(Judgment of the Court was delivered by C.NAGAPPAN, J.)
1. This original side appeal is directed against the order dated 20.12.2011, made in the application in A.No.1400/2011 in C.S.No.573/2001. The applicant/first defendant is the appellant herein.
2.The second respondent herein filed the suit under Order XXXVI Rule 2 of Original Side Rules read with Order XXXIV Rule 1 of Code of Civil Procedure on the original side of this Court, seeking for a judgment and decree as against the defendants, directing them to pay the plaintiff a sum of Rs.40,55,000/- with further interest and costs on a day to be fixed by the Court, and in default, the mortgaged property be sold and the proceeds applied towards the payment of the amount of the said principal, interest and costs, and in the event of such proceeds not being sufficient for the payment in full of such amount, to pay the plaintiff the amount of deficiency with interest and for a personal decree for the remaining sum.
3.Briefly, the case of the plaintiff is that the first defendant borrowed a sum of Rs.4 lakhs on 10.7.1998, and executed a registered mortgage deed in respect of the immovable property in favour of the plaintiff and commencing from 11.7.1998, 13.7.1998, 15.7.1998, 17.7.1998 and 26.11.1998, the defendants had borrowed money from the plaintiff and her family members, friends and relatives and have executed the suit pronotes for their favour, for various amounts borrowed from them, and thereafter, various pronotes have been duly assigned in favour of the plaintiff who had settled the holdees of the pronotes and have taken over the rights accrued under the pronotes and under the memorandum of agreements and the claims have been clubbed as single account and the defendants are having a running account with regard to the various amounts received from the plaintiff and the body of creditors and the defendants committed default in making the payments and hence the plaintiff filed the suit.
4.The second defendant remained ex-parte and the first defendant alone has filed written statement mainly contending that the present mortgage suit is a suit on immovable property and it could not be filed on the original side of this Court as the property is situated outside its jurisdiction and the plaintiff and the second defendant have hatched a conspiracy to create false documents to usurp the property from the first defendant and there is misjoinder of cause of action and the suit claim is not true and prayed for the dismissal of the suit.
5.The suit was filed in the year 2001. Originally, six issues were framed and the husband of the plaintiff by name Hariharan, filed proof affidavit as P.W.1, in lieu of chief-examination; but, before cross-examination, he died on 1.10.2010, and the plaintiff as P.W.2, filed proof affidavit on 1.11.2010, and Exs.P1 to P28 came to be marked on her side. Thereafter, the first defendant filed application in A.No.1400/2011 and sought for framing of the following additional issues and to direct the same to be tried as preliminary issues. Issue No.1
Is the suit based on a registered simple mortgage in respect of a property situated outside the jurisdiction of this Hon'ble Court maintainable as framed?
Is not the suit bad for misjoinder of several causes of action inasmuch as the plaintiff has combined in the suit several promissory notes (numbering to 21) executed only by the second defendant in favour of several individuals in one suit such that it is contrary to order II Rule 3 of C.P.C.?
6.In the affidavit filed in support of the application, the applicant/first defendant has stated that the property mortgaged, is at Door No.162-16, First Street, Ravi Colony, St. Thomas Mount, Chennai 600 016 and the original side of this Court has no territorial jurisdiction over it and equally, several diverse/multifarious causes of action have been clubbed in one suit by the plaintiff, which is contrary to Order II Rule 3 of C.P.C., and both issues have to be tried as preliminary issues. The second respondent/plaintiff filed counter affidavit stating that the application is misconceived, unsustainable and untenable both in law and on facts and hence liable for rejection.
7.Learned Single Judge elaborately considered the first issue as to whether the suit based on registered simple mortgage, in respect of the property situated outside the jurisdiction of the original side of this Court, is maintainable as framed, and concluded that the suit is not one for land and it is very well maintainable before this Court. Insofar as the second issue as to whether the suit is bad for misjoinder of several causes of action is concerned, learned Single Judge held that the said issue has to be decided by the Court on appreciation of evidence to be let in and it is a mixed question of fact and law and cannot be tried as a preliminary issue and hence, dismissed the application.
8.Mr.B.Kumar, learned Senior Counsel appearing for the appellant, submits that the present suit is to enforce the mortgage or a charge on an immovable property, and it would be a suit for land and so, not cognizable by this Court in its ordinary original civil jurisdiction, as the subject property is situated outside the territorial jurisdiction. In support of his submission, he relied on the decision of the Supreme Court in ADCON ELECTRONICS PVT. LTD. V. DAULAT AND ANOTHER ((2001) 7 SCC 698) and the decision of the Division Bench of this Court in THAMIRAPARANI INVESTMENTS PVT. LTD. V. META FILMS PVT. LTD. (2006 (1) CTC 270).
9.Per contra, Mr.R.Thiagarajan, learned Counsel appearing for the caveator/second respondent, submits that the present suit does not involve determination of title or possession or control of land and it is a suit to recover money due under a mortgage and therefore, it cannot be classified as a suit for land and it is maintainable on the original side of this Court. In support of his submission, he relied on the decisions of the Division Bench of this Court in SOUTHERN PETROCHEMICAL INDUSTRIES CORPORATION LTD. V. DURGA IRON WORKS AND THREE OTHERS (1995 (II) CTC 602) and in A.C. SUBBA REDDY V. JAWAHAR INTERNATIONAL TRADING CORPORATION COMPANY (2008 (4) CTC 160).
10.We considered the rival submissions and perused the decisions cited by both sides.
11.It is not in dispute that the mortgaged property in the present suit, is situated outside the territorial jurisdiction of the original side of this Court. The Supreme Court in the decision in Adcon Electronics Pvt. Ltd. Case referred above, was considering the import of the expression suit for land while dealing with a suit filed for specific performance of contract for sale of immovable property, in which, possession was not sought for as relief, and in those circumstances, Their Lordships held that the suit is only for specific performance of agreement for sale of the property, wherein the relief of delivery of the suit property has not been specifically claimed, and hence it cannot be treated as a suit for land and in its true sense, it is a suit for enforcement of the terms of contract. For better understanding, the observations made in the decision ((2001) 7 SCC 698), are extracted below: 13. In Moolji Jaitha and Co. v. Khandesh Spg. and Wvg. Mills Co. Ltd. (AIR 1950 FC 83) there is divergence of opinion among the learned Judges of the five-Judge Bench of the Federal Court in regard to the import of the expression suit for land . The Chief Justice Kania opined: (AIR p. 89, para 15) Taking the suit as a whole, one has to consider 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. Justice Fazl Ali observed: (AIR p. 96, para 47)
If I had really felt that I was called upon to decide it, I would have agreed with the line of cases in which it has been held that, broadly speaking, the expression suit for land covers the following three classes of suits: (1) suits for the determination of title to land; (2) suits for possession of land; and (3) other suits in which the reliefs claimed, if granted, would directly affect title to or possession of land. Justice Patanjali Sastri took the view: (AIR p. 97, para 53)
The words in question, 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 the title to immovable property or a determination of any right or interest therein. Justice Mahajan observed: (AIR p. 105, para 81)
If an attempt is made to find a comprehensive definition of the phrase, it will eventually be discovered that it has created further complications. I therefore content myself by saying that where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of land or immovable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression. He added: (AIR p. 110, para 102)
In my opinion, if the suit is for specific performance and a decree for possession of the land sold is claimed, such a suit would certainly be a suit for land; but if the suit is simpliciter for specific performance, i.e., for the enforcement of the contract of sale and for execution of a conveyance, in that event there can be no good ground for holding that such a suit is a suit for determination of title to land or that the decree in it would operate on the land. In that view he expressed his agreement with the decision of the Full Bench of the Madras High Court in P.M.A. Velliappa Chettiar v. Saha Govinda Doss (AIR 1929 MADRAS 721). Justice Mukherjea perceived: (AIR p. 119, para 142)
It seems to me fairly clear that the expression suit for land occurring in clause 12 Letters Patent, means a suit which is instituted with the object of establishing claims regarding title to the property or possession of it. Whether or not possession is claimed, if title to any immovable property is to be directly affected by the result of the decision, the suit would be a suit for land.
14. In Debendra Nath Chowdhury v. Southern Bank Ltd. (AIR 1960 CALCUTTA 626), a Division Bench of the Calcutta High Court took the view that the suit for specific performance of the contract to execute and register a lease with alternative claims for damages is not a suit for land within the meaning of clause 12 of the Letters Patent.
15. From the above discussion it follows that a suit for land is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a suit for land or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a suit for land . We are in respectful agreement with the view expressed by Mahajan, J. in Moolji Jaitha case (AIR 1950 FC 83).
12.It is relevant to point out that the Supreme Court in the above decision, considered the ratio in the decision of the Federal Court in Moolji Jaitha and Co. case and also the decision of the Division Bench of this Court in P.M.A. Velliappa Chettiar case and concluded that if the relief relates to adjudication of title to land or immovable property or delivery of possession of the land, it will be a suit for land.
13.The interpretation of expression suit for land or other immovable property occurred in Clause 12 of the Letters Patent, came before the Division Bench of this Court on reference, in the case in SOUTHERN PETROCHEMICAL INDUSTRIES CORPORATION LTD. V. DURGA IRON WORKS AND THREE OTHERS (1995 (II) CTC 602) and the Division Bench relied on the decision of the Federal Court in Moolji Jaitha and Co. case and also the Division Bench decision of this Court in Velliappa Chettiar case, both referred to above, and held that the suit for recovery of amount due on mortgage, in respect of the property situated outside the jurisdiction of the original side of this Court, cannot be classified as a suit for land. For better appreciation, the relevant observations of the Division Bench in paragraph No.6 of its decision, are extracted below: 6. As we could see from the views of the learned Judges of the Federal Court, the relevant tests to be remembered and applied to find out as to whether the suit is one for land are: (1) Whether the suit involves determination of right, title or interest in land; or (2) whether the suit involves recovery of possession or control of land. In a suit to recover money due under a mortgage, when we apply the above tests, it is not possible to say that the suit will come within the mischief of any of the above tests. There may not be a determination of title to the land as such. Equally so, there may not be straightway a decree for recovery of possession of land. Primarily the decree will be one for recovery of money. Only when there is a default, a final decree may ensue permitting recourse to the land in satisfaction of the money claim. Even then, there is no determination of title to the land and there is no decree for recovery of possession. It is only at the time of execution, a need to advert to these questions may arise, on contingencies therefor presenting themselves. Shanmukham, J. in State Industries Promotion Corporation of Tamil Nadu Ltd. v. M/s. Arvind Distillery and Chemicals Ltd., Madras and others (AIR 1982 Madras 273) adverted to the pronouncements of the Full Bench of this Court in Velliappa Chettiar and others v. Saha Govinda Doss and others (AIR 1929 Madras 721) and the pronouncement of the Federal Court in Moolji Jaitha and Co. v. K.S. and W.Mills Co. (AIR (37) 1950 Federal Court 83) and held that the suit for recovery of amount due on mortgage in respect of properties situate outside the jurisdiction of the original side of this Court cannot be classified as a suit for land. The learned Judge approached the question as follows: In this case the suit is not for recovery of possession, nor is the question of the title to the land involved even indirectly. Indeed, till execution is levied there is need for the Court to deal with any question relating to the property, all that the Court has to decide is the amount due on the mortgage. Further even in execution, the Court is in no way concerned with the possession of the property or the title to the property. We approve the view of Shanmukham,J. on this question. M.Srinivasan,J. in his order of reference, is of the view that the observations neither in the pronouncement of the Full Bench in Velliappa Chettiar and others v. Saha Govinda Doss and others (AIR 1929 Madras 721) nor in the pronouncement of the Federal Court in Moolji Jaitha and Co. v. K.S. and W.Mills Co. (AIR (37) 1950 Federal Court 83) can be stated to have the effect of overruling the view of Moore,J. in Nalum Lakshimikantham and another v. Krishnaswamy Mudaliar and others ((1904) ILR 27 157). Our analysis of the principles and tests laid down by the Full Bench of this Court and of the Federal Court to govern the question leaves no room for doubt in our mind, that the view of Moore, J. in Nalum Lakshimikantham and another v. Krishnaswamy Mudaliar and others ((1904) ILR 27 157) and the view of the other subsequent pronouncements, already referred to, which seem to have fallen in line with the thinking of Moore,J. cannot survive on this question.
14.In our considered view, the ratio of the Division Bench in the above decision, governs the field, and we are in respectful agreement with the same. In fact, both the decisions were cited before the learned Single Judge and accepting the ratio therein, it has been concluded that the suit is maintainable.
15.Insofar as the decisions of the Division Bench of this Court in Thamiraparani Investments Pvt. Ltd. case as well as in A.C. Subba Reddy case, are concerned, the suits concerned therein, were not in respect of mortgage; but, one is for bare injunction and the other is for specific performance and permanent injunction, and the observations made therein, are not contra to the decision in Southern Petrochemical Industries Corporation Ltd. case referred to above. We are in entire agreement with the view of the learned Single Judge that the present suit for recovery of amount due on mortgage, in respect of the property situated outside the jurisdiction of this Court, cannot be classified as a suit for land and hence it is maintainable on the original side of this Court.
16.Learned Senior Counsel appearing for the appellant, in the course of his arguments, submits that insofar as Issue No.2 regarding the misjoinder of several causes of action is concerned, it has been left open to be decided in the trial of the suit and he is not canvassing the correctness of the same in this appeal. The said submission is recorded.
17.For the foregoing reasons, we find no merit in this appeal and it is liable to be dismissed.
18.In the result, this original side appeal is dismissed and the order of the learned Single Judge is confirmed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is also dismissed.