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ARDEE Infrastructure Private Ltd. and Ors. Vs. Prabha Kapoor and Ors. - (High Court of Jammu and Kashmir) (07 Apr 2018)

Jurisdiction of the Court is required to be determined with respect to the situs of the property

MANU/JK/0273/2018

Civil

In facts of present case, the Respondents filed a suit for declaration seeking to declare a communication dated 04th October, 2013 issued by Petitioner No. 1 as nullity and inoperative in the eyes of law and also for declaring the Respondents entitled to title, rights and interest in the under construction Flat No. A1-703 as per the Agreement dated 11th August, 2005 entered into between the parties. The Respondents also claimed a decree of consequential relief of specific performance, mandatory injunction and permanent prohibitory injunction. In response to the summons issued by the trial Court, the Petitioners appeared and moved an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for rejection of the plaint, primarily, on the ground that the suit property, which is a Flat, is situated in Gurgaon (Haryana) and, therefore, the Courts in Jammu including the trial Court would have no jurisdiction to entertain the suit and pass the decree prayed for. In support of their contentions, the petitioners relied upon Section 16 of the CPC. The said application was opposed by the respondents on the ground that, since the Agreement between the parties was executed in Jammu, all the payments were made from Jammu and a communication dated 4th October, 2013 sent by the petitioners too was received by the respondents in Jammu, therefore, a part of cause of action has accrued in Jammu which is good enough to confer jurisdiction on the Courts in Jammu including the trial Court. Reliance was placed on Section 20 of CPC.

Trial Court appears to have considered the matter at some length and ultimately came to the conclusion that it had jurisdiction to entertain the suit and grant the relief prayed for. The order of the trial Court impugned in this petition is assailed by the petitioners in this petition on the ground that the trial Court has failed to appreciate the distinction between Section 16 and Section 20 of the CPC. It is submitted that the pith and substance of the suit of the petitioners is for specific performance of contract pertaining to immovable property and that being so, the jurisdiction of the Court would be regulated by Section 16 and not Section 20 of the CPC. Elaborating his arguments, learned counsel for the petitioners submits that Section 20 of the CPC would operate only with respect to the suits other than those categorized in Section 16 of the CPC.

From a bare reading of Sections 16 and 20 of CPC, it is clear that the suits for recovery of immoveable property with or without rent or profits, for partition of immoveable property; for foreclosure, sale or redemption of a mortgage pertaining to immoveable property; for compensation for wrong to the immoveable property; and for determination of any other rights or interest in the immoveable property etc. are to be instituted where the subject matter is situated. However, the suits of the categories other than those mentioned in Sections 16, 17, 18 & 19 of the CPC, are to be instituted in a Court within the local limits of whose jurisdiction, besides others, the cause of action wholly or in part accrues.

The Court is called upon to read the plaint as a whole to find out whether it discloses cause of action against the Defendants or not. What is a "cause of action" is a question of fact which has to be gathered on the basis of averments made in the plaint in entirety. A "cause of action" is every fact, which traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court"

The suit of the Respondents is essentially for determination of their rights and interest in the immoveable property and, therefore, falls in Section 16 (d) of the CPC. That being so, the suit pertaining to the determination of rights and interest in the immoveable property which is situated in Gurgaon would lie in a Court in Gurgaon within whose territorial jurisdiction the aforesaid under construction flat or the land where it is being constructed is situated. The suit of the Respondents falls within the ambit of Section 16 of CPC and the jurisdiction of the Court is required to be determined with respect to the situs of the subject matter. The order of the trial Court is set aside. Petition allowed

Tags : SUIT   SITUS   JURISDICTION  

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