Narianlal Jethwani and Another vs Gordanlal Jethwani and Another

Veena Birbal, J.

CM No. 802/2012 (exemption)

Exemption as prayed is allowed subject to just exceptions.

Application stands disposed of.

FAO 24/2012 & CM 801/2012 & 803/ 2012

By way of present appeal, appellant has challenged the order dated 10th August, 2011 by which the suit of the appellant declaring family settlement as null and void and consequential relief therefrom, has been dismissed by the trial court by holding that the Delhi court has no territorial jurisdiction to try the said case.

Appellant had filed a suit bearing no.101/2005 which was later on renumbered as Suit No.247/2011 before the District Judge, Delhi making a prayer that the family settlement between the parties be declared null and void and a decree be passed by partitioning the property at 78, Shopping Centre, Kota, Rajasthan.

Prior to aforesaid suit, suit no.46/2003 was filed for similar reliefs in District Court, Kota, as a result of which, proceedings in suit no.247/2011 pending before the learned ADJ, Delhi were stayed.

Perusal of record shows that in the meantime another suit bearing no.209/2007 by one of the parties claiming similar reliefs of partition and possession was filed. Thereafter, suit no.398/2008 was filed for similar reliefs by appellant no.2 Mrs. Sushila Jethwani alias Kiran Kriplani for possession of a disputed shop which is existing at plot no.78, Shopping Centre, Kota. In the said suit, an application was moved by one of the defendants under Order 7 Rule 10/10-A & 11 CPC which was dismissed by the learned ADJ, Delhi. Aggrieved with the said order, CRP No. 12/ 2009 was filed before this court wherein this court has held that the subject matter of. the suit is the immovable property situated at Kota, as such a suit could only be filed in the Court within the local limits of whose jurisdiction the property is situated by virtue of Section 16 CPC and had set aside the order of the learned ADJ and the said suit was held to be not maintainable. The relevant portion of the order of this court dated 12.8.2009 as noted in the impugned order is as under:-

...By the impugned order, the said application has been rejected. Learned counsel for the petitioner submits by reference to the plaint that the suit was filed in respect of the immovable property situated in Kota, Rajasthan. In fact the respondent-plaintiff had earlier preferred a suit in the Court of the Civil Judge, Kota being suit No. 209/2007. In the said suit, the application preferred by the defendant seeking appropriate valuation of the suit was allowed and the plaintiff was directed to revalue the suit appropriately. Since that direction was not complied with, the suit itself was rejected under Order 7 Rule 11(b) CPC. It is only thereafter that the suit in question was filed before the District Judge, Delhi.

The respondent who appears in person states that in respect of another suit filed pertaining to the same properly in the court of the District Judge, Delhi, wherein the petitioner herein is also a party-defendant, no such objection with regard to the territorial jurisdiction has been raised by the petitioner-defendant. He submits that the present suit is a cross suit filed by the respondent herein to be tried alongwith the earlier suit which is pending before the District Judge. Learned counsel for the petitioner points out that the earlier suit already stands stayed u/s 10 CPC on account of the pendency of the proceedings filed even earlier before the competent court at Kota.

I have heard the arguments of both the sides and I am of the view that the learned ADJ has failed to exercise the jurisdiction vested on him while considering the application filed by the petitioner-defendant under Order 7 Rule 10-A & 11 CPC. A bare perusal of the plaint would show that the only substantial relief surviving in the suit read as follows:-

declaring, that the defendant no. 1 is/was, as the case may be, holding the said property of the plaintiff illegally and without any title as a trespasser, under the active knowledge, instance and collusion of the defendant no. 2 and,

that, the defendant no. 1 be directed to hand over the possession of the disputed shop as marked RED in the map, i.e. the shop at main road adjacent to the back lane of 78, Shopping Center, Kota, to the plaintiff and....

The subject matter of the suit is the immovable property situated at Kota. Such a suit could only be filed in the Court within the local limits of whose jurisdiction the property is situated by virtue of Section 16 C.P.C. Merely because a part of the cause of action is stated to have arisen in Delhi, the court in Delhi cannot assume jurisdiction by resort to Section 20 C.P.C. Section 20 C.P.C. is subject to the limits "as aforesaid" which means it is subject to Section 16 C.P.C. In this view of the matter the suit filed by the respondent-plaintiff before the Court of the District Judge, Delhi is not maintainable and the application of the petitioner under Order 7 Rule 10/10A/11 deserves to be allowed. The petition stands disposed of. The trial court shall pass necessary orders in compliance of this order.

Taking that into account, Suit No.247/ 2011 has not been entertained by the learned ADJ.

Learned counsel for the appellant has contended that issues were already framed in the matter, as such, the court should have dealt with the matters on merits instead of not entertaining the suit on the ground of territorial jurisdiction.

It may be noticed that issues were framed on 13th September, 2010 after the orders were passed by this court in C.R.P. No.12/2009. The issues were only preliminary issues relating to jurisdiction of this court.

There is no denial that earlier suit was filed in respect of one of the shops at Plot No.78, Shopping Centre, Kota which is alleged to be a part of the family settlement which has been challenged in the suit wherein the present appeal has arisen.

The issue of territorial jurisdiction has already been decided by this court in CRP No.12/2009 passed in Suit No.398/2008 in respect of part of property which is also subject matter of present suit. The said order has not been challenged. Keeping that order in view, the learned ADJ has rightly decided the issues. I find no infirmity or illegality in the impugned order which calls for interference of this court.

Appeal stands dismissed.