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Case Number

Suit No. 1377/1995

Attorney(S)

Mr. Vikramjit Sen, Advocate for Petitioner.
Mr. N. Safaya, Advocate for Respondents.

Judges

Dr. M.K Sharma, J.

Acts

provisions of Section 16 as also the provisions of Section 22 of the Specific Relief Act as also the provisions of Section 55 of the Transfer of Property Act
provision of Section 55 (1) of the Transfer of Property Act
provisions of Section 20 of the Code of Civil Procedure
provisions of Section 16 of the Code of Civil Procedure.
SECTION 22 SPECIFIC RELIEF ACT
Order 7 Rule 11 of the Code of Civil Procedure
clause (d) of the provisions of Section 16 CPC
provisions of Section 55 (1) of the T.P Act,
section 16 of the Code of Civil Procedure
SECTION 16 CIVIL PROCEDURE CODE

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Smart Summary

Judgment Summary — Dr. M.K. Sharma, J.

Factual and Procedural Background

The plaintiff instituted the present suit seeking a decree for specific performance of a contract in respect of an apartment in "NEELANCHAL APARTMENTS, Economy Type III, Pine Gardens, Nainital" developed by the defendants, together with rights to common passages, entrances, terrace and other common facilities and easements. In paragraph 13 of the plaint the plaintiff asserted that this Court has territorial jurisdiction because (a) the cause of action arose in Delhi and (b) the defendant resides and carries on business in Delhi, invoking Section 20 of the Code of Civil Procedure ("CPC").

The defendant filed a written statement denying territorial jurisdiction, contending that the subject matter is situate at Nainital, Uttar Pradesh, and that Section 16 CPC is applicable. The defendant also moved under Order VII Rule 11 CPC for rejection of the plaint on the ground of lack of territorial jurisdiction. The Court heard learned counsel for both parties and framed the question whether this Court has territorial jurisdiction to try and decide the suit.

Legal Issues Presented

Whether this Court has territorial jurisdiction to try and decide the present suit (i.e., whether Section 20 CPC or Section 16 CPC governs territorial jurisdiction in this case).
Whether the provisions of Section 20 CPC operate as an exception to Section 16 CPC in the facts of this case as contended by the plaintiff.
Whether the proviso to Section 16 CPC (permitting suit where relief can be entirely obtained by personal obedience of the defendant) applies to the present suit.
Whether the suit is to be treated as merely a suit for specific performance (which the plaintiff contends would attract Section 20) or a suit which also seeks relief of possession/transfer of immovable property (which would engage Section 16 and related provisions).

Arguments of the Parties

Plaintiff's Arguments

The Court has territorial jurisdiction under Section 20 CPC because the cause of action arose in Delhi and because the defendant resides and carries on business in Delhi.
The plaintiff characterised the suit as one merely for specific performance and not as a suit for possession of immovable property; hence Section 20 (an exception to Section 16, according to the plaintiff) should apply.
Even if Section 16 CPC were applicable, the proviso to Section 16 would apply because the relief sought could, according to the plaintiff, be obtained through the personal obedience of the defendant (i.e., the defendant could be ordered to perform without the need for proceedings in the court where the property is situate).
The plaintiff relied on the Supreme Court decision in M/s Babu Lal v. Hazari Lal Kishori Lal (AIR 1982 SC 818) and an unreported decision of this Court in G.S. Kohli & Others v. Mrs. Raj Rani Vijh to support his contentions.

Defendant's Arguments

The Court lacks territorial jurisdiction because the immovable property is situate at Nainital (U.P.) and Section 16 CPC therefore governs the territorial jurisdictional question.
The suit concerns determination of rights and interests in immovable property and is therefore governed by clause (d) of Section 16 CPC.
The defendant relied upon the Supreme Court decision in Babu Lal (supra) and the decision in Panchanan Mondal v. Arapada Mondal (AIR 1961 Calcutta 193) as supporting authorities.
The defendant also filed an application under Order VII Rule 11 CPC arguing that the plaint is liable to be rejected for want of territorial jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
M/s. Babu Lal v. Hazari Lal Kishori Lal, AIR 1982 SC 818	Interpretation of Section 22 of the Specific Relief Act: (a) a plaintiff suing for specific performance may ask for possession, partition or separate possession; (b) reliefs under Section 22(2) cannot be granted unless expressly claimed; (c) proviso permits amendment of plaint to include such reliefs at any stage; (d) the expression "in an appropriate case" limits when possession/partition is required to be sought.	The Court summarized and relied on the Supreme Court's analysis to explain that possession can be an inherent element of relief for specific performance and that courts may permit amendment to claim possession. The Court used this to examine whether the present suit necessarily excluded a claim for possession and to assess the applicability of Section 16 proviso.
Panchanan Mondal v. Arapada Mondal and others, AIR 1961 Calcutta 193	Authority relied on by defendant concerning territorial jurisdiction principles (as cited by defendant's counsel).	The decision was relied upon by the defendant; the Court noted reliance but did not record detailed analysis of its provisions in the reasons set out.
G.S. Kohli & Others v. Mrs. Raj Rani Vijh & Others (Suit No. 187/1989; disposed 6.7.1992) (unreported)	Earlier decision of this Court cited by the plaintiff.	The Court observed that the decision did not take note of Sections 16 and 22 of the Specific Relief Act and Section 55(1) of the Transfer of Property Act, and therefore found that the decision was not helpful for deciding the present issues.
Union Bank of India v. M/s. Logic System (decision of this Court)	Authority addressing the application of the proviso to Section 16 CPC (as relied upon in the Court's reasoning).	The Court stated that its conclusion regarding the inapplicability of the proviso to Section 16 in the present facts is fortified by this Court's decision.

Court's Reasoning and Analysis

The Court proceeded by first characterising the nature of the suit and reviewing the statutory provisions that govern relief for specific performance and consequential reliefs. The suit was a petition for specific performance of a contract for transfer of immovable property; Section 22 of the Specific Relief Act permits a plaintiff suing for specific performance to ask for possession, partition or separate possession in appropriate cases, and Sub-section (2) requires such reliefs to be expressly claimed though the proviso permits amendment at any stage.

The Court recited the Supreme Court's exposition in Babu Lal regarding Section 22 — namely, that possession is not always required to be specifically claimed, because possession can be inherent in the relief for specific performance, and that where exclusive possession is with the contracting party, a decree for specific performance simpliciter may be complete relief and the seller will then be bound to give possession in terms of Section 55(1) of the Transfer of Property Act.

Applying those principles to the pleadings, the Court rejected the plaintiff's attempt to characterise the suit as one only for specific performance to bring it within Section 20 CPC. The Court observed that although the suit was framed as for specific performance, the plaint also sought a declaration for transfer of the property and thereby sought relief for possession. Moreover, it was an admitted fact that possession of the property was with the seller; in those circumstances, relief of possession is inherent in specific performance and the provisions of Section 55(1) T.P. Act are applicable.

On the question of Section 16 proviso (i.e., whether the relief could be entirely obtained by personal obedience of the defendant so as to permit suit outside the jurisdiction where the property is situate), the Court held the proviso inapplicable. The Court reasoned that the proviso is available only when the relief sought can be wholly obtained by personal obedience of the defendant without requiring any act outside the jurisdiction of the forum. In the present case, even after execution of the sale deed, the defendant would have to go to Nainital to hand over possession; therefore the relief could not be obtained entirely by personal obedience within the territorial limits of the Delhi court.

The Court further analysed the applicable clauses of Section 16 CPC and expressed agreement with the defendant that clause (d) of Section 16 was attracted because the suit relates to determination of right and interest in immovable property situate at Nainital (U.P.). The Court reserved any acceptance of the defendant's contention regarding clause (a) but clearly found clause (d) applicable.

Having concluded that the suit involved rights to immovable property situate outside the Court's local limits and that the proviso to Section 16 did not apply, the Court held that Section 16 CPC alone governed territorial jurisdiction and that the present suit must be instituted in the court within whose local limits the property is situated.

Holding and Implications

Holding: The Court held that Section 16 CPC is applicable and that this Court does not have territorial jurisdiction to entertain and decide the present suit. Consequently, the Court held that the present suit is not maintainable in this Court and the plaint is returned to the plaintiff to file in an appropriate court within whose local limits the property is situate. All applications are disposed of in terms of the order.

Implications:

The direct practical effect is that the plaint is returned to the plaintiff for presentation in the appropriate forum (the court with local limits where the property at Nainital is situate).
The Court's decision rests on application of Section 16 CPC (clause (d)), the interpretative guidance in Babu Lal regarding Section 22 of the Specific Relief Act, and the operation of Section 55(1) T.P. Act as regards the seller's duty to deliver possession. The Court found no basis to treat Section 20 CPC as overriding Section 16 in the facts of this case.
The opinion does not state that any new legal principle or precedent was created; the ruling applies established jurisdictional and specific-performance-related principles to the facts and results in dismissal (return) of the plaint for filing in the appropriate court.

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Anil Verman v. Raheja Developers Private Limited.

Dr. M.K Sharma, J.— The present suit has been instituted by the plaintiff against the defendant seeking for a decree for specific performance of contract in respect of an apartment in NEELANCHAL APARTMENTS, Economy Type III, Pine Gardens, Nainital, developed by the defendants, together with the rights to the use of all common passages, entrances, terrace and any other common facilities and easements.

2. In order to show and establish that this court has territorial jurisdiction to entertain and decide the present suit it is stated in paragraph 13 of the plaint that this court has territorial jurisdiction to entertain the suit since the cause of action has arisen in Delhi and also because the defendant resides and carries on business in Delhi. Thus according to he plaintiff this court has territorial jurisdiction in view of the provisions of Section 20 of the Code of Civil Procedure as the cause of action for the suit has arisen in Delhi and also because the defendant resides and carries on business in Delhi.

3. The defendant filed a written statement in this court contending inter alia that this court has no jurisdiction to try and decide the suit as the subject matter of the suit is situate at Nainital, U.P and therefore, section 16 of the Code of Civil Procedure is applicable to the facts and circumstances of the present case and not the provisions of Section 20 of the Code of Civil Procedure. The defendant also filed an application in this court under Order 7 Rule 11 of the Code of Civil Procedure contending inter alia that since this court does not have territorial jurisdiction to try and decide the present suit the plaint is liable to be rejected.

4. In view of the aforesaid pleadings of the parties I am called upon to decide as to whether this court has territorial jurisdiction to try and decide the present suit, on which I heard the learned counsel appearing for the parties.

5. According to the plaintiff the provisions of section 20 would be applicable to the facts and circumstances of the case as according to him the said provision is an exception to the provisions of section 16 of the Code of Civil Procedure. He further submitted that the execution of the sale deed is yet to take place in the present case and therefore, the relief for possession cannot be prayed and/or cannot be given at this stage and thus the present suit cannot be said to be a suit for relief for possession and the suit is merely a suit for specifically enforcing a contract and therefore, the provisions of section 20 would be applicable. He further submitted that even assuming that the provisions of section 16 are applicable to the facts and circumstances of the present case would be guided by the proviso of Section 16 of the Civil Procedure Code as the relief as sought for herein could be entirely obtained through the personal obedience of the defendant and thus such a suit could be instituted where cause of action either in whole or in part arises or whether the defendant resides and/or carries on business. In support of his submission the learned counsel appearing for the plaintiff relied upon the decision of the Supreme Court in M/s. Babu Lal v. Hazari Lal Kishori Lal; AIR 1982 SC 818, and the unreported decision of this court in G.S Kohli & Others v. Mrs. Raj Rani Vijh and others, in Suit No. 187/1989 disposed of on 6.7.1992

6. Counsel appearing for the defendant however, submitted that the present suit is governed by the provisions of section 16 so far territorial jurisdiction aspect is concerned. He submitted that as the immovable property in question is situate at Nainital in the State of U.P which is outside the territorial jurisdiction of this court, this court is not empowered and does not have the jurisdiction to entertain and try the present suit. In support of his contention the learned counsel relied upon the decision of the Supreme Court in Babu Lal's case (supra) and Panchanan Mondal v. Arapada Mondal and others AIR 1961 Calcutta 193.

7. In the light of the aforesaid submissions I proceed to decide the aforesaid issue which falls for my consideration and decision.

8. The present suit is a suit seeking for a decree for specific performance of the contract. In this connection, reference may also be made to the provisions of Section 22 of the Specific Relief Act which provides that any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, as for possession, or partition and separate possession, of the property, in addition to such performance. It is further provided in the said provisions that no relief under the said provision shall be granted by the court unless it has been specifically claimed, provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. The aforesaid provisions of Section 22 of the Specific Relief Act came to be considered by the Supreme Court in the decision of Babu Lal v. M/s. Hazari Lal Kishori Lal (supra). In the said decision, it was held that Section 22 of the Specific Relief Act provides that a person in a suit for specific performance of a contract for the transfer of immovable property may ask for appropriate reliefs, namely, he may ask for possession, or for partition or for separate possession, including the relief for specific performance. The Supreme Court also took note of Sub-section (2) of the said Section, which provides that the aforesaid relief cannot be granted by the court unless the same is expressly claimed by the plaintiff in the suit. The Supreme Court further goes on to hold that the proviso to the sub-section (2) states that where the plaintiff has not specifically claimed the reliefs in his plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, by means of an amendment of the plaint on such terms as it may deem proper. The object and purpose for enacting the aforesaid provision according to the Supreme Court is to avoid multiplicity of suits so that the plaintiff may get appropriate relief without being hampered by procedural complications. The Supreme Court in the said decision also took note of the expression” in an appropriate case” as appearing in Section 22 (1), which was found be very significant. While interpreting the said provisions, it was held by the Supreme Court that the said expression only indicates that it is not always incumbent on the plaintiff to seek possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable property and that has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. The aforesaid preposition laid down by the Supreme Court was further explained holding that it may not always be necessary for the plaintiff to specifically claim possession over the property as the relief of possession is inherent in the relief for specific performance of the contract of sale. It was further held that in a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simplicitor, without specifically providing for delivery of possession, may give complete relief to the decree holder and that in order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree holder, which course of action is in consonance with the provisions of Section 55 (1) of the T.P Act, which provides that the seller is bound to give, on being so required, the buyer or such person as he directs such possession of the property as its nature admits.

9. In the decision of this court relied upon by the counsel for the plaintiff in G.S Kohli's case (supra) this court does not appear to have taken note of the provisions of Section 16 as also the provisions of Section 22 of the Specific Relief Act as also the provisions of Section 55 of the Transfer of Property Act and therefore, in my considered opinion, the said decision is not helpful in deciding the issues raised herein, arguments advanced and the decisions placed herein, arguments advanced and the decisions placed.

10. Thus, in a case where possession of the immovable property is vested with the vendor, in such a case even if no decree for possession is sought for in the plaint, in a suit for specific performance of contract, the court shall have the power to grant a decree for possession of the immovable property in favour of the plaintiff and against the defendant besides granting the relief of specific performance of contract, for relief of possession is inherent in the relief for specific performance of the contract for sale and also in view of the fact that the seller is bound to give such possession of the property as he possesses to the buyer.

11. Although the counsel for the defendant submitted before me that even clause (a) of Section 16 CPC is applicable to the facts and circumstances of the present case, I have my strong reservation on the aforesaid plea. However, I am on agreement with the contention of the counsel for the defendant that clause (d) of the provisions of Section 16 CPC is applicable to the facts and circumstances of the present case as the present suit relates to determination of right and interest in the immovable property at Nainital (U.P).

12. The contention of the counsel for the plaintiff that the suit instituted is only for claiming a decree for specific performance of the contract and not for immovable property, cannot be accepted for the simple reason that although the suit has been framed to be a suit for specific performance of contract, a further declaration is sought for transfer of the property in question in favour of the plaintiff thereby seeking for a decree for possession as well. Even otherwise, in the present case it is an admitted position that possession of the property is with the seller and, therefore, in terms of the provision of Section 55 (1) of the Transfer of Property Act the relief of possession is inherent in the relief for specific performance of the contract.

13. The next contention of the learned counsel for the plaintiff that the present case is covered by the proviso of Section 16 CPC is also found to be misplaced. In my considered opinion, it cannot be said in the present case that the relief in the present suit could be entirely obtained through the personal obedience of the defendant. The aforesaid proviso to Section 16 CPC could be said to be applicable only when the relief sought for by the plaintiff was entirely obtainable through the personal obedience of the defendant i.e when the defendant, has not at all to go out of the jurisdiction the court for the aforesaid purpose. The present is not a case of the said nature. In the present case even after execution of the sale deed possession of the property could be handed over to the plaintiff by the defendant by going to Nainital (U.P) and thus, in my considered opinion, the proviso is not applicable to the facts and circumstances of the present case. In coming to the aforesaid conclusion, I am fortified by the decision of this court in Union Bank of India v. M/s. Logic System (supra).

14. In the light of the aforesaid discussion and conclusion, I am of the considered view that the provision of section 16 cpc is alone applicable to the facts and circumstances of the present case and that the present suit is to be instituted in the court within local limits of whose jurisdiction the property is situated. This court therefore, does not have territorial jurisdiction to entertain and decide the present suit. In that view of the matter, it is held that the present suit is not maintainable in this court and accordingly, the plaint is returned to the plaintiff to file in an appropriate court in terms of the order passed herein. The plaint may be returned to the counsel in accordance with the provisions of law. All applications stand disposed of in terms of this order.

Anil Verman v. Raheja Developers Private Limited.

Judgment Summary — Dr. M.K. Sharma, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Anil Verman v. Raheja Developers Private Limited.

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