Suit No. 997 of 1983

21st December, 2011

Petitioner Counsel: Mr. J.V. DAVE with Mr. L.H. PATIL
Respondent Counsel: Mr. C. BHARUCHA with Ms. A.B. KAPADIA i/b D.F & DIWAN, Mr. C.M.KORDE, Sr. Advocate with Ms. PRIYA AGGARWAL and MRUNALI PANCHAL i/b M/s. HALAI & CO.

Cases Cited:
Adcon Electronics Pvt.Ltd. Vs. Daulat & Anr., 2001(4) ALL MR 479 (S.C.) [Para 6]

JUDGMENT

JUDGMENT :- A short but interesting question of law that arises for my consideration in this suit is:

"Whether the High Court of Bombay would have a jurisdiction to entertain and try a suit for specific performance of a contract for sale and possession of a property situate outside the limits of its original civil jurisdiction, if leave under Clause XII of the Letters Patent is obtained prior to the filing of the suit?"

2. One Ratanchand Hirachand was an owner of certain agricultural lands situate at Aundh in Taluka Haveli in Registration District Pune. (for short "the suit land"). According to the plaintiffs, under an oral agreement for sale, terms of which are recorded in a draft agreement for sale (Exhibit-J to the plaint), Ratanchand agreed to sell the suit land to them. On refusal of the defendants to sell the plaintiffs filed the present suit for specific performance of the oral agreement for sale against defendant nos.1 to 5 after obtaining a leave under Clause XII of the Letters Patent. Defendant nos.1 and 2 were joined as executors of the will of Ratanchand and defendant nos.3 and 4 were joined as legatees/beneficiaries under the will. Defendant no.5 who was a receiver of the suit land appointed in some other proceeding (High Court Suit No.304/54) was also joined as a party. Subsequently, the plaint was amended and defendant no.6, who has subsequently purchased the property from the defendants was added as a party.

3. Issues were initially framed. However, by an order dated 20 December 2011, the court framed an additional issue: "Whether this court has jurisdiction to entertain and try the suit? By consent of the parties, the issue was treated as preliminary issue. Counsel for the parties stated that they do not wish to adduce any oral evidence on the issue. Heard learned counsel for the parties.

4. "The High Court of Judicature at Bombay" was established by the Queen's Charter (known as "Letters Patent, Bombay"). Later, by reason of a power conferred under Article 231 of the Constitution of India, the Parliament of India established a common High Court, known as "The High Court of Bombay" for the State of Maharashtra and State of Goa. (see 20(1) of the Goa, Daman and Diu Re-organisation Act, 1987). Under section 20(3) of the Goa, Daman & Diu Reorganisation Act, the High Court of Bombay has the same jurisdiction powers and authority which the High Court of Judicature at Bombay had immediately before the constitution of the new common High Court of Bombay. There is no dispute between the parties that the jurisdiction of the High Court of Bombay including its Original Civil Jurisdiction and its powers are the same as were vested in the High Court of Judicature at Bombay under the Letters Patent. Clause XII of the Letters Patent reads as follows:

XII. Original jurisdiction as to suits - And we do further ordain that the said High Court of Judicature at Bombay, in the exercise of its original original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immovable property such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Causes Court at Bombay, or the Bombay City Civil Court.

5. Clause XII of the Letters Patent can be conveniently divided into two parts. The first part relates to the suits relating to land or immovable property and the second part relates to all other cases i.e.suits other than the suits for land and other immovable properties. In all other cases i.e in respect of any suit not relating to land or immovable property the High Court will have jurisdiction to entertain the suit if (a) the cause of action has wholly arisen within the local limits of its ordinary original jurisdiction or (b) if prior leave of the court has been obtained and cause of action has arisen in part within the local limits of the ordinary original jurisdiction of the High Court or (c) if prior leave of the court is obtained and the defendant dwells or carries on business or personally works for gain within such limits. In respect of suits for land or other immovable property, the High Court of Bombay would not have jurisdiction to entertain a suit even if the leave of the court has been obtained under Clause XII unless the property is situate within the limits of its original jurisdiction. So far as the suits which fall under the first part of Clause XII viz. suits for land or other immovable property, there is no question of obtaining a leave of the court if the land or immovable property falls outside original jurisdiction of the High Court.

6. I am fortified in my view by a decision of the Supreme Court in the case of Adcon Electronics Pvt.Ltd. Vs. Daulat & Anr., [2001 (4) ALL MR 479 (S.C.)] (supra). In paragraph no.9 of the decision, the Supreme Court held:

"9. Thus, it is clear that under clause 12 of the Letters Patent, the High Court in exercise of its ordinary original civil jurisdiction will have power to receive, try and determine: (1) suits for land or other immovable property if such property is situated within the local limits of original jurisdiction of the High Court; or (2) all other cases (a) if the cause of action has arisen within the local limits of the ordinary original jurisdiction of the High Court; (b) if prior leave of the Court has been obtained and the cause of action has arisen in part within the local limits of the ordinary original jurisdiction of the High Court; or (c) if the defendant dwells or carries on business or personally works for gain within such limits."

The Supreme Court then considered what is the meaning of the expression "suit for land" appearing in Clause XII of the Letters Patent and held :

"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 F.C.83)

The Supreme Court further held that a suit simplicitor for specific performance of a contract of sale in which relief of delivery of possession is not claimed cannot be treated as "suit for land". Implicit in the decision is that a suit for specific performance of a contract in which the delivery of possession is claimed or a suits in which title to the property is a subject matter of the suit are "suits for land" and excluded from the original jurisdiction of the High Court.

7. In my view, a suit for specific performance of a contract of sale of an immovable property in which possession of the property is claimed in pursuance of the contract for sale or as a consequence of the sale deed to be executed in performance of an agreement of sale, is a suit for land. Such a suit would be covered by the first part of Clause XII of Letters Patent. Being so, the High Court of Bombay would not have jurisdiction to entertain and try the suit if the immovable property is situated outside the limits of its original jurisdiction. Leave to institute such as a suit in the High Court cannot be granted. Grant of such leave would be a nullity because the court itself does not have a power to grant leave in respect of a suit for land or immovable property.

8. For these reasons, I answer the issue in the negative and hold that the High Court of Bombay does not have a jurisdiction to entertain and try a suit for specific performance of a land or an immovable property with a prayer in the suit for the possession thereof, if the land or the immovable property is situate outside the original jurisdiction of the High Court. This would be so even if a leave under Clause XII of the Letters Patent is purported to have been obtained.

9. On intimation of the decision of want of jurisdiction is given to the plaintiffs through their counsel under Order 7 Rule 10A of the Code of Civil Procedure the counsel, on instructions of plaintiff no.1 who is present in the court, states that the plaintiffs propose to present the plaint to the Civil Judge, Sr. Division, Pune after its return. I accordingly direct that plaintiffs may on return of the plaint present the plaint in the Court of Civil Judge, Sr. Division, Pune. The defendants shall appear in the court on 25 January 2012. The defendants through their counsel waive service of further summons in the suit.

10. The documents filed in the court be returned to the respective parties for filing them in the trial court.

Ordered accordingly.