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Sm. Parimal Mitra and ors. Vs. Paresh Chandra Hazra and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberC.O. No. 3215 of 1981
Judge
Reported inAIR1982Cal361,86CWN753
ActsCode of Civil Procedure (CPC) , 1908 - Sections 16 and 20
AppellantSm. Parimal Mitra and ors.
RespondentParesh Chandra Hazra and ors.
Appellant AdvocateRanjit Kumar Banerjee and ;Alok Kumar Ghosh, Advs.
Respondent AdvocateSudhis Das Gupta and ;Amal Chakraborty, Advs.
DispositionApplication dismissed
Cases ReferredIn Probirendra Mohan Tagore v. State of Bihar
Excerpt:
- .....c. according to him, there is no question as to the determination of any right to or interest in immovableproperty and, as part of the cause-of-action arose within the jurisdiction of the city civil court, calcutta, that court has jurisdiction to entertain and try the suit. upon the said findings, the learned judge decided the issue in favour of the plaintiff. hence this revisional application under section 115 of the civil p. c.5. section 16 of the civil p. c. provides as follows:'subject to the pecuniary or other limitations prescribed by any law, suits - (a) for the recovery of the immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d).....
Judgment:

M.M. Dutt, J.

1. This application under Section 115 of the Civil P. C. has been filed by the defendants Nos. 1 and 3 to 5, and it is directed against order No. 51 dated July 29, 1981 of the learned Judge, 5th Bench, City Civil Court, Calcutta in Title Suit No. 231V of 1958 holding that the said Court has jurisdiction to try the suit instituted by the plaintiff opposite party.

2. The plaintiff's case in short is that he was at all material times and still is a tenant under the defendants Nos. 1 and 3 to 5 of the entire building known as Atindra Dham and situate at Gopal Ballav Road, Sea Beach, Puri at a monthly rent of Rs. 300 payable according to the English Calendar month. The defendants Nos. 6 to 9 are the sub-tenants under the plaintiff. On August 31, 1977, the defendant No. 4, one of the landlords of the plaintiff, took him to the HongkongHouse, Calcutta and he was compelled to sign some papers. Subsequently, the plaintiff came to know that he was made to execute a resolution and/or an agreement whereby he had purported to surrender his tenancy in respect of the disputed building in favour of the owners and landlords. Under that agreement, a sum of Rs. 16,000 was payable to the plaintiff by the said defendants as consideration for the surrender. In the suit, the plaintiff has, inter alia, prayed for the following reliefs:

(i) Decree be passed declaring that the purported resolution and/or agreement dated 31st Aug., 1977 at the meeting held at Hongkong House office of the defendant No. 9 is illegal, collusive and void and is not binding upon the plaintiff.

(ii) Declaration that the defendants Nos, 1 and 3 to 5 have committed breach of the purported agreement dated 31st Aug., 1977 held at the office of Bharat Refineries Employees' Co-operative Society ' at Hongkong House and the plaintiff had right to cancel and has cancelled the said agreement in the alternative.

(iii) Decree declaring that the purported resolution and the purported agreement dated 31st Aug., 1977 has not affected in any way the plaintiff's tenancy right in respect of the premises Atindra Dham at Puri under the defendants Nos. 1 and 3 to 5 * * *

(iv) Permanent injunction restraining the defendants Nos. 1 and 3 to 5 from realising any rent from defendants Nos. 6 to 9, different sub-tenants under the plaintiff in the premises Atindra Dham ' at Sea Coast Puri and from disturbing plaintiffs possession of the said Atindra Dham in any manner whatsoever.

3. The defendants Nos. 1 and 3 to 5 have been contesting the suit by filing a written statement. It has been admitted by them that the plaintiff was a tenant in respect of the disputed building. But it is alleged that the plaintiff has surrendered his tenancy by the said agreement dated Aug. 31, 1977. It is contended by them that the suit cannot be tried by the City Civil Court, Calcutta for want of jurisdiction as contemplated by Section 16(d) of the Civil P. C.

4. The learned Judge framed an issue ag to jurisdiction and tried the same as a preliminary issue. It has been held by the learned Judge that the suit is not one coming within the purview of Section 16(d) of the Civil P. C. According to him, there is no question as to the determination of any right to or interest in Immovableproperty and, as part of the cause-of-action arose within the jurisdiction of the City Civil Court, Calcutta, that court has jurisdiction to entertain and try the suit. Upon the said findings, the learned Judge decided the issue in favour of the plaintiff. Hence this revisional application under Section 115 of the Civil P. C.

5. Section 16 of the Civil P. C. provides as follows:

'Subject to the pecuniary or other limitations prescribed by any law, suits -

(a) for the recovery of the immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate.'

(The Proviso and Explanation to Section 16 are not relevant for our purpose and are omitted.)

6. It is not disputed on behalf of the defendants that Clauses (a) to (c), (e) and (f) of Section 16 have no manner of application to the instant suit. It is, however, contended by Mr. Banerjee, learned Advocate appearing on behalf of the defendants that the suit is one for the determination of a right to or interest in immovable property, that is, the disputed building, and that in view of Clause (d) of Section 16, the suit can only be instituted in Orissa Court within the local limits of whose jurisdiction the building is situate.

7. Now the question is whether the suit is for the determination of any right to or interest in the disputed building. I have already set out above the reliefs claimed by the plaintiff in the suit. It is apparent that the principal relief asked for by the plaintiff is for a declaration that the said purported resolution and/or agreement dated Aug. 31, 1977 is illegal and void and is not binding on the plaintiff. The plaintiff has not asked for the determination of any right to the disputed building. It is not the plaintiffs prayer that he wants the Court to adjudicateupon his tenancy right in the disputed building. It has been already stated that the defendants have not denied the plaintiff's tenancy right in respect of the said buildings but their case is that the plaintiff has lost his right of tenancy by virtue of the alleged surrender of the same by the impugned agreement dated Aug. 31, 1977, Mr. Banerjee has drawn my attention to prayer (iii) in the plaint whereby the plaintiff has asked for a declaration that the said purported resolution or agreement dated Aug. 31, 1977 has not affected in any way, the plaintiff's tenancy right in respect of the disputed building. This prayer, in my opinion, does not require the Court to decide any right of the plaintiff in the disputed building. The declaration contained in prayer (iii) of the plaint may be said to be a consequential relief. If the Court comes to a finding that the impugned agreement is void, the plaintiff's right of tenancy would continue as before and the declaration as prayed for under that prayer will follow as a matter of course. In considering whether a suit is for determination of any right to pr interest in immovable property, the whole of the plaint and the-reliefs should be considered. In my opinion, the plaintiff has not sought for any relief which will require the Court to decide any right to or interest in immovable property. It is true that if the plaintiff gets a declaration that the said purported agreement or resolution is void, the plaintiff's tenancy right in respect of the disputed building under the defendants would be restored, but because of that it cannot be said that the suit is one for determination of a right to or interest in immovable property.

8. Mr. Banerjee has placed strong reliance on a Bench decision of this Court in Hadjee Ismael v. Hadjee Mahomed, (1874) 21 Suth WR 303. In that cass, the suit was filed in the Original Side of this Court for setting aside a release alleged to have been executed in Calcutta under fraudulent representations made by the first defendant, and for an account and administration of the estate of a deceased Mahomedan who died intestate in Bombay, where he left movable and immovable property. The plaintiff asked for leave under Clause 11 of the Charter of the High Court of 1865. The leave was granted by the trial Court, but on appeal the order of the trial Court granting leave was set aside and the plaint was directed to be taken off the file, so that the plaintiff might file the plaint in the High Court at Bombay, I do not think that the above decision is of any assistance to the defendants, for, in that case, the question was whether the cause-of-action arose wholly in Calcutta. Couch, C. J. who delivered the judgment of the Bench observed;

'Here the cause-of-action cannot be said to have arisen wholly in Calcutta... ...... The fraudulent representationswhich led to the execution of the release may have been made and the release may have been executed here; but the cause-of-action in this case consists of more than that ... ...... Then where did therelease take effect? ...... ...... It would,perhaps be a somewhat far-fetched application of the doctrine to hold that the release operated in Calcutta in regard to the plaintiffs share of the movable property. It certainly could not do so in regard to the share in the immovable property, which apparently formed the greater portion of what the plaintiff claimed to be entitled to. That was in Bombay, and that part of the cause-of-action arose there. In such a case as the present, I think the cause-of-action in respect of the immovable property arose in the place where the release took effect, and the suit comes within that part of the clause which provides 'that the leave of the Court must be obtained.'

It is clear from the above observation that though a part of the cause-of-action arose in Calcutta, the greater part arose in Bombay where the property was situate. It was not held that the suit was for land within the meaning of Clause 11 of the Charter. But it was held that greater part of the cause-of-action arose in Bombay where the release took effect. After considering the facts and circumstances, their Lordships took the view that the leave should not be granted. In the instant case, a part of the cause-of-action has arisen in Calcutta. There is no question of obtaining any leave for the purpose of filing the suit in the City Civil Court, Calcutta, for, in view of Clause (c) of Section 20 of the Civil p. C. the suit can be filed in that Court as part of the cause-of-action has arisen in Calcutta.

9. The next decision which has been relied on by the defendants is Messrs. Moolji Jaitha and Co. v. K. S. & W. Mills Co., AIR 1950 FC 83. In that case, the suit was filed in the Original Side of the Bombay High Court. The prayers (a) and (b) of the plaint of that suit were as follows:

'(a) That it may be declared that the said land (particularised in para 8) be-longed and are the properties of the plaintiff company and the defendants have no beneficial interest therein.

(b) That the defendants may be ordered to execute all such documents and deeds and do such acts as may be necessary for transferring the said lands to the name of the plaintiff.'

The majority view that was expressed by Kanja C. J., Patanjali Sastri and Fazal Ali, JJ. was that the suit was not a suit for land within Clause 12 of the Letters Patent. It has been observed by Kania C. J. that in order to see whether a suit covered by the expression 'suit for land' in Clause 12, it has to be considered whether it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something different but involves the consideration of the question of title to land indirectly. It is observed by Patanjali Sastri J. that the words 'suit for land or other immovable property' in Clause 12, besides obviously covering claims for recovery of possession or control of land, are apt to connote also suits which primarily and substantially seek an adjudication upon title to immovable property or determination of any right or interest therein. In this connection, I also like to refer to the observation of B. K. Mukherjea J., although he was in the minority. It has been observed by his Lordship that the words 'suit for land' mean a suit for establishing title to land of any interest in the same or for possession or control thereof; and the decree sought for must be intended proprio vigore to be enforceable against and binding on the land itself. On the basis of the above interpretation of the expression 'suit for land or other immovable property', it cannot be said that the instant suit is a suit for land or other immovable property, even assuming that the said expression is synonymous with the provision of Section 16(d) of the Civil P. C.

10. In Probirendra Mohan Tagore v. State of Bihar, : AIR1959Cal767 (SB) the plaintiff instituted the suit in the Original Side of this Court challenging the notification dated Oct. 30, 1952 issued by the Bihar Government under the Bihar Land Reforms Act, 1950. By the said notification, the estate of the plaintiff under the Bengal Settled Estates Act, 1904 in so far as the lands situate in Bihar were concerned, had vested in the State of Bihar. The estate of the plaintiff also included lands situate in Calcutta. It was held that the suit was really asuit for lands situate in Bihar and this Court had no jurisdiction to entertain the suit. Further, it was held that although the estate of the plaintiff under the Bengal Settled Estates Act, 1904 included properties within Calcutta, no injury or threatened injury to such properties having been alleged in the plaint, no part of the cause-of-action arose within Calcutta. It, therefore, appears that in that case, it was held to be a suit for land situate wholly within the State of Bihar. That case, therefore, is of no help to the defendants.

11. In the instant suit also there is an allegation of fraud. In other words, the suit is founded on fraud and the fraud has been alleged to have been committed within the jurisdiction of City Civil Court, Calcutta. It is now an accepted principle of law that the Court within whose jurisdiction fraud is committed will be entitled to entertain a s it founded on fraud. From that point of law also the City Civil Court had jurisdiction to try the suit.

12. For the reasons aforesaid, this application fails, and it is dismissed. There will, however, be no order as to costs.


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