to appear in the future Letters Patent.'
So. Cl. 12 in the Letters Patent of 1865 is different from Cl. 12 in the Letters Patent of 1862 and has made a deliberate departure from the solution adopted in 1862, and which attempted to bring similarity between the High Court and Mofussil Courts in matters if jurisdiction. We further find that in the Letters Patent of 1865 the position as it prevailed prior to 1862 has been restored. In fact, the Letters Patent dt. 26-12-1800 through which a Supreme Court of Judicature was established in Madras to which the High Court is a successor Court provides as follows : -
'And we do hereby further direct and ordain, that the said Supreme Court of Judicature at Madras, shall have full power to hear and determine all suits and actions that may be brought against the inhabitants of Madras.'
This makes clear that the intention of the Legislature in the Letters Patent of 1800 as well as 1865 is to give the Supreme Court and then to the High Court jurisdiction over suits, whatever be their nature, when the defendants reside in Madras. This deliberate departure from the universal principle of forum loci in respect of suits on immovables is due to historical reasons.
8. In the early period the British were having only settlements and restricted rights. It is in the course of time that they have progressively expanded their power over the country. The first courts created by them were mainly for the British and other Europeans and also for those residing within the limits of their settlements. When Courts were later created in the mofussil in the beginning of the 19th Century, the original distinction continued to survive as they were very keen to afford a justice of their own to the British subjects not only in respect of law and procedure applied but also in respect of persons administering justice. This is the reason why the Court established in Madras under various names was having powers. prerogatives and jurisdiction different from the courts Established in mofussil. The position is the same in respect of courts in Calcutta, Bombay and Rangoon. On the contrary the High Courts of Patna, Allahabad and Lahore where, there was no important British population do not have any ordinary original civil jurisdiction at all.
9. As far as Madras is concerned, the first court created by Charter dt. 30-1216~7 under the name of Mayor's Court had power to try and adjudge all cases, whatsoever. Criminal and civil, the shall be brought before that. The jurisdiction of the Court was thus left to the option of the parties. By Charter dt. 24-9-1726, the Mayor's Court was authorised to try, hear determine all civil disputes that shall arise or may I arise or happen within the said town of Madras or within any of the Factories subject or subordinate unto Fort St. George aforesaid. By Charter dt. 8-11753, the provision as stated above is reiterated with the following addition : 'except such suits or actions shall be between the Indian natives of Madras patna only, in which case we will that the same be determined among themselves, unless both parties shall by consent submit the same to the determination of the said Mayors Court'. This addition takes into account the large population of the Indian. natives who.had gathered at the time at 'Madras. Later, Letters Patent dt. 20-24798 was issued when the power of the British got firmly established and a Recorder's Court was crea0ed in the place of Mayo's Court. The relevant portion of that Charter is as follows -
'And we do further direct, ordain and appoint that the jurisdiction, powers and authorities of the said Court of the Recorder of Madras, shall extend to all British subjects, who shall reside within any of the factories, subject to, or dependent upon the Government of Madras; and that the said Court shall be competent and effectual, and shall have full power and authority to hear and determine all suits and actions, whatsoever, against any of our said subjects, arising in territories subject to, or dependent upon, or which hereafter shall be subject, to, or dependent upon the said Government or within any of the Dominions of the Native Princes of India, in alliance with the said Government, or against any person or persons who, at the time when the cause of action shall have arisen, shall have been employed by, or shall, have been, directly or indirectly, in the service of the said united company, or any of the said subjects of us, our heirs, or successors. ....... And we do hereby further direct and ordain, that the said Court of the Recorder of Madras shall. According to the said recited Act of Parliament of the Twenty- seventh Year of our Reign. have full power to hear and determine all suits and actions, that may be brought against the inhabitants of Madras.'
It is this last provision that has been reproduced in the Charter of 1800 establishing the Supreme Court of Judicature at Madras and in a different forum in the Letters Patent of 1865 after an eclipse of 3 years following the Letters Patent, 1862.
10. 'It is thus clear, that this Court has jurisdiction, whatever be the nature of the suit, in case the defendants reside within its territorial jurisdiction. This results out of a careful reading of Cl. 12 of the Letters Patent of 1865 and the jurisdiction for this extraordinary rule is supplied by the historical process. One may say that the reasons which militated for endowing the High Court in Madras with a jurisdiction different from that in the mofussil do no longer exist and that the universal rule of forum loci in respect of immovables should apply also to the High Court of Judicature at Madras. In fact, that would be step in the right direction and that would alleviate the burden of the original jurisdiction of this Court. But that step has to be achieved through a legislative process. Pending such a legislative action, the law as it is has to be applied and the law, as stated earlier, is to the effect that this Court has full jurisdiction to hear a suit when the defendants reside within its territorial jurisdiction, irrespective of the place of the immovable property.
11. 'Since, admittedly in the present suit, all the defendants reside within the territorial jurisdiction of this Court, this Court has clear jurisdiction to entertain the suit and for the same reason the question referred to us, as to whether the suit is one for immovable or not does not arise and the same need not be gone into this case. The reference is answered accordingly.
12. Reference answered accordingly.