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civil_laws:sections:section-16

Suit to be instituted where subject-matter situate

Section 16 of the Code of Civil Procedure,1908.

Subject to the pecuniary or other limitations 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 mortgage of or 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 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 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.

Explanation: In this section “property” means property situate in India.

Legislative Changes

The words “with or without rents or profits” have been added in clause (a). According to the report of the Select Committee the insertion of these words is intended “to remove any difficulty, there may be, where the defendant does not reside within the local limits of the Court within whose jurisdiction the property is situate.” The word “sale” has been newly added in clause (c).

Scope and object of the Section

This Section deals with local or territorial jurisdiction. Suits for the recovery of immovable property, or for the determination of any other right or interest in immovable property or for the recovery of immovable property actually under distraint or attachment must, under this Section, be instituted in the Court within the local limits of whose jurisdiction the property is situate.

Territorial or local jurisdiction: Every court has its own local or territorial limits beyond which it cannot exercise its jurisdiction. These limits are fixed by the Government. The District Judge has to exercise jurisdiction within his district and not outside it. The High Court has jurisdiction over the territory of a State within which it is situate and not beyond it. Again, a court has no jurisdiction to try a suit for immovable property situated beyond its local limits.1)

The object of the Section is to limit the territorial jurisdiction of Courts in regard to the property that they are entitled to deal with. As a rule therefore, Courts have no power to decide on rights and interests in property lying outside their local jurisdiction. The Explanation to the Section makes it also clear that Courts of this country have no power to entertain suits in respect of property situate outside India.

But the Section does not preclude the Courts from trying any question in respect of property lying outside their territorial jurisdiction where such question arises incidentally. Nor is the Section confined to suits involving only immovable property. It applies to suits for the recovery of immovable property as well as movable property provided the immovable property is situate wholly or in part within the Court’s local jurisdiction.

Subject to the pecuniary and other limitations prescribed by law

For pecuniary limitations, see Section 15. For instances of other limitations, A suit under Section 92 of the Code must be instituted in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government.

Immovable property

The phrase immovable property has not been defined in the Code but moveable property has been defined in Section 2 (13) as including growing crops. The definition of immovable property in Section 3 (26) of the General Clauses Act, X of 1897 read with Section 2 (13) of the Code, will therefore govern the meaning of those words for the purposes of the Code. Under Section 3 (26) of the General Clauses Act, immovable property includes:

  1. land,
  2. benefits to arise out of land, and
  3. things attached to the earth, or permanently fastened to anything attached to the earth.

Land

The word ‘land’ includes water covering the land and includes a jalkar or a right of fishery. Jalkar includes the right to drift stranded timber as well. The right to fish in territorial sea waters is, however, common to all and is not property of any kind.

Benefits to arise out of land

These include incorporeal hereditaments as issue out of, or are connected with immovable property so called and savouring of realty such as rights of common, rights of way and profits in alieno solo such as rents, pensions and annuities secured upon land. A right of ferry, an easement, the interest of a Hindu widow in the rents of her husband's lands, a malikana right and a haq-i-chaharum or liability to pay customary dues attached to land, are all within the definition of immovable property. But a sayer compensation, i.e., duty which an owner of a bazaar levies on commodities sold there is not immovable property. Nor is a chance of acquiring a right to light and air, immovable property inasmuch as it is incapable of any valuation at all.

It is the nature of the thing that has ordinarily to be looked to for determining whether it is immovable property. But in certain cases a right is, in law, deemed to be immovable property, independent of the nature of the right. Thus, hereditary offices are, by Hindu law, regarded as immovable property; so is a right to levy a cess or rate granted by the Peshwa.

A mortgage is an interest in immovable property and is therefore itself immovable property. For the purposes of execution by attachment and sale of such debt, however, it is only moveable property. The reason is this : the definition of immovable property as well as other definitions given in Section 3 of the General Clauses Act apply only where there is no repugnancy thereto in the subject or context. Order. 21 Rule. 46 relating to the attachment of debts, constitutes such a repugnancy in respect of execution by attachment and sale of mortgage debts. Where a decree is passed on a mortgage and a right to, or interest in, immovable property has thus been determined, the mortgage decree is not immovable property. Nor does a right to mesne profits under a decree constitute immovable property. An equity of redemption is clearly immovable property.

Things attached to the earth

Trees standing on land are immovable property. There was a conflict of opinion under the old Code as to whether growing crops can be treated as immovable property for the purpose of the Code. The conflict has been removed now by the provision of clause 13 of Section 2 of this Code that moveable property includes growing crops. Tiled huts are immovable property. So are doors and windows which are fixed to, and are part of, a building.

Suits for recovery of immovable property

Clause (a): This clause refers to suits to recover possession of immovable property where the title to that property is alleged by one side to be in him and by the other side to be in him. But as has been seen already, the property must be one in India. Where the properties are within India, but within the jurisdiction of different Courts, a suit for the recovery thereof may, under Section 17, be instituted in any Court within the local limits of whose jurisdiction any portion of such properties is situate.

A suit for the recovery of property after setting aside a decree must be brought in the Court within whose local limits the property is situate though the decree may be that of another Court. But if the suit is merely to set aside the decree without anything more, it may be instituted in the Court which passed the decree though the properties affected by the decree are situate elsewhere.

Suits for partition of immovable property

Clause (b): A suit for the partition of immovable property must be brought in the Court within whose jurisdiction the property is situate. As to where the properties are situated in different jurisdictions, see Section 17. Where the property is situate outside India, the Court cannot grant any relief in respect of such property.

Suits for foreclosure, sale or redemption

Clause (c): Suits foreclosure or for sale or for redemption of a mortgage, being suits for reliefs respecting immovable property, must be brought within the local limits of whose jurisdiction the property is situate. If the land is therefore beyond the Court's local jurisdiction, the suit is incompetent. But a Court is not precluded in a suit for redemption from incidentally deciding questions relating to the mortgaged property held by the defendants outside the jurisdiction for the purpose of deciding plaintiff's right to recover the mortgaged property within the jurisdiction. A suit by a purchaser for contribution in respect of a payment made on account of an arrear of revenue against a person on whose part there is no personal obligation to pay but whose estate alone is liable, must be brought within the local limits of the jurisdiction of the Court where the property is situate. Where a party brings a suit on a hypothecation bond in a Court which has no jurisdiction over the hypothecated property, the decree passed can be looked upon only as a money decree.

Where a suit, say for foreclosure or for redemption, is brought in the Court of a particular district within whose limits the properties are situate, but before final decree is passed the territorial jurisdiction of the Court is transferred to another Court, the original Court's jurisdiction is not lost and a final decree for foreclosure passed by the original Court is not bad; the reason is that once a Court gets validly seised of the case, the subsequent proceedings will not divest it of jurisdiction.

Suit for the determination of any other right to, or interest in, immovable property

Clause (d): A suit for the determination of any other right to, or interest in, immovable property must, under clause (d), be instituted in the Court within the local limits of whose jurisdiction the property is situate. If the property be situate within jurisdiction, the Court has power to try a suit in respect thereof even though the parties may happen to be residents in a foreign State. But it is necessary that the suit itself is for the purpose of determining such rights: it is not enough, for the clause to apply, to that the relief granted in the suit would indirectly affect rights in immovable property. Thus, a suit for a declaration that a will is a forgery, or that a certain adoption is invalid, or a suit for an administration of an estate which does not involve a direct dealing with property outside jurisdiction, or a suit for dissolution of partnership, or to have certain lands registered as owner in the revenue records, or for money paid as compensation for land acquired under the Land Acquisition Act, or a suit on an agreement to lease, is not within this clause notwithstanding the fact that the relief claimed may indirectly affect rights to or interest in immovable property.

Suits in respect of the following rights have been held to be suits for the determination of an interest in immovable property:

  1. A right to a toda giras hak.
  2. A right to the possession and management of a saranjam.
  3. A right to open a water-course through land.
  4. A right to hold land free of Government assessment.
  5. A mortgage right.
  6. Annual allowance charged on immovable property.
  7. A right to emoluments of a hereditary office arising out of a grant by the sovereign power, but not if the emolument is due by custom.
  8. A right to eject a person from land coupled with a right to recover rent.
  9. A right to future rent where such right is denied, but not a right to arrears of rent accrued due.
  10. A right to maintenance or other amount to be charged on immovable property.
  11. Suit under Paragraph 20 of Schedule II, to file an award declaring the proprietary title to immovable property.

Where a dispute referred to arbitration out of Court involves the determination of a right to or interest in immovable property, the Court will have no jurisdiction to file the award if the property is situate outside the jurisdiction of such Court.

Suits for compensation for wrong done to immovable property

Clause (e): This clause applies to all wrongs of a civil nature affecting immovable property, such as trespass, nuisance, etc. Such suits must be instituted in the Court within the local limits of whose jurisdiction the property is situate.

Suits for the recovery of moveable property actually under distraint or attachment

Clause (f): It is a general maxim of law that movables follow the person — mobilia sequuntur personam. They have no visible locality of their own and follow the law of the person. Where, however, moveable property is attached, the locality becomes fixed and a suit to recover such property must be instituted in the Court within whose jurisdiction it is. Thus, where moveable property situated in a foreign State and belonging to a person within the jurisdiction of a Indian Court is under attachment of a Civil Court of such foreign State, the Indian Court has no jurisdiction to deal with such moveable property.

Where the relief sought can be entirely obtained through his personal obedience

Proviso: This proviso is based on the well known maxim equity acts in personam whereby the Court looks to the fulfilment of its decree to the person of the defendant. The principle on which this maxim itself is based is that Courts can give relief in suits respecting immovable property situate abroad by enforcing their judgments by process in personam, i.e., by arrest of the person of the defendant or by attachment of his personal property. But in order to do this it is essential that the defendant must either reside or carry on business or personally work for gain within the local limits of the jurisdiction of the Court. In Ewing v. Orr Ewing2), Lord Selborne observed as follows :

The Courts of Equity in England are, and always have been, Courts of conscience operating in personam and not in rem ; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not either locally or ratione domicilii within their jurisdiction. They have done so, as to land, in Scotland, in Ireland, in the Colonies, in foreign countries.”

The jurisdiction of Courts in this country is governed and must be ascertained by the same principles except so far as they may be at variance with the legislative enactments. Such jurisdiction must, with regard to the High Court, be considered with reference to the Letters Patent and, with regard to the provincial Courts with reference to this proviso. It must be noted, however, that the only cases in which Courts of Equity in England exercise jurisdiction in personam are

  • cases of contracts such as suits for the specific performance of contracts for sale of land or for foreclosure, sale or redemption of a mortgage,
  • cases of fraud as where lands abroad have been acquired by the fraud of a party residing within the jurisdiction, and
  • cases of trust as where a suit is filed against a person residing within jurisdiction, to enforce an express trust affecting land outside jurisdiction.

But suits directly involving title to property, such as suits for the recovery, partition, or damages for trespass of immovable property situate abroad, will not be entertained.

The proviso applies only:

1. Where the relief is respecting immovable property situated within and not beyond India. It has been held by the High Court of Madras that if the relief sought is in respect of movable property situate in a foreign State and can be obtained entirely through the personal obedience of the defendant, within the jurisdiction, a decree in personam can be passed. It has also been held by the High Court of Bombay and by the Judicial Commissioner’s Court at Nagpur that even if the proviso may not be applicable to cases of land situate outside India, the English law with regard to jurisdiction in personam will apply to Courts in India and that accordingly a suit to recover mesne profits of land situated outside India can be instituted in India if the relief can be obtained entirely through the personal obedience of the defendant.

2. Where such property is held by or on behalf of the defendant.

3. Where the relief can be obtained entirely through the personal obedience of the defendant. The expression ‘personal obedience’ must be interpreted with special reference to the fact that the defendants reside, or work within the jurisdiction of the Court whose order is to be obeyed ; the obedience must be such as the defendants could render without going beyond jurisdiction. In the case of more than one defendant, the proviso will not apply unless all the defendants reside or work within the jurisdiction. The onus is on the plaintiff to show that the defendant is personally subject to the Court's jurisdiction.

A suit for rent is not a “suit to obtain relief respecting immovable property” within the meaning of the proviso to this Section. A suit for arrears of rent is therefore governed not by this Section but by Section 20.

Held by or on behalf of the defendant

The proviso will apply only where the property is held by or on behalf of the defendant. Thus, in a suit for damages for trespass on land where the plaint alleged that the land in dispute was in possession of the plaintiff, it was held that he was not entitled to the benefit of the proviso. Further, the property must be so held at the time of the institution of the suit.

Suits for specific performance of an agreement

There is a difference of opinion as to whether a suit for specific performance of a contract to sell land is a suit for land or for the determination of any right to or an interest in, immovable property. A suit for specific performance of an agreement entered within the jurisdiction without a prayer for possession is maintainable even though the property is situated outside within the jurisdiction of the Court on the ground that there is no requirement to decide the right, title and interest of the parties to the suit and the plaintiff is merely seeking to enforce an agreement for sale and not possession. 3) In a Suit for specific performance an Ad interim injunction cannot be granted by a Court within whose jurisdiction parties reside but immovable property is situated outside its territorial jurisdiction. Delhi High Court in 2007 held that in a Suit for specific performance of agreement to sell where relief of possession not claimed, suit can be instituted within local limits of Court having jurisdiction where defendant carries on business and has its Registered Office.

1)
Justice C.K. Thakker (Takwani)
2)
14 Ind Cas 279 (282) Mad
3)
See. Adcon Electronics Pvt. Ltd. Vs. Daulat and Anr. reported at (2001) 7 SCC 698.

Created on 2021/03/19 10:18 by LawPage • Last modified on 2021/04/09 22:25 (external edit)