Skip to content


Trustees for Improvement of Calcutta Vs. Bahadur Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2726 of 1983
Judge
Reported inAIR1984Cal412,89CWN16
ActsCode of Civil Procedure (CPC) , 1908 - Sections 16 and 20 - Order 7, Rule 10 and 10A - Order 14, Rule 2; ;Calcutta Improvement Act - Section 78; ;Land Acquisition Act - Section 9
AppellantTrustees for Improvement of Calcutta
RespondentBahadur Khan and ors.
Appellant AdvocateGunendra Chandra Dey, Adv.
Respondent AdvocateGanesh Chandra Basak, Adv. (for No. 1), ;Sadhan Gupta, Addl. Adv. General and ;Dipti Kana Basu, Adv. (for No. 2)
DispositionRevision allowed
Cases Referred(Shama Sundari v. Ramapati
Excerpt:
- .....jurisdiction the suit was liable to be dismissed. there i am unable to agree with him. order 14, rule 2, sub-rule (2) provides as follows : --'(2) where issues both of law and of fact arise in the same suit, and the court is ofopinion that the case or any part thereof may be disposed of on a issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of other issues, only after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.' 13. the rule nowhere says that in the event of the court finding that it had no jurisdiction, the suit has to be.....
Judgment:
ORDER

B.C. Chakrabarti, J.

1. This revisional aplication at the instance of the defendant No. 2 of Title Suit No. 2374 of 1982 now pending in the 12th Bench of the City Civil Court at Calcutta is directed against an order datedJuly 15, 1983. By the said order the learned Judge disposed of an application under Order 14, Rule 2, C. P. Code filed by the defendant No. 2. The defendant No. 2 (the petitioner herein) alleged that the court had no territorial jurisdiction over the subject-matter of the suit. The learned Court below found in favour of the plaintiff opposite party No. 1 hence the present revisional application.

2. In order to appreciate the points involved in this revisional application it would be eminently reasonable to bear in mind certain facts and the reliefs claimed in the suit in the context of the allegations made in the plaint as also in the context of the proceedings that preceded the presentation of the plaint. The suit relates to and arises out of art acquisition proceeding in respect of entire premises No. 21 (old No. 5), Prince Anwar Shah Road, Calcutta. The property is admittedly beyond the territorial jurisdiction of the City Civil Court. The offices of the petitioner defendant No. 2 and the second Land Acquisition Collector are, however, within the jurisdiction of the City Civil Court. There has been an award for the acquisition of the said premises at Prince Anwar Shah Road. The opposite party No. 1, the plaintiff had filed an application in 1976 under Section 78 of the Calcutta Improvement Act for abandonment of a portion of the property on the plea that it was not required for the purpose of widening of Prince Anwar Shah Road for which the acquisition was being made. This application was rejected. In the suit before the City Civil Court the plaintiff alleged that the plaintiff and his uncle, Akhtar Khan both inhabitants of Afganisthan, came to Calcutta in 1952 and took a tenancy in premises No. 5, Prince Anwar Shah Road. The tenancy stood in the name of Akhtar Khan. Akhtar Khan died in 1958. Since then the plaintiff had been in occupation of the premises continuously and even inducted subtenant under him after construction of structures in the vacant land with the permission and knowledge of the Matwali the defendant No. 3. The plaintiff, therefore, is a person interested in the said premises. The plaint goes on to state that in July, 1976 the plaintiff came to know that under scheme No. 114B of the Calcutta Improvement Trust the entirepremises No. 21, Prince Anwar Shah Road has been marked as required for the said scheme for the purpose of widening of the then existing Prince Anwar Shah Road. The plaintiff thereupon applied to the Chairman, Calcutta Improvement Trust under Section 78 of the Calcutta Improvement Act, 1911, praying for abandonment of a portion of the premises which was not required for execution of the scheme. This, however, was not acceded too. The defendants Nos. 1 and 2 (petitioner and the Second Land Acquisition Collector, Calcutta) initiated a proceeding for acquisition of the property under the provisions of the Land Acquisition Act, 1894. The notice was issued in the name of late Akhtar Khan who had died in the year 1958, although the plaintiff has been in occupation of the premises for over 20 years as heir and legal representative of Akhtar Khan. Therefore, the basis of the land acquisition proceeding was illegal and ultra vires. Ultimately the plaintiff came to know that an award has been made on 18-3-1981. Thereafter the plaintiff was advised to file a writ application under Article 226 of the Constitution challenging the validity and legality of the notice issued from the office of the Land Acquisition Collector. Pursuant to the said writ application a Rule was issued being Civil Rule No. 11138(W) of 1981. The said Rule was finally heard on October 7, 1982 and was discharged mainly on the ground that the plaintiff was a foreign national and also on the ground that the relief as prayed depended solely on matters regarding which there was no scope for consideration in the writ petition. The plaintiff thereupon preferred an appeal against the said order dated October 7, 1982 which was numbered as F.M.A.T. No. 3094 of 1982. Eventually the plaintiff was advised not to proceed with the said appeal and accordingly the appeal was withdrawn with liberty to file a suit. Thereupon the suit was filed. It is stated that the cause of action arose on 8-4-1981. When the award for the entire premises was made at the office of the Land Acquisition Collector at No. 5, Bankshal Street, Calcutta, within the jurisdiction of the City Court and also on September 24, 1982 when the plaintiff came to know that his application under Section 78 of the Calcutta Improvement Act had beenrejected by the Authority at his office at P-16, India Exchange Place, Calcutta also within the jurisdiction of the City Court.

3. The plaintiff prayed for a declaration that the acquisition of the premises without serving notice under Section 9 of the Land Acquisition Act in the name of the plaintiff was bad, illegal and not binding upon the plaintiff, that the acquisition of the premises in its entirety is illegal and arbitrary, that the trustees for the Improvement of Calcutta is under a legal obligation to abandon a portion of the premises which was not required for the execution of their scheme, that the plaintiff has obtained an adverse right to the property by having continued an uninterrupted possession for more than 20 years and thereby acquiring at least a limited right of adverse possession as a tenant and for a permanent injunction restraining the defendants from taking possession of the premises.

4. After the summons in the suit had been served the petitioner, trustees for the Improvement of Calcutta and the Land Acquisition Collector entered appearance and filed an application purported to be under Order 14, Rule 2 of the C. P. Code. They contended that the property in dispute b,eing situate outside the jurisdiction of the court and in view of the reliefs claimed in respect thereto the City Civil Court had no territorial jurisdiction to entertain the suit. After hearing both sides the learned Judge disposed of the application by the order impugned in this revisional application. The learned Judge found that there could be no dispute that a part of the cause of action, namely, the making of the award and the rejection of the application under Section 78 of the Calcutta Improvement Act arose within the jurisdiction of the City Court and that, therefore, the City Court has jurisdiction to try the suit.

5. Being aggrieved the trustees for the Improvement of Calcutta have preferred the present revisional application against the plaintiff making the Land Acquisition Collector as opposite party No. 2 therein. Mr. Dey appearing for the petitioner argued that the suit as framed, clearly came within the meaning of Section 16 of the Code of Civil Procedure and that therefore, the suit could not have beenfiled or entertained by the City Court at Calcutta, - the property in dispute being admittedly beyond the territorial jurisdiction of the Court. Mr. Sadhan Gupta the learned Additional Advocate General supported the petitioner and contended that the application under Order 14, Rule 2, C.P. Code ought to have been allowed and the suit disposed of on that basis. Precisely his argument is that the Court should have found that the City Court had no jurisdiction and that, therefore, he should have, under the provisions of Order 14 Rule 2, C.P. Code, dismissed the suit.

6. Mr. Basak for the opposite party No. 1 (plaintiff in the suit) on the other hand contended that this was suit which came within the meaning of Section 20 of the C. P. Code and that since a part of the cause of action arose within the jurisdiction of the City Court, that court had jurisdiction to try the suit.

6A. Section 16 provides as follows : --

'16. Subject to the pecuniary or other limitations prescribed by any laws, suits -

(a) for the recovery of 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 added to the section is unnecessary for our present purposes and hence not quoted.

7. Section 17 relates to suits for immovable property situate within the jurisdiction of different courts. Section 18 relates to place of institution where local limits of jurisdiction of courts are uncertain. Section 19 relates to suits for compensation for wrong to person or movables. Sections 17 to 19, therefore.may be left out of consideration for the purpose of present dispute. Section 20 runs to the following effect : --

'20. Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.'

8. Section 20 is a residuary section as would be apparent from the use of the words 'subject to the limitation aforesaid'. This means that Section 20 is invoked when Sections 16 to 19 in terms do not apply to a given case. This being the position in law the plaintiff could institute this suit in the City Civil Court only in the event of Section 16 being found not to have any application.

9. Mr. Basak in support of his contention that the jurisdiction was to be determined under Section 20 of the C. P. Code relied on two decisions of this Court reported in : AIR1973Cal319 (Suit. Shyama Sundari v. Ramapati) and : AIR1983Cal307 (Union of India v. Hindusthan Aluminium). In my view none of these decisions really has any application to the facts of the case before us. The case of Union of India v. Hindusthan Aluminium did not relate to any immovable property. The aluminium Corporation as petitioner, challenged the legality of certain orders passed by the Central Government in respect to Aluminium Control Order. A preliminary objection was taken that the plaint fo the petitioner was outside the jurisdiction of the court and as such no part of the causeof action arose within its jurisdiction. It was submitted that although the factory was situate outside the jurisdiction, the impugned orders adversely affected the business of the petitioners in Calcutta where it had its principal office and that the substantial amounts of sale proceeds of which petitioner was compelled to pay, was received in Calcutta and that, therefore, a part of the cause of action arose in Calcutta. It is clear upon a perusal of the facts of that case that the dispute did not centre round the factory which was outside the jurisdiction of the court, but was confined to the propriety of the orders passed by the Central Government in fixing the sale price and retention prices of indigenous aluminium. This was clearly a case coming within the meaning of Section 20 of the C. P. Code and consequently the court where a part of the cause of action arose was competent to try the suit.

10. The other suit (Shama Sundari v. Ramapati) : AIR1973Cal319 also does not decide the point at issue. There the dispute was with regard to certain documents. According to the plaintiff the documents were void having been obtained by fraud and for injunction. It was held that in the facts of the case the question of determination of any interest in or right to land was not involved in the suit and that the suit as framed fell within the meaning of Section 20 of the C. P. Code and not under Section 17 as alleged.

11. In the present case before us the main point for consideration, therefore, would be whether the suit as framed comes under any of the clauses enumerated in Section 16. If that be so then there would be no question of invoking Section 20, C. P. Code. I have already stated the reliefs claimed in the suit. There can be no dispute that the reliefs centre round an immovable property situate outside the jurisdiction of the City Court. Clause (d) relates to suits for determination of any right to or interest in immovable property. From the recitals in the plaint as also in the prayers claimed in the suit it is clear that the plaintiff wanted a determination as to his right and status in regard to the property in dispute and on that basis questioned the propriety of the notice under Section 9 of the Land Acquisition Act being issued in the name of Akhtar Khan. Incidentally it may be mentionedthat in the writ application filed by the plaintiff, also the plaintiff wanted a determination as to such right. This would be evident from the order passed in the writ application, a part of which has been quoted in paragraph 5 of the affidavit-in-oppositipn filed by the plaintiff himself (opposite party No. 1). In that decision it was observed that 'it is yet to be determined whether the petitioner is a tenant in fact in respect of the disputed premises, as he alleged, after the death of Akhtar Khan, who it is alleged is his uncle and who died in 1958.' Against this order the plaintiff opposite party No. 1 preferred an appeal but ultimately withdrew from the same with liberty to seek relief in the appropriate court. Therefore, it is apparent that in the writ application amongst the points involved one was certainly a determination of the right of the plaintiff in regard to the disputed premises. The prayer portion of the plaint of the suit also is indicative of the fact that the plaintiff wanted a declaration as to the determination of a right allegedly acquired by him in respect of the property (prayer (d) of the plaint). Therefore, it appears to me that the forum should be determined in this case under Section 16 of the Civil Procedure Code Clause (d) whereof completely covers a situation like this. In that view of the matter the suit has to be instituted in the court within the local limits of whose jurisdiction the property is situate. The suit having come within the meaning of Section 16 the plaintiff could not file the suit elsewhere with the aid of Section 20, C. P. Code. Therefore, I am unable to agree with the finding of the learned Judge in the court below that since a part of the cause of action by making the award arose within the jurisdiction of that court, that court had jurisdiction to try the suit. The revisional application consequently is liable to succeed in so far as the question of jurisdiction is concerned.

12. Mr. Sadhan Gupta, however, contended that once it is found on an application under Order 14, Rule 2, C. P. Code that the court had no jurisdiction the suit was liable to be dismissed. There I am unable to agree with him. Order 14, Rule 2, Sub-rule (2) provides as follows : --

'(2) Where issues both of law and of fact arise in the same suit, and the court is ofopinion that the case or any part thereof may be disposed of on a issue of law only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of other issues, only after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.'

13. The Rule nowhere says that in the event of the court finding that it had no jurisdiction, the suit has to be dismissed. Firstly such a proposition seems to be absurd because once the court finds that it has no jurisdiction to try the suit, it cannot dispose of the same by an order of dismissal. That too would be without jurisdiction. That apart what rule 2 envisages is that after the determination of the issue as to jurisdiction the court may deal with the suit in accordance with the decision on that issue. The decision on that issue being that the court had no jurisdiction, the relevant provision of the Code to apply would be Order 7, Rule 10 of the C. P. Code Order 7 Rule 10 provides for return of the plaint to be presented to the court in which the suit should have been instituted. Therefore, after a finding that the court had no territorial jurisdiction the course open to the court would be not to dispose of the suit but to deal with it in terms of Order 7, Rule 10, subject to the provisions of Rule 10A.

14. In that view of the matter the revisional application succeeds. The order impugned in this revisional application is set aside and it is found that the City Civil Court has no jurisdiction to try the suit. Necessarily the plaint has to be returned under Order 7, Rule 10 of the Civil Procedure Code subject to the provisions of Rule 10A thereof and I direct accodingly. The Rule is made absolute. There will be no order for costs.

15. Let the records be sent down to the court below forthwith.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //