Shivnarayan (D) by Lrs. vs Maniklal (D) Thr. Lrs. & Ors.

ss. 16, 17 and 39(1)(c); Order II rr. 2 and 3 – Suit before the Court in Indore – In respect of two properties (One at Indore and another at Mumbai) – Seeking declaration of Will in favour of defendant Nos. 4 to 6 as null and void; seeking declaration of sale deed, in respect of Mumbai property, in favour of defendant Nos. 7 and 8 as null and void; and seeking declaration of transfer documents in respect of Indore property in favour of defendant Nos. 9 and 10 as null and void – Application filed by defendant Nos. 7 and 8 seeking dismissal of suit against them for want of territorial jurisdiction and for misjoinder of parties and cause of action – Trial court struck out the pleadings in respect of the property in Mumbai and relief related thereto, holding that separate cause of actions cannot be combined in a single suit – High Court upheld the order of trial court – On appeal, held: Section 16 lays down general principle that suits are to be instituted where subject-matter is situated – Section 17 engrafts exception to the general rule that suit may be instituted in any court within local limits of whose jurisdiction any portion of the property is situated – The word ‘property’ has to be used as plural i.e. ‘properties’ by virtue of s. 13 of General Clauses Act – The expression ‘only portion of the property’ can be read as portion of one or more properties situated in jurisdiction of different courts and can also be read as portion of several properties situated in jurisdiction of different courts – However, there is one rider that suit should be based on same cause of action with respect to the properties situated in jurisdiction of different courts – In the present case the suit contained three set of defendants with different cause of action for each set of defendants for two properties situated in two jurisdictions – Different cause of action could not have been clubbed together – The suit with regard to the Mumbai property was not maintainable – Order II, r. 2 cannot A be read in a manner as to permit clubbing of different cause of action in a suit – Rule 3 of Order II permits clubbing different causes of action against the same defendant or defendants jointly while in the present case suit is against different set of defendants – Therefore, the application filed by defendant Nos. 7 and 8 was rightly allowed – General Clauses Act, – s. 13. Dismissing the appeal, the Court

HELD: 1.1 Sections 16 and 17 of the C.P.C. are part of the one statutory scheme. Section 16 contains general principle that suits are to be instituted where subject-matter is situate whereas Section 17 engrafts an exception to the general rule as occurring in Section 16. [Para 28][21-E-F]

1.2 The word ‘property’ occurring in Section 17 although has been used in ‘singular’ but by virtue of Section 13 of the General Clauses Act it may also be read as ‘plural’, i.e., D “properties”. Section 17 can be applied in event there are several properties, one or more of which may be located in different jurisdiction of courts. The word “portion of the property” occurring in Section 17 has to be understood in context of more than one property also, meaning thereby one property out of a lot of several properties can be treated as portion of the property as occurring in Section 17. Thus, interpretation of word “portion of the property” cannot only be understood in a limited and restrictive sense of being portion of one property situated in jurisdiction of two courts. The expression any portion of the property can be read as portion of one or more properties situated F in jurisdiction of different courts and can be also read as portion of several properties situated in jurisdiction of different courts. [Paras 11, 28(i) and 28(ii)][13-C-D, 21-F-G]

1.3 A suit in respect to immovable property or properties situate in jurisdiction of different courts may be instituted in any G court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated. A suit in respect to more than one property situated in jurisdiction of different courts can be instituted in a court within local limits of jurisdiction where one or more properties are situated provided suit is based on same cause of action with respect to the properties situated in jurisdiction of different courts. [Paras 28(iii) and 28(iv)][21-H, 22-A-B]

1.4 The scheme as delineated by Section 39 of CPC indicates that a decree of Court may include immovable property situate in local limits of that Court as well as property situated outside the local limits of the jurisdiction of the Court passing the decree. Section 39(1)(c) re-enforces the conclusion that as per Section 17, suit may be filed with regard to immovable property situated outside the local limit of the jurisdiction of the Court. However, passing a decree by a Court with regard to immovable property situate outside the local jurisdiction of the Court passing the decree may not only confine to Section 17 but there may be other circumstances where such decree is passed. Section 20 of C.P.C. may be one of the circumstances where decree can be passed against the defendant whose property may situate in local jurisdiction of local limits of more than one Court. [Para 23][20-A-C]

1.5 Section 17 uses the words ‘the suit may be instituted in any Court’. The use of word in Section 17 makes it permissive leaving discretion in some cases not to file one suit with regard to immovable property situated in local jurisdiction of more than one court. One of the exceptions to the rule is cases of partial partition where parties agree to keep some property joint and get partition of some of the properties. [Para 24][20-D-E] Nilkanth Balwant Natu and Others v. Vidya Narasinh Bharathi Swami and Others AIR 1930 PC 188;

Nrisingha Charan Nandy Choudhry v. Rajniti Prasad Singh and Others AIR 1936 PC 189 – relied on.

Rajendra Kumar Bose v. Brojendra Kumar Bose AIR 1923 Calcutta 501; Kubra Jan v. Ram Bali and Others (1908) ILR 30 All. 560; Ramdhin and Others v.

Thakuran Dulaiya and Others AIR 1952 Nag. 303 (Full Bench); Basanta Priya Dei and Another v. Ramkrishna Das and Others AIR 1960 Ori. 159; Laxmibai v.

Madhankar Vinayak Kulkarni and Others AIR 1968 Kant. 82; Prem Kumar and Others v. Dharam Pal Sehgal and Others AIR 1972 Delhi 90; Janki Devi v. Mannilal and Others AIR 1975 All. 91; Sardar Nisar Ali Khan v. Mohammad Ali Khan AIR 1932 PC 172; Karan Singh and Others v. Kunwar Sen and Others AIR 1942 All. 387; Smt. Janki Devi v. Manni Lal and Others AIR 1975 All. 91 – referred to.

2.1 In the prsent case, the suit filed by the appellant contained three different sets of defendants with different causes of action for each set of defendants. Defendant Nos. four to six are defendants in whose favour Will was executed. In the plaint, the Will was sought to be declared as null and void. The second cause of action in the suit pertains to sale deed executed in favour of defendant Nos.7 and 8 with regard to Bombay property. The third set of cause of action relates to transfer documents relating to Indore property which was in favour of defendant Nos.9 and

10. The transfer documents dated 21.10.1986, 21.11.1988 and 20.08.1993 are relating to Indore property. The plaint encompasses different causes of action with different set of defendants. The cause of action relating to Indore property and Bombay property were entirely different with different set of defendants. The suit filed by the plaintiff for Indore property as well as Bombay property was based on different causes of action and could not have been clubbed together. The suit as framed with regard to Bombay property was clearly not maintainable in the Indore Courts. The trial court did not commit any error in striking out the pleadings and relief pertaining to Bombay property. [Para 29][22-C-F]

2.2 The cause of action according to Order II Rule 2 subclause (1) is one cause of action. What is required by Order II Rule 2 sub-clause (1) is that every suit shall include the whole of the claim on the basis of a cause of action. Order II Rule 2 cannot be read in a manner as to permit clubbing of different causes of action in a suit. A perusal of sub-clause (1) of Order II Rule 3 provides that plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly. What is permissible is to unite in the same suit several causes of action against the same defendant, or the same defendants jointly. In the present case suit is not against the same defendant or the same defendants jointly. There are different set of defendants who have different causes of actions. [Para 30][22-G-H, 23-A-B]

2.3 In the application filed by defendant Nos. 7 and 8, the heading of the application itself referred to “mis-joinder of parties and causes of action”. In the application, it was categorically mentioned that there was mis-joinder of parties and causes of action. The trial court in its order has also clearly held that plaintiff has clubbed different causes of action which is to be deleted from the present suit. The trial court further held that the plaintiff is not justified in including different properties and separate cause of actions combining in single suit. Therefore, it cannot be said that defendant Nos. 7 and 8 in their application had not questioned the cause of action. [Para 31, 32][23-C-E]

2.4 The trial court has rightly allowed the application filed by the defendant Nos.7 and 8. The High court did not commit any error in dismissing the writ petition. [Para 33][23-E-F]