Supreme Court of India
SHIVNARAYAN (D) BY LRS.versusMANIKLAL (D) THR. LRS. & ORS.
- Citation
- 2019 INSC 152
- Decided
- 6 February 2019
- Disposal
- Dismissed
- Bench
- ASHOK BHUSHAN
Holding
Section 17 of the CPC permits a suit covering properties in different jurisdictions only when the suit is based on a single common cause of action; otherwise, distinct causes of action cannot be clubbed, and the trial court’s dismissal of the Mumbai‑property claim was correct.
Summary
The plaintiff filed a suit in the Indore court seeking declarations of nullity of a will, a sale deed, and transfer documents relating to two immovable properties—one in Indore and another in Mumbai—along with a claim of joint family ownership. Defendants 7 and 8, who were parties to the Mumbai sale deed, moved to dismiss the Mumbai‑related relief on the grounds of lack of territorial jurisdiction and mis‑joinder of parties and causes of action. The trial court struck out the Mumbai‑property claims, a decision upheld by the High Court. On appeal, the Supreme Court examined the scope of Sections 16 and 17 of the Code of Civil Procedure, the interpretation of the phrase “any portion of the property,” and the limits of Order II Rules 2 and 3 on joinder of causes of action. The Court held that Section 17 allows a suit covering properties in different jurisdictions only when the suit is based on a single common cause of action, and that distinct causes of action cannot be clubbed against different defendants. Consequently, the trial court’s order dismissing the Mumbai‑property claim was affirmed and the appeal was dismissed.
Issues considered
- Whether Section 17 of the CPC permits a suit involving multiple immovable properties situated in different courts when the causes of action are different.
- The proper interpretation of the phrase “any portion of the property” in Section 17 with respect to joinder of distinct causes of action.
- Whether Order II Rule 2 and Rule 3 of the CPC allow joinder of different causes of action against different sets of defendants in a single suit.
- Whether the trial court was justified in striking out the pleadings relating to the Mumbai property on the grounds of mis‑joinder and lack of territorial jurisdiction.
Legislation cited
- Code of Civil Procedure, 1908s. 16, s. 17, s. 39(1)(c)
- General Clauses Act, 1897s. 13
Subjects
CPCSection 16Section 17jurisdictionmis‑joindercause of actionimmovable propertyjoinder of partiescivil procedurepartition suit
Judgment
[2019] 2 S.C.R. 1 1
SHIVNARAYAN (D) BY LRS. A
v.
MANIKLAL (D) THR. LRS. & ORS.
(Civil Appeal No. 1052 of 2019)
FEBRUARY 06, 2019
B
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Code of Civil Procedure, 1908:
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 C
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 D
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 E
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 F
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 G
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
H
1
2 SUPREME COURT REPORTS [2019] 2 S.C.R.
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.
B
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
C 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
E
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
H
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 3
suit is based on same cause of action with respect to the A
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 B
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 C
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. D
[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 E
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 F
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 G
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
H
and Others AIR 1975 All. 91; Sardar Nisar Ali Khan v.
4 SUPREME COURT REPORTS [2019] 2 S.C.R.
A 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
B 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
C 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
D 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
E 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 sub-
clause (1) is one cause of action. What is required by Order II
F 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
G
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.
H [Para 30][22-G-H, 23-A-B]
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 5
2.3 In the application filed by defendant Nos. 7 and 8, the A
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
B
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 C
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]
Case Law Reference
AIR 1930 PC 188 relied on Para 12 D
AIR 1936 PC 189 relied on Para 12
AIR 1923 Calcutta 501 referred to Para 14
(1908) ILR 30 All. 560 referred to Para 15
AIR 1952 Nag. 303 (Full Bench) referred to Para 15 E
AIR 1960 Ori. 159 referred to Para 15
AIR 1968 Kant. 82 referred to Para 15
AIR 1972 Delhi 90 referred to Para 15
AIR 1975 All. 91 referred to Para 15 F
AIR 1932 PC 172 referred to Para 15
AIR 1942 All. 387 referred to Para 15
AIR 1975 All. 91 referred to Para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1052 G
of 2019.
From the Judgment and Order dated 13.11.2013 of the High Court
of Madhya Pradesh Bench at Indore in Writ Petition No. 7535 of 2011.
H
6 SUPREME COURT REPORTS [2019] 2 S.C.R.
A Vinay Navare, Ms. Gwen Kartika, Ms. Abha R. Sharma, Advs.
for the Appellants.
Chinmoy Khaladkar, Ms. Neha Sharma, Advs. for the
Respondents.
The Judgment of the Court was delivered by
B
ASHOK BHUSHAN, J.
1. This appeal has been filed by the appellant against the judgment
of High Court of Madhya Pradesh dated 13.11.2013 by which judgment
writ petition filed by the appellant challenging the order dated 17.08.2011
of the III Additional District Judge, Indore in Civil Suit No.60-A of 2010
C
has been upheld dismissing the writ petition.
2. Brief facts of the case necessary to be noticed for deciding this
appeal are:-
2.1 The appellant filed Civil Suit No.60-A of 2010 before
the District Judge praying for declaring various transfer
D documents as null and void with regard to suit property
mentioned in Para No. 1A and Para No.1B of the plaint.
Plaintiff also prayed for declaration that suit properties
mentioned in Para Nos.1A and 1B are Joint Family
Property of plaintiff and defendant Nos. 1 to 3 and
E plaintiff is entitled to receive 1/3rd part of the suit
property. A Will executed by one Lt. Smt. Vimal Vaidya
was also sought to be declared to be null and void.
Certain other reliefs were claimed in the suit.The
parties shall be referred to as described in the suit. The
plaintiff in Para No.2 of the plaint has set the following
F genealogy of the parties:-
“Kaluram Bairulal Vaidya
(Since Deceased dt. 15/08/1969)
Shankarlal Maniklal Babulal Shivnarayan
G (20/04/98) (Dft. No.1) (4/11/75) (Plaintiff)
(Deceased) (Deceased)
Vimal
Leelbai Sushilaben (25.11.2007)
Def. No.2 Def. No.3 (Wife of Deceased)”
H
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 7
[ASHOK BHUSHAN, J.]
2.2 In Para No.1 of the plaint, description of the A
property was mentioned to the following effect:-
1.A) Plot No. SP 79, Sudama Nagar Indore (M.P.) size
30 ft. X 50 ft. area 1500 Sq. Ft. through membership
no. 2905 of Shikshak Kalyar Samiti, Sudama Nagar,
Indore. B
B) Bombay Suburban District S. No. 341, Pt. of Bandra
Grant Flat No.C/1/3, Sahitya Sahavas Co-op. Housing
Society, Second Floor, building known as “Abhang”
Bandra (E), Mumbai 400 051 situated on the plot
bearing no. C.T.S. No. 629, (S. No. 341-A.B.S.D.) C
Madhusudan Kalekar Marg, Gandhinagar, Bandra
(East) Mumbai – 51.
2.3 The plaintiff sought relief with regard to two properties
(hereinafter referred to as Indore property, situate at
Indore, State of Madhya Pradesh and Mumbai property
situate at Mumbai, State of Maharashtra). Plaintiff’s D
case in the plaint was that Indore Property was
purchased by plaintiff’s father in the year 1968-1969.
Plaintiff’s father died on 15.08.1969. Thereafter, Indore
property was joint family property of the plaintiff and
defendant Nos. 1 to 3. Plaintiff’s brother Babulal shifted E
to Pune. Babulal was allotted Mumbai property under
a Government Scheme for extraordinary persons like
writers and educationist. Babulal died in the year 1975.
Thereafter, the Mumbai property, on the basis of
succession certificate issued by Court of Civil Judge
(Senior Division), Pune came in the name of widow of F
Babulal, Smt. Vimal Vaidya. Smt. Vimal Vaidya
transferred the Mumbai flat by sale deed dated
15.10.2007 in favour of defendant Nos. 7 and 8. It was
further pleaded in the plaint that Smt. Vimal Vaidya also
dealt with Indore Property. The name of Smt. Vimal G
Vaidya was mutated in the year 1986 in the Indore
property and thereafter she transferred the Indore
property in favour of defendant Nos. 9 and 10. One set
of pleadings was with regard to a Will executed in the
year 2000 by Smt. Vimal Vaidya in favour of defendant
Nos. 4 to 6. On aforesaid pleadings, following reliefs H
were prayed in Para No. 25 of the plaint:-
8 SUPREME COURT REPORTS [2019] 2 S.C.R.
A “A) The property mentioned in Para No.1 of the Plaint and
its deed of transfer documents be declared null and void
which is not binding on the part of the plaintiff.
B) The property mentioned in Para No.1B of Plaint and
document related to its registered deed to transfer be
B declared null and void and which is not binding on the
part of Plaintiff.
C) The property mentioned in Para No. 1A and 1B of the
Plaint is joint family property of the Plaintiff and
defendant No. 1 to 3 be declared joint family property
and Plaintiffs right to receive 1/3 part of the suit property.
C
D) Court Commissioner be appointed to make division of
suit property and 1/3 part possession be given to the
Plaintiff.
E) During the hearing of the suit injunction order be passed
in respect of the property not to create third party interest
D
by the Defendants.
F) Plaintiff’s suit be declared decreed with the expenses.
G) To grant any other relief which this Hon’ble Court may
be fit in the interest of justice.
H) The forged will executed by Late Vimal Vaidya under
E
influence of defendant No. 4 and his associates relatives
Defendant No. 5 and 6 and other relatives of Kher
family. Because, Late Babulal Vaidya was a member
of undivided Hindu family. Therefore, Late. Vimal
Vaidya was not authorized to execute that alleged will
F as per the Law. Therefore, the registered alleged will
be declared null and void and be declared that it is not
binding on the part of the Plaintiff.”
2.4 The defendant Nos. 7 and 8 appeared in suit and filed an
application with the heading “application for striking out
G pleadings and dismissing suit against defendants No.7 and 8
for want of it territorial jurisdiction and mis-joinder of parties
and causes of action.” The defendant Nos. 7 and 8 pleaded
that for property being situated at Bandra East, Mumbai, the
Court at Indore has no territorial jurisdiction. It was further
pleaded by the defendant that suit suffers fatally from
H misjoinder of parties as well as causes of action. The
defendant Nos. 7 and 8 pleaded that there is no nexus at all
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 9
[ASHOK BHUSHAN, J.]
between the two properties – one situate at Indore and other A
at Mumbai. Details of different causes of action and nature
of the properties, details of purchasers for both different
sale transactions have been explained in detail in Para No. 6
of the application. It was further pleaded that Mumbai
property does not form asset of any Hindu Undivided Family.
B
Mumbai property was acquired by Babulal in his own name
and after his death on the basis of succession, pleaded that
no part of the cause of action for the Mumbai property took
place in Indore. In the application, following reliefs has been
prayed for by the defendant Nos.7 and 8:-
“(a) All the pleadings and the relief clauses relating to the C
property situate at Mumbai may kindly be ordered to
be struck off from the plaint, in exercise of powers
conferred on this Hon’ble Court under Order 6 Rule
16 of the Civil Procedure Code, and as a consequence
the suit against the defendants No.7 and 8 may kindly D
be dismissed with costs for the answering defendants;
while the Suit relating to the Indore property may be
continued if otherwise round maintainable under the
law;
OR in the alternative,
E
An order may kindly be passed declining to entertain
the part of the suit relating to the property in Mumbai
with costs for the answering defendants; and
(b) Such other order may kindly be passed as may be
deemed appropriate in the circumstances of the case.” F
2.5 The trial court after hearing the parties on the application
dated 19.03.2011 filed by the defendant Nos. 7 and 8 passed
an order dated 17.08.2011 allowed the application. An order
was passed deleting the property mentioned In Para No. 1B
of the plaint and the relief sought with regard to the said
G
property. The trial court held that separate cause of actions
cannot be combined in a single suit.
2.6 Aggrieved by the order of the trial court, a writ petition was
filed in the High Court, which too has been dismissed by the
High Court vide its order dated 13.11.2013 affirming the order
of the trial court. High Court referring to Section 17 of the H
10 SUPREME COURT REPORTS [2019] 2 S.C.R.
A Civil Procedure Code, 1908 held that for property situated at
Mumbai, the trial court committed no error in allowing the
application filed by defendant Nos. 7 and 8. The plaintiff-
appellant aggrieved by the order of the High court has come
up in this appeal.
B 3. We have heard Shri Vinay Navare for the appellant.
Shri Chinmoy Khaladkar has appeared for respondent Nos. 7 and 8.
4. Learned counsel for the appellant submits that High Court did
not correctly interpret Section 17 of the Code of Civil Procedure. The
partition suit filed by the appellant with regard to Mumbai and Indore
properties was fully maintainable. He submits that Order II Rule 2 of
C CPC mandates that the plaintiff must include the whole claim in respect
of a cause of action in the suit. The cause of action claimed by the
plaintiff was denial of the plaintiff’s right to share in the Joint Family
Property. Restrictive interpretation of Section 17 will do violence to the
mandate of Order II Rule 2. Section 39(1)(c) of the CPC itself
D contemplate that there can be a decree of an immovable property, which
is situated outside the local limits of the jurisdiction. The words “immovable
property”’ used in Section 17 is to be interpreted by applying Section 13
of the General Clauses Act. It provides that in all Central Acts and
Regulations, unless the context and subject otherwise requires, “any
singular term shall include plural”. In event, it is accepted that with
E regard to separate properties situated in different jurisdictions, separate
suits have to be filed that shall result in conflicting findings of different
Courts and shall involve the principles of res judicata.
5. Learned counsel appearing for defendant Nos. 7 and 8 refuting
the submissions of learned counsel for the appellant contends that no
F error has been committed by trial court in deleting the property at Para
No.1B in the plaint as well as pleadings and reliefs with regard to said
property. It is submitted that Section 17 of the CPC contemplate filing
of a suit with respect to immovable property situated in jurisdiction of
different courts only when any portion of the property is situated in the
jurisdiction of a Court, where suit has to be filed. The word “any portion
G
of the property” indicate that property has to be one whose different
portions may be situated in jurisdiction of two or more Courts. He further
submits that there is no common cause of action with regard to property
situate at Indore and property situate at Mumbai. Transfer deed with
regard to Indore Property as well as transfer deeds of Mumbai property
H are different. The purchasers of both the properties, i.e. Indore property
and Mumbai property are also different. According to pleadings in the
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 11
[ASHOK BHUSHAN, J.]
plaint itself, the Mumbai property was purchased by Babulal, the husband A
of Smt. Vimla Vaidya in his own name, which after death of Babulal in
the year 1975 was mutated in the name of Smt. Vimla Vaidya. The
plaintiff has sought to club different cause of actions in one suit. There
is mis-joinder of the parties also in the suit since the defendants pertaining
to different transactions have been impleaded in one suit whereas there
B
is no nexus with the properties, transactions and persons. Learned counsel
for the defendant Nos. 7 and 8 submits that by order of Court of Civil
Judge (Senior Division), Pune, the property is already mutated in the
year 1975 in the name of Smt. Vimla Vaidya after death of her husband,
which was rightfully transferred by her to defendant Nos. 7 and 8 on
15.10.2007. It is submitted that the Court at Indore might proceed with C
the property at Indore with the defendants, who are related to Indore
property but suit pertaining to Mumbai property, transactions relating
thereto and defendants relating to Mumbai property have rightly been
struck off from the case.
6. Before we consider the submissions of the learned counsel for D
the parties, relevant provisions pertaining to place of suing as contained
in Code of Civil Procedure needs to be noted. Section 15 to Section 20
contains a heading “place of suing”. Section 16 provides that Suits to be
instituted where subject-matter situate. Section 16 is as follows:-
16. Suits to be instituted where subject-matter
situate.—Subject to the pecuniary or other limitations E
prescribed by any law, suits-
(a) for the recovery of immovable property with or
without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a F
mortgage for charge upon immovable property,
(d) for the determination of any other right to or
interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually
G
under distraint or attachment, shall be instituted
in the Court within the local limits of whose
jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or
compensation for wrong to, immovable property held by or on
behalf of the defendant, may where the relief sought can be entirely H
12 SUPREME COURT REPORTS [2019] 2 S.C.R.
A obtained through his personal obedience, be instituted either in the
Court within the local limits of whose jurisdiction the property is
situate, or in the Court within the local limits of whose jurisdiction
the defendant actually and voluntarily resides, or carries on
business, or personally works for gain.
B Explanation.– In this section “property” means property
situate in India.
7. Section 17, which falls for consideration in the present case,
deals with suits for immovable property situate within jurisdiction of
different courts is as follows:-
C 17. Suits for immovable property situate within jurisdiction
of different Courts.—Where a suit is to obtain relief
respecting, or compensation for wrong to, immovable
property situate within the jurisdiction of different Court,
the suit may be instituted in any Court within the local limits
of whose jurisdiction any portion of the property is situate:
D
Provided that, in respect of the value of the subject matter
of the suit, the entire claim is cognizable by such Court.
8. We need to notice the Scheme under Code of Civil Procedure
as delineated by Sections 16 and 17. Section 16 provides that suit shall
be instituted in the Court within the local limits of whose jurisdiction the
E
property is situated. Section 16(b) mentions “for the partition of
immovable property”.
9. Now, we look into Section 17, which deals with suits for
immovable property situated within jurisdiction of different Courts. As
per Section 17, the suit may be instituted in any Court within the local
F limits of whose jurisdiction any portion of the property is situated. What
is the meaning of the word “any portion of the property”? There may
be a fact situation where immovable property is a big chunk of land,
which falls into territorial jurisdiction of two courts in which fact situation
in Court in whose jurisdiction any portion of property is situated can
entertain the suit. Whether Section 17 applies only when a composite
G
property spread in jurisdiction of two Courts or Section 17 contemplate
any wider situation. One of the submissions of the learned counsel for
the appellant is that the word “property” as occurring in Section 17 shall
also include the plural as per Section 13 of General Clauses Act, 1897.
Section 13 of the General Clauses Act provides:-
H
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 13
[ASHOK BHUSHAN, J.]
13. Gender and number.-In all Central Acts and Regulations, A
unless there is anything repugnant in the subject or
context.-
(1) Words importing the masculine gender shall be
taken to include females; and
(2) words in the singular shall include the plural, B
and vice versa.
10. Applying Section 13 of General Clauses Act, the Bombay High
Court explaining the word “property” used in Section 17 held that it
includes properties. We are also of the same view that the word
“property” used in Section 17 can be more than one property or properties. C
11. The word “property” under Section 17 of the Civil Procedure
code may also be properties, hence, in a schedule of plaint, more than
one property can be included. 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 D
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. E
12. We now look into the decisions of various Courts in reference
to Section 17 of Civil Procedure Code. How the word “property” and
“portion of the property” occurring in Section 17 has been understood
by different High Courts. There are few decisions of the Privy Council
also where Section 17 of the Civil Procedure Code came for consideration. F
In Nilkanth Balwant Natu and Others Vs. Vidya Narasinh Bharathi
Swami and Others, AIR 1930 PC 188, Privy Council had occasion to
consider Section 17 of Civil Procedure Code. The properties in respect
of which relief was sought by the plaintiff were situated in Satara, Belgaum
and Kolhapur. Although Satara and Belgaum were situated in British
India but Kolhapur was not. The Privy Council after noticing the provision G
of Sections 17 and 16(c) laid down following:-
“The learned Judge had jurisdiction to try the suit so far as it
related to the mortgaged properties situate in Satara; and, in
asmuch as the mortgaged properties in Belgaum are within the
jurisdiction of a different Court in British India, he had jurisdiction H
to deal with those properties also.”
14 SUPREME COURT REPORTS [2019] 2 S.C.R.
A 13. The Privy Council, thus, held that Satara Court had jurisdiction
to entertain suit with regard to property situated at Satara and Belgaum
whereas it has no jurisdiction to entertain suit pertaining to Kolhapur,
which was not in the British India. In another case of Privy Council,
Nrisingha Charan Nandy Choudhry Vs. Rajniti Prasad Singh and
Others, AIR 1936 PC 189, mortgage lands were in the Sonthal
B
Parganas, State of Bihar and also in the Gaya district of State of Bihar.
In Paragraph 9, following was laid down:-
“9. Now, the mortgage deeds include, as already stated,
lands situated, not only in the Sonthal Parganas, but also
in the Gaya District. What is the ordinary rule for
C determining the court which can take cognizance of a suit
for immovable property situated within the local limits of
two or more tribunals? The answer is furnished by Section
17 of the Code of Civil Procedure (Act V. of 1908), which
provides that where a suit is to obtain relief respecting
immovable property situate within the jurisdiction of different
D
courts, the suit may be instituted in any court within the local
limits of whose jurisdiction any portion of the property is situate.”
14. Different High Courts have also while interpreting Section 17
of Civil Procedure Code laid down that Section 17 is applicable in case
where properties are situated in the jurisdiction of more than one court.
E In Rajendra Kumar Bose Vs. Brojendra Kumar Bose, AIR 1923
Calcutta 501, the Division Bench of the Calcutta High Court noticed
following:-
“Exceptions to the rule that a suit cannot lie for partition of a
portion of the family property have been recognised when
F different portions of the family property are situated in different
jurisdictions, aid separate suits for separate portions have
sometimes been allowed, where different rules of substantive
or adjective law prevail in the differed Courts; Hari v. Ganpat
Rao, (1883) 7 Bom. 272; Ramacharia v. Anantacharia, (1894)
18 Bom. 389; Moti Ram v. Kanhaya Lal, AIR 1920 Lah. 474;
G Panchanon v. Sib Chandra, (1887) 14 Cal. 835; Balaram v. Ram
Chandra, (1898) 22 Bom. 922; Abdul v. Badruddin, (1905) 28
Mad. 216; Padmani v. Jagadamba, (1871) 6 B.L.R. 134;
Rammohan v. Mulchand, (1906)28 All. 39; Lachmana v. Terimul,
4 Mad. Jur. 241; Subba v. Rama, (1866-67) 3 Mad. H.C.R. 76;
Jayaram v. Atmaram, (1879) 4 Bom. 482;”
H
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 15
[ASHOK BHUSHAN, J.]
15. A Full Bench of Allahabad High Court in Kubra Jan Vs. A
Ram Bali and Others, (1908) ILR 30 All. 560 had occasion to
consider suit, which was filed at Bareilly with regard to Bareilly property
as well as Bara Banki property situated in two different districts. The
jurisdiction at Bareilly Court was upheld in Paragraph Nos. 1 and 8, in
which it was laid down as follows:-
B
“1. This appeal has been laid before a Full Bench by reason of
a conflict in the authorities upon a question raised in the appeal.
The suit is one by the daughter of one Bande Ali to recover
from her brother Akbar Husain and a number of other
defendants, transferees from him, her share in the property of
her deceased father. This property is situate in the district of C
Bareilly and also in the district of Bara Banki in Oudh. It appears
that Akbar Husain transferred the Bareilly property to the
defendants Nos. 2 to 8 and the Bara Banki property to persons
from whom the defendant respondent Ram Bali acquired it by
virtue of a decree for pre-emption. The suit in regard to the
D
Bareilly property was compromised, with the result that the claim
in respect of that property was abandoned, and the suit
proceeded as regards the Bara Banki property only.
8. Again, it is said that after the compromise in respect of the
Bareilly property the Court ceased to have any jurisdiction to
deal with the plaintiff’s claim, that is, that though the Bareilly E
Court bad jurisdiction, when the plaint was filed, to deal with the
suit, it ceased to have jurisdiction when portion of the property
claimed was withdrawn from the litigation. ‘It seems to me that
once jurisdiction is vested in a Court, in the absence of a
provision of law to the contrary, that jurisdiction will not be taken F
away by any act of the parties. There is no allegation here that
the plaint was filed in the Bareilly Court with any intention to
defeat the provisions of the Code of Civil Procedure as regards
the venue of suits for recovery of immovable property. If any
fraud of that kind had been alleged and proved, other
considerations would arise. But in this case, as I have said, no G
such suggestion has been made.”
16. Similar view was taken in Ramdhin and Others Vs.
Thakuran Dulaiya and Others, AIR 1952 Nag. 303 (Full
Bench);Basanta Priya Dei and Another Vs. Ramkrishna Das and
Others, AIR 1960 Ori. 159; Laxmibai Vs. Madhankar Vinayak H
16 SUPREME COURT REPORTS [2019] 2 S.C.R.
A Kulkarni and Others, AIR 1968 Kant. 82; Prem Kumar and
Others Vs. Dharam Pal Sehgal and Others, AIR 1972 Delhi 90
and Janki Devi Vs. Mannilal and Others, AIR 1975 All. 91.
17. The views of the different High Courts as well as of the
Privy Council, as noticed above, clearly indicate that Section 17 has
B been held to be applicable when there are more than one property situated
in different districts.
18. The point to be noticed is that the permissibility of instituting
suit in one Court, where properties, which are subject matter of the suit
are situated in jurisdiction of different courts have been permitted with
one rider, i.e., cause of action for filing the suit regarding property situated
C in different jurisdiction is one and the same. In a suit when the cause of
action for filing the suit is different, the Courts have not upheld the
jurisdiction of one Court to entertain suits pertaining to property situated
in different courts. In this context, we need to refer to some judgments
of High Courts as well as of the Privy Council, which has considered the
D issue. In Sardar Nisar Ali Khan Vs. Mohammad Ali Khan, AIR
1932 PC 172, Privy Council had occasion to consider the case where
subject matter of the suit were several properties situated in jurisdiction
of different courts. Suit was instituted in Oudh (which later became
part of Uttar Pradesh). The Privy Council held that since there was
different cause of actions, the same cannot be clubbed together. One of
E the properties, which was situated in Punjab was referred to in the suit
as Khalikabad property. Although, suit with regard to the other three
properties had similar cause of action but cause of action with regard to
Khalikabad property being found to be different, the Court held that
Section 17 Civil Procedure Code was not applicable. Following was laid
F down in the case by the Privy Council:-
“There remains the question of the Khalikabad estate. Here
the respondent cannot succeed unless he shows that under
the terms of the deed creating the wakf he is the trustee.
That question depends upon the construction of the deed. It is a
separate and different cause of action from these which found
G
the proceedings in respect of the other three properties. Their
Lordships are unable to find any jurisdiction for bringing the suit
in respect of this property elsewhere than in the Court of the
district where the property is situate. Such justification cannot
in their Lordships’ judgment be found in Section 17, Civil P.C.
H upon which the respondent relied.”
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 17
[ASHOK BHUSHAN, J.]
19. A Two-Judge Bench judgment of Allahabad High Court has A
been heavily relied upon by the learned counsel for the respondent
reported in AIR 1942 All. 387, Karan Singh and Others Vs. Kunwar
Sen and Others. In the above case, suit properties were situated in
Haridwar and Amritsar. Suit was filed in the Court of Civil Judge,
Saharanpur. An application under Section 22, Civil P.C. was filed to
B
determine as to whether a suit which is pending in the Court of the Civil
Judge of Saharanpur should proceed in the corresponding Court having
jurisdiction at Amritsar in the Punjab. The Court after noticing Section
17 held that plaintiffs were claiming two properties against two set of
defendants, whom they alleged to be trespassers. The Court held that
unless suit is filed on one cause of action, two properties situate in different C
jurisdiction cannot be clubbed. Following was laid down:-
“Having made these observations I must now return to the
question whether in the suit with which we are dealing it can be
said that the relief claimed against the Defendants in possession
of the property at Hardwar and the Defendants in possession D
of the property at Amritsar arises out of the same series of acts
or transactions and whether the two properties claimed can, for
the purposes of Section 17, be described as a single entity. It
must be admitted that there is no apparent connection between
the transfer of the Amritsar property to Amar Nath under the
will executed by Jwala Devi and the subsequent transfers made E
by him and his successors-in-interest on the one hand and the
transfer made by Prem Devi of the Hardwar property on the
other hand. It must be admitted also that the Plaintiffs are not
claiming the estates of Badri Das as a whole against any rival
claimant to the estate. They are claiming two properties against F
two sets of Defendants whom they allege to be trespassers and
who, if they are trespassers, have absolutely no connection with
each other. The only connecting link is that the Plaintiff’s claim
in both the properties arose at the time of the death of Prem
Devi and that the claim is based on the assumption that the
Defendants are in possession as the results of transfers made G
by limited owners who were entitled, during their lives, to the
enjoyment of the whole estate and the properties comprised
within it. It was held many years ago in the case of Mst. Jehan
Bebee v. Saivuk Ram (1867) H.C.R. 1. 109, that unconnected
transfers by a Hindu widow of properties comprised within the
H
husband’s estate did not give rise to one cause of action against
18 SUPREME COURT REPORTS [2019] 2 S.C.R.
A the various transferees. The same rule was laid down in the
case of Bindo Bibi v. Ram Chandra (1919) 17 A.L.J. 658. In
that case a reference was made to the decision in Murti v. Bhola
Ram (1893) 16 All 165 and it was pointed out that that was a
case where a claim was made against one Defendant who had
taken possession of different properties in execution of one
B
decree. There is no doubt that that case is clearly distinguishable
from the case with which we are dealing……………………”
20. The above judgment was subsequently relied and explained
by Allahabad High Court in Smt. Janki Devi Vs. Manni Lal and
Others, AIR 1975 All. 91. In Paragraph No.11, following was laid
C down:-
“11. Similar view was expressed in Smt. Kubra Jan v. Ram
Bali, (1908)ILR 30 All 560 . This Full Bench decision does not
appear to have been brought to the notice of the Division Bench
hearing the case of Karam Singh v. Kunwar Sen AIR 1942 All
D 387. However, many observations made therein are not contrary
to the law laid down in the above mentioned Full Bench case.
The sum and substance of this Division Bench case also is that
where in the facts and circumstances of the case all the
properties can be treated as one entity a joint trial shall be
permissible but not where they are more or less different
E properties with different causes of action. The material
observations are as below:—
“........ and this implies, in my judgment, that the acts or
transactions, where, they are different, should be so
connected as to constitute a single series which could fairly
F be described as one entity or fact which would constitute a
cause of action against all the defendants jointly. Whether
this necessary condition exists in any particular case would,
of course, depend upon the nature of the case but I am
satisfied that this at least is necessary that the case should be
G such that it could be said that the Court in which the suit was
instituted had local jurisdiction in the first instance to deal
with the controversies arising between the plaintiffs and each
of the defendants………………
The property must, in the particular circumstances of the suit,
be capable of being described as a single entity. Whether it can
H or cannot be so described will depend again upon the nature of
the dispute between the parties. If there is a dispute, for instance
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 19
[ASHOK BHUSHAN, J.]
about a single estate which both parties are claiming as a whole A
that estate is obviously for the purposes of that particular suit a
single entity. If, on the other hand, the owner of an estate has a
claim against unconnected trespassers who have trespassed
upon different parts of the estate or different properties situated
within it, those parts or those properties would not for the
B
purposes of the dispute between him and the trespassers be
one entity but several entities and the provisions of Section 17,
would not apply”.”
21. Thus, for a suit filed in a Court pertaining to properties situated
in jurisdiction of more than two courts, the suit is maintainable only when
suit is filed on one cause of action. C
22. Justice Verma of Allahabad High Court in his concurring opinion
in Karan Singh v. Kunwar Sen (supra) while considering Section 17
of C.P.C. has explained his views by giving illustration. Following was
observed by Justice Verma
“I agree, Suppose a scattered Hindu dies possessed of D
immovable property scattered all over India at Karachi, Peshwar,
Lahore, Allahabad, Patna, Dacca, Shillong, Calcutta, Madras
and Bombay and is succeeded by his widow who, in the course
of 40 or 50 years, transfers on different dates portions of the
property situated at each of the places mentioned above, to E
different persons each of whom resides at the place where the
property transferred to him is situated, and the transfers are
wholly unconnected with, and independent of one another. Upon
the widow’s death the reversioner wants to challenge these
various transfers. Learned counsel for the plaintiffs has argued
that in such a case the reversioner is entitled to bring one suit F
challenging all the transfers at any one of the places mentioned
above, impleading all the transferees, I find it very difficult to
hold that such a result is contemplated by the provisions of the
Code of Civil Procedure upon which reliance has been placed
and which are mentioned in the judgment of my learned brother.
G
I do not consider it necessary to pursue the matter any further.
It is clear to my mind that, if the plaintiffs; argument mentioned
above is accepted, startling results will follow.”
23. Now, we come to submission of learned counsel for the
appellant based on Section 39 sub-section (1)(c)of C.P.C. It is submitted
that Section 39(1)(c) of C.P.C. is also a pointer to what is intended in H
20 SUPREME COURT REPORTS [2019] 2 S.C.R.
A Section 17. The scheme as delineated by Section 39 indicates that when
a decree is passed by a Court with regard to sale or delivery of immovable
property situated outside the local limits of the jurisdiction of that Court
it may transfer the decree for execution to another Court. The provision
clearly indicates that a decree of Court may include immovable property
situate in local limits of that Court as well as property situated outside
B
the local limits of the jurisdiction of the Court. Section 39(1)(C) re-enforces
our 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. We may, however, add that passing a decree by a Court with
regard to immovable property situate outside the local jurisdiction of the
C Court 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.
D 24. We may further notice that 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
E of some of the properties.
25. The partial partition of property is well accepted principle with
regard to a joint family. In Mayne’s Hindu Law & Usage, 16 th Edition in
paragraph 485 following has been stated:
“485. Partition partial or total.-Partition may be either total
F or partial. A partition may be partial either as regards the persons
making it or the property divided.
Partial as to properties.- It is open to the members of a joint
family to severe in interest in respect to a part of the joint estate
while retaining their status of a joint family and holding the rest as
G the properties of an undivided family. Until some positive action is
taken to have partition of joint family property, it would remain
joint family property.”
26. Mulla on Hindu Law, 22nd Edition also refers to partial partition
both in respect of the property and or in respect of the persons making
it. In paragraph 327 following has been stated:
H
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 21
[ASHOK BHUSHAN, J.]
“”327. Partial partition.-(1) A partition between coparceners A
may be partial either in respect of the property or in respect of
the persons making it.
After a partition is affected, if some of the properties are treated
as common properties, it cannot be held that such properties
continued to be joint properties, since there was a division of title, B
but such properties were not actually divided.
(2) Partial as to property.- It is open to the members of a joint
family to make a division and severance of interest in respect of a
part of the joint estate, while retaining their status as a joint family
and holding the rest as the properties of a joint and undivided
family.” C
The issues arising in the present case being not related to subject
of partial partition the issue need not to be dealt with any further.
27. Learned counsel for the appellant has also submitted that
permitting filing of a separate suit with regard to property situate in
different jurisdiction shall give rise to conflicting decision and decision in D
one suit may also be res judicata in another suit. We in the present case
being not directly concerned with a situation where there are more than
one suit or a case having conflicting opinion we need not dwell the issue
any further.
28. Sections 16 and 17 of the C.P.C. are part of the one statutory E
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. From the foregoing
discussions, we arrive at following conclusions with regard to ambit and
scope of Section 17 of C.P.C.
F
(i) 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., “properties”.
(ii) The expression any portion of the property can be read
G
as portion of one or more properties situated in
jurisdiction of different courts and can be also read as
portion of several properties situated in jurisdiction of
different courts.
(iii) A suit in respect to immovable property or properties
situate in jurisdiction of different courts may be instituted H
22 SUPREME COURT REPORTS [2019] 2 S.C.R.
A in any court within whose local limits of jurisdiction, any
portion of the property or one or more properties may
be situated.
(iv) A suit in respect to more than one property situated in
jurisdiction of different courts can be instituted in a court
B 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.
29. Now, we revert to the facts of the present case and pleadings
on record. The suit filed by the appellant contained three different sets
C of defendants with different causes of action for each set of defendants.
Defendant Nos. four to six are defendants in whose favour Will dated
15.02.2000 was executed by late Smt. Vimal Vaidya. In the plaint, relief
as claimed in paragraph 25(H)is the will executed by late Smt. Vimal
Vaidya was sought to be declared as null and void. The second cause of
D action in the suit pertains to sale deed executed by late Smt. Vimal Vaidya
dated 15.10.2007 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
E 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
F 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
by its order dated 17.08.2011.
30. Learned counsel for the appellant has also referred to and
relied on order II Rule 2 and Order II Rule 3 C.P.C. Learned counsel
G
submits that order II Rule 2 sub-clause (1) provides that every suit shall
include the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action. The cause of action according to Order
II Rule 2 sub-clause (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
H of the claim on the basis of a cause of action. Order II Rule 2 cannot be
SHIVNARAYAN (D) BY LRS. v. MANIKLAL (D) THR. LRS. 23
[ASHOK BHUSHAN, J.]
read in a manner as to permit clubbing of different causes of action in a A
suit. Relying on Order II Rule 3 learned counsel for the appellant submits
that joinder of causes of action is permissible. 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
B
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. As noticed above there are different set of
defendants who have different causes of actions.
31. Learned counsel has lastly submitted that defendant Nos. 7
and 8 in their application having not questioned the cause of action for C
which suit was filed, the submission raised on behalf of the counsel for
the respondent that suit was bad for misjoinder of the causes of action
cannot be allowed to be raised.
32. It is relevant to notice in the application filed by defendant
Nos. 7 and 8, the heading of the application itself referred to “mis-joinder D
of parties and causes of action”. In Para (1) of the application, it was
categorically mentioned that there was mis-joinder of parties and causes
of action. The trial court in its order dated 17.08.2011 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 E
actions combining in single suit.
33. We, thus, are of the view that 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 filed by the appellant
challenging the order of the trial court. F
We do not find any merit in this appeal, the appeal is dismissed
accordingly.
Kalpana K. Tripathy Appeal dismissed.
G
H
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