1. The short question for consideration in this case is whether the suit filed by the plaintiff-opposite party against defendant-petitioners at Patna shall be governed by S. 16(d) or S. 20(c) Civil P.C
2. The plaintiff-opposite party has filed a suit alleging, inter alia, that defendant-petitioners agreed to sell a property situate at Rohni Road, Jasidih in the district of Santhai Parganas and a sum of Rs. 2,501 was paid by the plaintiff as part consideration. On 28-3-1980 the petitioners intimated the plaintiff by a letter at his Patna address that the petitioners were unable to proceed with the proposed sale of the above property and enclosed a draft of Rs. 2,501/- which had been paid by the plaintiff as part consideration. The agreement to sell was executed at Calcutta where the defendant-petitioners reside and conduct their business. The property is situate at Rohni Road, Jasidih in the district of Santhai Parganas outside the jurisdiction of Patna Court. The plaintiff-opposite party has prayed for a decree for specific performance of the agreement to sell the property situate at Jasidih on payment of balance of the consideration money amounting to Rs. 45,874/- to the petitioners. The plaintiff has further prayed that in case the defendants failed to register the sale deed, the sale deed should be registered through the Court and the plaintiff be put in possession of the property so conveyed. They also prayed for permanent injunction restraining the defendants from transferring the said propety to anybody else.
3. The defendants took an objection in the suit before the Subordinate Judge 1st Court, Patna, regarding jurisdiction. It was contended that the Patna Court had no jurisdiction to try the suit inasmuch as the land was situate at Jasidih outside the jurisdiction of Patna Court and the defendants resided at Calcutta which too was beyond the jurisdiction of the Patna Court. The learned Subordinate Judge held that since part of the cause of action arose at Patna, the suit could be filed at Patna under S. 20(c), Civil P.C
4. Mr. K.D Chatterji learned counsel appearing on behalf of the petitioners contended that the suit is not merely for specific performance of the contract but is also for possession and, therefore, it can lie only in a Court within whose jurisdiction the property is situate or where the defendants reside. He relied upon the case of New Mofussil Co. Ltd. v. Sankarlal Narayan Das Mundade, AIR 1941 Bom 247. That was also a suit for specific performance and possession. The property was situate at Dhulia and belonged to a limited company with its registered office in Bombay. The vendee resided at Dhulia. Before the transaction was completed the liquidator put an end to the negotiation and sold the factory to some other person. The vendee sued the company and the subsequent purchasers of the factory for specific performance of the agreement and for possession of the factory. It was held that Dhulia Court alone had jurisdiction to try the suit against the company as well as the subsequent purchasers under S. 16(d) of the Code as the suit in the form in which it was brought was not a suit in personam. Mr. Chatterji also relied upon a decision of the Madras High Court in S. Muhammad Eusoof Maricar v. K. Subramanian Chettiar, AIR 1950 Mad 272. In this case a non-resident foreigner entered into a contract for sale of a house which was situate within the jurisdiction of Indian Court, a suit by the vendee for specific performance of that contract and for recovery of possession was held to be maintainable by the Indian Court within whose jurisdiction the property was situate.
5. Mr. S.C Ghose learned counsel appearing on behalf of the plaintiff-opposite party, on the other hand, submitted that this was purely a suit for specific performance of a contract and did not create any interest in or charge over any property and, therefore, the suit could be filed at Patna where the cause of action arose in part. He relied upon the case of Matanhella Brothers v. Shri Mahabir Industries Pvt. Ltd., AIR 1970 Pat 91. This was not a case relating to land but it related to moveable property and is not applicable to the facts of the present case. He then relied upon a decision of this Court in Sukhilal Sah… v. Angrahit Jha…Opp. Party. Jha, 1979 Pat LJR 544 : (AIR 1980 Pat 18). The question for consideration in that case was whether the suit for specific performance of contract comes within the mischief of S. 4(c), Consolidation Act. It was held that a contract for sale of land did not itself create any interest in or charge on such land, and, therefore, such a suit did not come within the mischief of S. 4(c), Consolidation Act. The Court was considering regarding a pure suit for specific performance of contract. But, where the suit is not merely for specific performance of contract but also for possession it cannot be said that it does not create any interest in or charge over the land.
6. So far the present case is concerned the plaintiff has specifically prayed not only for specific performance of the contract but also for being put in possession over the property in suit. Such a suit is covered by S. 16(d), Civil P.C and not S. 20(c) of the Code as has been held by the learned Subordinate Judge. The property in the present case is situate at Jasidih which is outside the jurisdiction of Patna Court. The Patna Court, in my view, has obviously no jurisdiction to try such a suit.
7. The application, therefore, succeeds, the impugned order dated 2-6-1981 passed by the learned subordinate Judge is set aside and the suit is held to be not maintainable at Patna There shall be no order as to costs.
Application allowed.