Harshad
Chimanlal Modi Vs. Dlf Universal Ltd. & ANR [2005] INSC 692 (14 December
2005)
ARIJIT
PASAYAT & C.K. THAKKER
INTERLOCUTORY
APPLICATION NO.3 IN CIVIL APPEAL NO. 2726 OF 2000 C.K. Thakker, J.
This
interlocutory application is filed by the applicant/ appellant in a disposed of
appeal. The applicant was the original plaintiff who instituted a suit on the
Original Side of the High Court of Delhi for declaration, for specific
performance of agreement, for possession of property and for permanent
injunction. The suit was filed in 1988. Written statement was filed by the
defendants- respondents in 1989 contesting the claim of the plaintiff on merits
but without raising any objection as to jurisdiction of the Court. The
jurisdiction of the Court was 'admitted'. The suit was then transferred to
District Court, Delhi in 1993. In 1997, issues were framed which did not
include issue as to jurisdiction of the Court as it was not disputed by the
defendants. After more than eight years of filing of the written statement,
however, an application was filed by the defendants under Order 6, Rule 17 of
the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code')
seeking an amendment in the written statement by raising an objection as to
jurisdiction of the Court. It was contended that the suit was for recovery of
immovable property situated in Gurgaon District. Under Section 16 of the Code,
such a suit for recovery of property could only be instituted within the local
limits of whose jurisdiction the property was situated. Since the property was
in Gurgaon, Delhi Court had no jurisdiction. The said application was allowed
in spite of objection by the plaintiff.
On the
basis of the amended written statement, an additional issue was framed by the
trial Court as to the jurisdiction of Delhi Court to entertain and try the
suit. After hearing the parties, the trial Court held that the suit was covered
by Clause (d) of the Section 16 of the Code and Delhi Court had no jurisdiction
as the property was situated at Gurgaon. Accordingly, the plaint was ordered to
be returned to the plaintiff for presentation to proper Court. The said order
was confirmed by the High Court as well as by this Court. (See Harshad Chimanlal
Modi v. DLF Universal Ltd. & Anr.; (2005) 7 SCC 791).
In the
present application, it is stated by the applicant that when he approached this
Court against the judgment and order of the High Court of Delhi, notice was
issued on December 6, 1999 and status quo was ordered to be maintained. On
April 17, 2000, leave was granted and the operation of the judgment of the High
Court was stayed. The Additional District Judge, Tis Hazari, Delhi was allowed
to proceed with the suit. It was, however, stated that the Court would not
deliver judgment 'until further orders'. According to the applicant, in
pursuance of the said order, the trial Court proceeded with the suit, pleadings
were completed by the parties, evidence was led and the matter was ready for
final arguments and for disposal. It is further stated that an order was passed
by the District Court on April 11, 2005 declaring that the defendants' evidence
was closed but since the judgment could not be pronounced in the light of
direction issued by this Court on April 17, 2000, the suit was adjourned sine
die. This Court finally decided the appeal and delivered the judgment on
September 26, 2005 confirming the order passed by the trial Court as well as by
the High Court. According to the applicant, now the suit will have to be tried
and decided by the Gurgaon Court. Since 17 years have passed from the
institution of the suit and the pleadings are complete, evidence is recorded
and the arguments are over, this Court may direct the Gurgaon Court to take up
the suit from the stage at which it stands transferred and to decide it
expeditiously.
The
application is resisted by the respondent by filing a counter. It is contended
that the application is not maintainable as it is misconceived. According to
the respondent, in the guise of interim application, the appellant is seeking
review of the judgment of this Court. Such a prayer was made when the appeal
was heard by this Court, but the prayer was not granted. According to the
respondents, this Court held that there was inherent lack of jurisdiction in
Delhi Court and since the subject matter of the suit was immovable property and
the prayer in the plaint related to recovery of possession of such property,
the only Court which had jurisdiction was Gurgaon Court where the property was
situated. In view of the settled legal position, the Court directed return of
the plaint for presentation to proper Court.
According
to the respondents, when the plaint will be presented before Gurgaon Court, it
would not be treated as continuation of proceedings of the Court which had no
jurisdiction but a suit would commence on the day when the plaint would be
presented to the proper Court. Hence, the prayer made by the applicant to
direct Gurgaon Court to try suit from the stage at which it was in Delhi Court
cannot be granted. The application, therefore, deserves to be dismissed.
A
rejoinder is filed by the applicant submitting that in case of transfer of a
suit for want of jurisdiction, the Code provides the transferee Court to
proceed with the suit from the stage at which it has been transferred. The
applicant asserted that proceedings before Delhi Court were not null and void.
Precisely for that reason, at the time of hearing of Special Leave Petition,
this Court allowed the trial Court to proceed with the suit and the only order
passed by the Court was not to pronounce judgment "until further
orders". It was, therefore, submitted that this is immensely a fit case to
exercise inherent powers under Section 151 of the Code and plenary powers under
Article 142 of the Constitution for grant of the prayer of the applicant.
Having
heard the learned counsel for the parties, in our opinion, the application is
ill-founded and deserves to be dismissed. It may be stated that in Civil Appeal
which was decided by us on September 26, 2005, we have held that since the
dispute related to immovable property and the prayer was for specific
performance of an agreement of sale of immovable property and recovery of
possession thereof, the relevant provision was Section 16 of the Code.
Under
Clause (d) of the said section, only Gurgaon Court had jurisdiction. We also
held that notwithstanding the agreement between the parties that only Delhi
Court had jurisdiction, the said clause could not operate as Section 20 of the
Code could not be invoked. According to us, Section 20 would apply where two or
more courts had jurisdiction and the parties by an agreement consented that one
of such courts would try the suit. Since Delhi Court had no jurisdiction, the
contention of the defendants was upheld and the plaint was ordered to be
returned to the plaintiff for presentation to the proper Court.
The
learned counsel for the respondents is also right in submitting that a similar
prayer, which is made in the present application, was sought at the time of
hearing of the Appeal, but it was not granted.
In our
opinion, the provisions of Section 24 and/or Section 25 of the Code have no
application to the case on hand. The respondents are right in urging that this
is not a case of 'transfer' of a suit but of lack of jurisdiction of the Court.
Likewise, the provisions of Rule 15 of Order 18 also cannot be pressed in
service which covers those cases where a successor judge deals with the
evidence recorded by his predecessor and proceeds with the suit from the stage
at which it was left by his predecessor.
We may in
this connection refer to a decision of this Court in Amar Chand Inani v. Union
of India (1973) 1 SCC 115 : AIR 1973 SC 313. In that case, the plaintiffa
practising advocate, sustained serious injuries in a railway accident while
travelling by a train. He instituted a suit for damages in Karnal Court which
was then transferred to Panipat Court. The plaint was, however, returned for
presentation to proper Court since Panipat Court had no jurisdiction to hear
the suit. In pursuance of the said order, the plaint was presented to Ambala
Court. At the time of presentation of the plaint to Ambala Court, an objection
was raised that the suit was barred by limitation.
The question
before the Court was as to whether the suit was filed within the period of
limitation. This Court held that since the Karnal Court had no jurisdiction to
entertain the suit, it was not a proper Court. The submission that the suit
instituted in Ambala Court after the plaint was returned from Karnal Court
should be deemed to be a continuation of the suit filed in Karnal Court had
been negatived.
Considering
the provisions of the Limitation Act and Order 7, Rule 10 of the Code, the
Court stated:
"It
was, however, argued by Counsel for the appellant that the suit instituted in
the Trial Court by the presentation of the plaint after it was returned for
presentation to the proper Court was a continuation of the suit filed in the
Karnal Court and, therefore, the suit filed in Karnal Court must be deemed to
have been filed in the trial Court. We think there is no substance in the
argument, for, when the plaint was returned for presentation to the proper
Court and was presented in that Court, the suit can be deemed to be instituted
in the proper Court only when the plaint was presented in that Court. In other
words, the suit instituted in the Trial Court by the presentation of the plaint
returned by the Panipat Court was not a continuation of the suit filed in the
Karnal Court". (emphasis supplied) Reliance placed on behalf of the
applicant on a decision in Joginder Tuli v. S.L. Bhatia & Anr. (1997) 1 SCC
502 does not carry the case any further. In that case, the suit when filed was
within the jurisdiction of the Court and it was properly entertained. In view
of amendment in the plaint during the pendency of the suit, however, the plaint
was returned for presentation to proper Court taking into account the pecuniary
jurisdiction of the Court. Such is not the situation here. As we have already
held in the appeal, the suit could not have been instituted in Delhi Court
keeping in view the subject matter which was immovable property and recovery of
possession thereof. Considering all these factors, we had not granted the
prayer made at the time of hearing of the appeal which has been made in this
application. The application, therefore, cannot be allowed and the prayer
cannot be granted now.
For the
foregoing reasons, the application deserves to be dismissed and is accordingly
dismissed, however, with no order as to costs.
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