REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1052 OF 2019  

SHIVNARAYAN (D) BY LRS.         ...APPELLANT(S)  

VERSUS

MANIKLAL (D)THR. LRS. & ORS.         ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

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 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

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declaring various transfer 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 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 genealogy of the parties:- “Kaluram Bairulal Vaidya

(Since Deceased dt. 15/08/1969)

Shankarlal Maniklal     Babulal  Shivnarayan (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)”

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2.2 In Para No.1 of the plaint, description of

the 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) 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.) 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

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

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Babulal  shifted  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 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 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

were prayed in Para No. 25 of the plaint:-

“A)  The  property  mentioned  in  Para No.1 of the Plaint and its deed

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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  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.  

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  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  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

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undivided  Hindu  family. Therefore, Late. Vimal Vaidya was not  authorized  to  execute  that alleged  will  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 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 mis-joinder of parties as well

as causes of action.  The defendant Nos. 7

and 8 pleaded that there is no nexus at all

between the two properties – one situate at

Indore  and  other  at  Mumbai.    Details  of

different causes of action and nature of the

properties,  details  of  purchasers  for  both

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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.  Mumbai property was

acquired by Babulal in his own name and after

his death on the basis of succession, it has

come to his sole heir Smt. Vimal Vaidya in

the year 1975.  It was 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 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 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,

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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.”

 2.5 The trial court after hearing the parties on

the application dated 19.03.2011 filed by the

defendant Nos. 8 and 9 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 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 Civil

Procedure Code, 1908 held that for property

situated at Mumbai, the trial court committed

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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.

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  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 contemplate that

there can be a decree of an immovable property, which

is  situated  outside  the  local  limits  of  the

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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  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. 8

and 9 refuting the submissions of learned counsel for

the  appellant  contends  that  no  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 of the property” indicate that

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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 are different.  The purchasers of

both the properties, i.e. Indore property and Mumbai

property are also different.  According to pleadings

in  the  plaint  itself,  the  Mumbai  property  was

purchased  by  Babulal,  the  husband  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 is no nexus

with  the  properties,  transactions  and  persons.

Learned  counsel  for  the  defendant  Nos.  8  and  9

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

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death  of  her  husband,  which  was  rightfully

transferred  by  her  to  defendant  Nos.  8  and  9  on

15.10.2007.  It is submitted that the Court at Indore

might proceed with 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  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 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

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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.

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:-

17.  Suits  for  immovable  property  situate within jurisdiction of different Courts.-- Where  a  suit  is  to  obtain  relief

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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.

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 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 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

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is situated can entertain the suit.  Whether Section

17 applies only when a composite 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:-

13. Gender and number.-In all Central Acts and Regulations, 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, 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.   

11. The word “property” under Section 17 of the Civil

Procedure code may also be properties, hence, in a

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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 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.   

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.   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

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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  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, inasmuch as the mortgaged properties in Belgaum are within the jurisdiction of a different  Court  in  British  India,  he  had jurisdiction to deal with those properties also.”

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

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

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the Sonthal Parganas, but also in the Gaya District.  What  is  the  ordinary  rule  for 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 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.  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 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; 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.

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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. 376; Jayaram v. Atmaram, (1879) 4 Bom. 482;”  

15. A Full Bench of Allahabad High Court in Kubra Jan

Vs. 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:-

“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 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  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

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property  the  Court  ceased  to  have  any jurisdiction  to  deal  with  the  plaintiff's claim,  that  is,  that  though  the  Bareilly 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 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 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 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  been  held  to  be

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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  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 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

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clubbed together. One of 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 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  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. upon which the respondent relied.”

19. A  Two-Judge  Bench  judgment  of  Allahabad  High

Court has 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

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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

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

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 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  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

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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 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  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 husband's estate did not give rise to one cause  of  action  against  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  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 down:-

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“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  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 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  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 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  or  cannot  be  so  described  will depend again upon the nature of the dispute between the parties. If there is a dispute,

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for  instance  about  a  single  estate  which both parties are claiming as a whole 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 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.

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  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 different persons each of whom resides at the place where the property transferred to

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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 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. 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

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

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Court as well as property situated outside the local

limits of the jurisdiction of the Court passing the

decree. 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 Court 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.

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

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where parties agree to keep some property joint and

get partition 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, 16th Edition in paragraph

485 following has been stated:

“485.  Partition  partial  or  total.- Partition may be either total 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 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:

“”327.  Partial  partition.-(1)  A  partition between coparceners 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

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properties,  it  cannot  be  held  that  such properties  continued  to  be  joint properties, since there was a division of title,  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.”

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 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  scheme.  Section  16  contains  general

principle  that  suits  are  to  be  instituted  where

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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.

(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 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 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  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

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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  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 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

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

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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 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 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 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.  Relying  on

Order II Rule 3 learned counsel for the appellant

submits  that  joinder  of  causes  of  action  is

33

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

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 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  of

parties and causes of action”. In Para (1) of the

application,  it  was  categorically  mentioned  that

34

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  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.

34. We do not find any merit in this appeal, the

appeal is dismissed accordingly.  

......................J.                         (ASHOK BHUSHAN )

......................J.  New Delhi, (K.M. JOSEPH ) February 06, 2019.        

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