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civil_laws:sections:section-17

Suits for immovable property situate within jurisdiction of different courts

Section 17 of the Code of Civil Procedure,1908.

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.

Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.

Legislative Changes

Section 19 of the old Code corresponding to this Section, applied only where the properties were situate within the limits of a single district but within the jurisdiction of different Courts. The words “within the limits of a single district but“ and the third paragraph have now been omitted.

Scope and object of the Section

This Section is practically another proviso to Section 16. That Section provides, as has been seen already, that all suits for relief respecting, or for compensation for wrong done to, immovable property, shall be instituted in the Court within whose jurisdiction the property is situate. This Section enacts that where a suit is brought in respect of property situated in the jurisdiction of different Courts, a suit in respect thereof can be brought in any one of the Courts and such Court can deal with the whole of the property, though some portion of it is situated outside its jurisdiction. And the rule applies whether several properties are situated in different districts or the same property extends over several districts. The Section is intended for the benefit of suitors and to prevent multiplicity of suits. It embraces evidently all the suits relating to immovable property to which Section 16 may apply. But it applies only where the properties are situated in India and in jurisdictions to which the Code applies. Under the Code of 1859, leave had to be obtained from a superior Court to institute a suit in one Court in respect of properties situated in several districts. No such sanction is now necessary.

Courts

The word Courts in Section 17 must be held as meaning Courts to which the Code applies. Thus, where some of the lands comprised in a mortgage are situated in the jurisdiction of Court A and some in a scheduled district to which the Code does not apply, the Court A cannot, in a suit for sale on the mortgage, order the sale of the property in the scheduled district.

Selection of forum

The Section gives an option to the plaintiff of bringing his suit in any Court within whose jurisdiction a portion of the subject-matter is situate. This is based on the general principle of law that where a suit can be instituted in more Courts than one, the plaintiff has a right to select his own forum, A portion of the property, however, must actually be existing in the jurisdiction of the Court in which the suit is brought. Where a mortgage deed mentioned non-existent property within one jurisdiction and existing property in another, and a suit was brought on the mortgage in the Court situated in the former jurisdiction, it was held that the Court was not competent to grant a decree for sale.1)

Where a suit in respect of a house and certain land was filed in a Court within whose jurisdiction the house alone was situate and an appeal from the decree in the suit was filed in the Court to which appeals lie from the decrees of that Court, it was held that the fact that the plaintiff abandoned his claim in respect of the house in appeal and that the appeal related only to the land which did not lie within the jurisdiction of the Appellate Court, would not affect the jurisdiction of that Court to hear the appeal.2)

Different causes of action

Where a plaintiff has two or more causes of action in the suit, he can take advantage of the provisions of this Section if the joinder of such causes of action is permitted by the provisions of O. 1 R. 3 and O. 2 R. 3. If he cannot do so and the joinder of such causes of action is bad for multifariousness, then the suit cannot be tried in either of the Courts within whose jurisdiction the properties are situate.

Separate suits

Where the plaintiff has a cause of action in respect of properties situated within the jurisdiction of different Courts, there are two courses open to him :

  1. he may file a suit on the whole claim in any one of the Courts, or
  2. he may file separate suits on the same cause of action in respect of each of the properties situated within the jurisdiction of the said Courts, and none of such suits will operate as a bar to the others. In other words, it leaves untouched the jurisdiction of each Court to entertain a suit in respect of the portion of the property situate within its jurisdiction.

Effect of withdrawing part of claim

The subsequent withdrawal of a part of the claim does not affect the jurisdiction of the Court to dispose of the other part of the claim. Thus, where a suit is brought in Bareilly in respect of the properties situate, one in Bareilly District and the other in the district of Bara Banki and the claim in respect of the lands in Bareilly is withdrawn or compromised or abandoned by the plaintiff, the Bareilly Court does not thereby lose its jurisdiction to proceed to adjudicate on the claim respecting the property in Bara Banki unless the withdrawal or compromise or abandonment is fraudulent or is a mere device to evade the provisions of the Code as to local jurisdiction.

Similarly, the fact that at the time of the decision the plaintiff is found not to have title to a portion of the property within jurisdiction, as alleged, does not take away the jurisdiction unless the inclusion of such portion is not bona fide. The principle is that when once jurisdiction is vested in Courts, it cannot be divested by any act of the parties.

Execution against property outside jurisdiction

The provisions of Sections 38 and 39 indicate that the general principle of law is that no Court can execute a decree in which the subject-matter of the suit or of the application for execution, is property situated entirely outside the local limits of its jurisdiction. Suits under this Section in respect of properties within the jurisdiction of more Courts than one are an exception to this rule. Where a Court has acquired, under this Section, jurisdiction over property situated partly within its limits and partly outside it, it will continue in execution proceedings also. For instance, a Court that has jurisdiction to pass a decree for sale of property comprised in a mortgage can sell the whole of the property in execution of the decree even though a portion of the property be situated outside the local limits of its jurisdiction. The reason is that the proceedings in execution of a decree are only a continuation of the proceedings in the suit in which the decree is passed. And if a Court has jurisdiction to try the suit and to pass a decree therein, it follows that it has jurisdiction to sell all the properties comprised in the decree though some of them may be beyond its jurisdiction. The Court may, however, in its discretion, under Section 39 of the Code, send the decree for execution to the other Court.

Counterclaim

No counterclaim can be entertained unless the Court dealing with the original action has also jurisdiction both territorial and pecuniary in the matter of the counterclaim.3) So section 17 is applicable to a counter claim filed by defendant.

1)
AIR 1914 PC 67
2)
AIR 1938 Oudh 65
3)
See Sushil Kumar Agarwal vs Ajay Kumar Saraff & Anr on 3 April, 2019

Created on 2021/03/20 11:50 by LawPage • Last modified on 2021/04/09 22:25 (external edit)