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Macneill and Magor Ltd. and anr. Vs. Mouhsen Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata High Court
Decided On
Case NumberAppeal No. 25 of 1980
Judge
Reported inAIR1985Cal460
ActsSpecific Relief Act, 1963 - Section 38; ;Code of Civil Procedure (CPC) , 1908 - Section 24 - Order 7, Rule 10 - Order 49, Rule 3
AppellantMacneill and Magor Ltd. and anr.
RespondentMouhsen Ali and anr.
Cases ReferredMaharaja Probirendra Mohan Tagore v. State of Bihar
Excerpt:
- .....relating to the land or user of the land as claimed in this suit did not ipso facto make this suit a suit for land. the plaintiffs, it was submitted, were in effect seeking to enforce a negative covenant by an injunction under the specific relief act. it was submitted that the judgment and order under appeal were erroneous inasmuch as the cause of action of the plaintiffs arose from a breach of the contract between the parties. the plaintiffs did not claim any title to the said space or possession, management or control thereof.11. learned counsel for the respondents contended to the contrary and submitted that law was quite clear that a suit substantially concerning or relating to land was a suit for land. the reliefs claimed in the suit were in the nature of specific.....
Judgment:

D.K. Sen, J.

1. Macneilt and Magor Ltd.. the plaintiff No. 1 and Denzil G. Stephens, the plaintiff No. 2. instituted this Suit on or about the 29th Aug.. 1979 against Mohsen Ali. the defendant No. 1 and M. H. Khaleeli. the defendant No. 2, claiming, inter alia.

a) A declaration that the defendants are not entitled to cause any obstruction to or interfere with the free ingress and egress to and from the building at premises No. 217. Acharya Jagadish Chandra Bose Road. Calcutta through the Northern Gate and the user by the plaintiffs of a space delineated in the sketch plan annexed to the Plaint.

b) A perpetual injunction restraining the defendants from interfering with the right of the plaintiffs to have free ingress and egress to and from either flat in the said building through the said northern gate and/ or user of the said space for the aforesaid purposes or from fixing any chain or any otfcer device for obstructing the opening of the said gate or from creating any other obstruction or interference in any manner whatsoever.

c) A mandatory injunction directing the defendants to forthwith remove a chain from the said gate of the said premises and to allow free ingress and egress to the plaintiff No. 2 through the said gate and the user of the said space.

2. The material facts constituting the cause of action of the plaintiffs in this suit are, inter alia, as follows :

a) The defendant No. 2 is the owner of the land and building at premises No. 217, Acharya Jagadish Chandra Bose Road, Calcutta, hereafter referred to as the said premises;

b) The defendant No. 2 let out a flat situated on the second floor of the building in the said premises on and from the 1st June 1970 to the plaintiff No. 1 for residence of its Officers at a stipulated rent initially for a five years with option to the plaintiff No. 1 to renew the same for another five years.

c) The terms and conditions of the tenancy were recorded in a letter dated the 18th June 1970 but prior thereto it was expressly represented by the defendant No. 2 that the plaintiff No. I and the occupiers of the said flat would be entitled to the user of a space in the courtyard on the western side of the said premises for ingress to and egress from the said flat and also for parking motor vehicles therein.

d) The said agreement of tenancy was concluded at the office of the plaintiff No. 2 within the original civil jurisdiction of this Court.

e) The right to user of the said space was, in the alternative, a licence coupled with the grant of the said tenancy and in the further alternative was a right in the nature of easement annexed to the tenancy.

f) The plaintiff No. 2 has been in occupation of the said flat on and from July 1970 continuously and the plaintiffs have enjoyed the user of the said space in the courtyard as also the user of the northern gate in the said premises.

g) The defendant No. 1 claims to be an authorised representative of the defendant No. 2 and a care-taker of the said premises.

h) Since 24th Dec. 1978 the defendants wrongfully kept the northern gate in the said premises looked with a chain and interfered with the user of the plaintiffs of the said space in courtyard and obstructed the plaintiffs in their ingress to and egress from the said flat through the said northern gate.

3. On a notice dated the 28th Aug., 1979 the defendants made an application in the suit for the following orders : --

a) The suit be dismissed with costs for want of jurisdiction.

b) Alternatively, the plaint filed in the suit be rejected and taken off the file.

4. It was contended by the defendants in their petition that the plaintiffs had no right to enter the premises through the said northern gate or to park any car in the said space in the courtyard. It was contended further that the plaintiffs were seeking declaration of a right in respect of the said space which was in the nature of easement or grant relating to the said tenancy and an injunction in respect thereof. The reliefs claimed were in respect of an immoveable property admittedly situated outside the jurisdiction of this Court. It was contended that the suit is a suit for land situated outside the jurisdiction of this Court. As such this Court had no jurisdiction to entertain and try the suit.

5. One Patrick lan Savedra. a principal-Officer of the plaintiff No. 1, affirmed an affidavit on the 10th Sept., 1979 which was filed in opposition to the said petition. In this affidavit the contentions of the defendants were disputed.

6. Mohsen Ali, the defendant No. 1. affirmed an affidavit on the 12th Sept. 1979 which was filed in reply to the aforesaid affidavit of Patrick lan Savedra.

7. The said application was disposed of by a judgment and order dated the 10th Dec., 1979 where it was found that the dispute in the suit was in respect of the right, title and interest of the plaintiffs in the said space in the courtyard of the said premises and that though the plaintiffs were not claiming possession of the said premises directly but doing so indirectly through an injunction.

8. It was further found that the right of the plaintiffs to use the said space, the subject matter of the suit was a property situated outside the jurisdiction of this Court. The learned Judge came to the conclusion that this suit was a suit for land and this Court had no jurisdiction in respect of such land. The learned Judge directed that the suit be dismissed with costs for want of jurisdiction.

9. The present appeal has been preferred from the said judgment and order dated the 10th Dec., 1979.

10. Learned Counsel for the appellant submitted at the hearing of the appeal that the suit was instituted to prevent the defendants from interfering with the plaintiffs' right of ingress to and egress from the said premises. This did not involve adjudication of question relating to title, possession, management or control of the property. It was submitted further that it was only at the final trial the Court could come to a proper conclusion as to the nature of the suit and not in the initial stage. It was submitted further that ascertainment of the terms of contract relating to the land or user of the land as claimed in this suit did not ipso facto make this suit a suit for land. The plaintiffs, it was submitted, were in effect seeking to enforce a negative covenant by an injunction under the Specific Relief Act. It was submitted that the judgment and order under appeal were erroneous inasmuch as the cause of action of the plaintiffs arose from a breach of the contract between the parties. The plaintiffs did not claim any title to the said space or possession, management or control thereof.

11. Learned Counsel for the respondents contended to the contrary and submitted that law was quite clear that a suit substantially concerning or relating to land was a suit for land. The reliefs claimed in the suit were in the nature of specific performance.

12. In support of the respective contentions of the parties several decisions were cited which are considered as hereunder :

a) Moolji Jaitha v. Khandesh Spinning and Weaving Mills Ltd. reported in AIR 1950 FC 83. This decision was cited for the observations of the serveral learned Judges of the Federal Court. The consensus as can be gathered from such observations is that a suit which directly affected the possession or control of land would be a suit for land.

b) Maharaja Probirendra Mohan Tagore v. State of Bihar, reported in : AIR1959Cal767 . In this case a suit had been filed in this court for a declaration that right, title and interest in a settled estate created under a Deed of family settlement had not been affected by notification issued by the Revenue Department, Government of Bihar under the Bihar Land Reforms Act 1959 and also for a further declaration that the said notification was invalid and inoperative and did not bind the plaintiffs.

A Special Bench of this Court found that the primary object of the suit was to obtain a permanent injunction restraining the State of Bihar. It was held that the said relief claimed was in respect of land situated wholly outside the State of West Bengal and this Court could not entertain the suit in its ordinary original civil jurisdiction.

c Tridandeeswami Bhakti Kusum Sraman Maharaj v Mayapore Sree Chaitanya Math reported in : AIR1983Cal420 . In this case a Division Bench of this Court held where relief claimed in the suit could not be granted without deciding the question of title to or possession, control or management of land or other immovable property the suit will be a suit for land.

13. From a perusal of the plaint it is clear that the reliefs claimed by the plaintiff in this suit concern land outside the jurisdiction of this Court. The declaration and the injunction sought for admittedly will affect possession and, or control of the said space in the courtyard of the premises. Whether the plaintiffs are entitled to have possession or occupation of the said space would necessarily fall for determination in this suit. For the reasons above we hold that this suit is a suit for land and this Court does not have jurisdiction to entertian and try this suit.

14. Next to be decided is whether the suit can be dismissed on an application of the defendants at this stage and before the same has been brought to trial. Under the Civil P.C a plaint filed in this Court can be rejected on very limited grounds. The material part of Order VII, Rule II of the Civil PC reads as follows :-

'The plaint shall be rejected in the following cases

a) Where it does not disclose a cause of action;.....

b Where the suit appears from the statement in the plaint to be barred by any law .....'

15. It cannot be said that in the instant case the plaint does not disclose a cause of action nor it can be said from any statement of the plaint that the suit is barred by any law.

16. Therefore, it cannot be held that the defendants have made out a case for rejection of the plaint. There are decisions of this Court where leave granted to file a suit in the Ordinary Original Civil Jurisdiction of this Court under Clause 12 of the Letters Patent on the ground that part of the cause of action has arisen within the jurisdiction of this Court have been revoked and the plaint was directed to be taken off the file. In the instant case the suit has not been filed with leave under Clause 12 of the Letters Patent and therefore there cannot be any question of revocation of such leave with a consequential direction for taking the plaint off the file

17. There is no other provisions in the Civil P C. under which a suit can be dismissed on the ground of lack of jurisdiction at the preliminary stage.

18. We note that in the case ofTndandeeswami Bhakti Kusum SramanMaharaj : AIR1983Cal420 (supra) it wasdirected that the plaint should be returned tothe Advocate on record of the plaintiffs forpresentation before the proper Court.Presumably this direction was give n finder Rule 10, Order VII of the Code which (sic) asfollows --

'Subject to the provisions of Rule 1A, the plaint shall) at any stage of the suit returned to be presented to the Court in which the suit should have been instituted.

I Explanation : For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit the return of the plaint under this sub-rule.) Procedure on returning plaint -- (2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.'

19. Rule 10 of Order 7 of the Civil P.C. does not apply to a Chartered High Court when it exercises its ordinary or extraordinary civil jurisdiction. This has been provided for clearly in Rule 3 of Order XLIX of the Code. This provision appears to have been overlooked by the Division Bench.

20. The Chartered High Courts were exempted from the operation of the provisions of Rule 10 of Order VII of the Code possibly for the historical reason that at one time suits could be filed in the original jurisdiction of the Chartered High Courts without court-fees and return of a plaint from a Chartered High Court to District Courts would have created complications.

21. Be that as it may, it will only prolong and multiply proceedings if this suit is allowed to be brought to trial and ultimately fails for lack of jurisdiction. For the ends of justice we exercise the jurisdiction conferred by Section 24 of the Civil P.C. and direct that this suit should be transferred to the District Court having jurisdiction over the land. Let the Registrar, Original Side take the necessary steps. Till the records are in this Court the interim orders passed will continue.

22. To the extent as above, the judgment and order under appeal will stand modified. Costs costs in the suit.

S.C. Sen, J.

I agree.


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