"High Time That Subordinate Courts Come Into Grips With Fundamental Principles Of CPC": Madras High Court

The Madras High Court recently observed that it is high time that the subordinate Courts come into grips with the fundamental principles of CPC and nip in the bud those suits which are not maintainable.The bench of Justice N. Anand Venkatesh observed that there are sufficient provisions in CPC to undertake such an exercise and what is required is the awareness about the availability of such provisions and invoking the same in a pro-active manner.The remarks were made while setting aside a decree passed by the lower Appellate Court with respect to schedule properties, on the ground of lack of territorial jurisdiction.It allowed a second appeal filed by one Chinnasami and observed that the trial court had no jurisdiction to entertain the plaint and had erroneously gone into the merits of the case. The court held that the lower appellate court also erred in going into the merits of the case without giving any consideration to the question of jurisdiction. The court thus observed that the trial was hit by the principal of Coram non-judice and must be held to be a nullity.BackgroundThe plaintiff in the original suit had filed the on the ground that the 1st schedule of the suit properties are the self-acquired properties of the paternal grandfather of the plaintiff and the 2nd schedule properties are the ancestral properties of the paternal grandfather which fell to his share by virtue of a registered partition deed dated 24-11-1959. Through two wills, these properties were executed in favor of the plaintiff by his paternal grandfather. The said grandfather passed away on 29-3-1991 and the Wills executed by him came into force and thereby, the plaintiff became the absolute owner of the 1st and 2nd schedule properties.The plaintiff claimed that he had given possession of the 2nd schedule property to the defendant who then created sham and nominal documents with respect to the property as if the property belonged to him. The defendant thus interfered with the enjoyment of the property by the plaintiff. Hence, the plaintiff approached the court seeking a permanent injunction regarding the 1st schedule and recovery of possession by way of a mandatory injunction with respect to the 2nd schedule.The defendant, in his written statement, submitted that he was one of the grandsons of the original owner of the property. The defendants took a specific plea that, the 1st defendant was enjoying the 2nd schedule properties along with the other properties allotted to the father of the 1st defendant during partition, openly and uninterruptedly for nearly 28 years and were cultivating the lands and this fact was known to the plaintiff and his father who never objected the enjoyment of the properties by the 1st defendant. The defendants questioned the genuineness of the Will dated 1-11-1990 and took a stand that it was a fabricated document.The court observed that there was no dispute with respect to the entitlement of the plaintiff with respect to the 1st schedule properties and the defendants had made it clear that they never interfered with the possession and enjoyment of the 1st schedule properties. Thus, there was no cause of action to institute the suit for the 1st schedule properties. The court observed that in such circumstances the present suit must have been seen only as a dispute between the parties with respect to the 2nd schedule properties. From this perspective, there was no territorial jurisdiction for the trial Court to try the suit.The court opined that the plaintiffs were seeking the benefit of Section 17 of CPC. The same could not be invoked in the present case as the dispute was technically limited to the 2nd schedule property which was outside the territorial jurisdiction of the court."The sine qua non to take advantage of Section 17 of CPC, is that there must be a cause of action for the plaintiff with respect to all the properties which forms part of the suit. If Section 17 is not interpreted in this manner, a suitor can easily hoodwink the Court by just citing one property which falls within the jurisdiction of the Court and agitate the actual cause of action with respect to other properties which falls outside the territorial jurisdiction of the Court."The court held that the order of the trial court was a nullity as it lacked territorial jurisdiction and that the court should not have even gone into the merits of the case."It is high time that the subordinate Courts come into grips with the fundamental principles of CPC., and nip in the bud those suits which are not maintainable. There are sufficient provisions in CPC., to undertake such an exercise and what is required is the awareness about the availability of such provisions and invoking the same in a pro-active manner."The court further stated that if the courts below had been careful enough and had dismissed the suit then and there, the suit which was instituted in 2008 would not have dragged on for 14 long years.CaseTitle: Chinnasami and Ors. v....

"High Time That Subordinate Courts Come Into Grips With Fundamental Principles Of CPC": Madras High Court

Upasana Sajeev

Tags