Section 16 of the Code of Civil
Procedure, 1908 (“Code”) provides that suits relating to immovable property shall
be instituted in the Court within the local limits of whose jurisdiction the
property is situated. However, there is also a proviso which provides that
where relief (respecting, or compensation for wrong to, immovable property) can
be ‘entirely obtained’ through defendant’s personal obedience, suit can
be instituted 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 (The underlined part can also be found in clause
(a) and (b) of section
20 of the Code). Explaining the scope of section 16, the Supreme Court of
India (“Supreme Court”), in Harshad
Chiman Lal Modi v. DLF Universal Ltd.,[1]
opined that:
“16. Section 16 thus recognises a well-established
principle that actions against res or property should be brought in the forum
where such res is situate. A court within whose territorial jurisdiction the
property is not situate has no power to deal with and decide the rights or
interests in such property. In other words, a court has no jurisdiction over a
dispute in which it cannot give an effective judgment. The proviso to Section
16, no doubt, states that though the court cannot, in case of immovable
property situate beyond jurisdiction, grant a relief in rem still it can
entertain a suit where relief sought can be obtained through the personal
obedience of the defendant. The proviso is based on a well-known maxim “equity
acts in personam”, recognised by the Chancery Courts in England. The Equity
Courts had jurisdiction to entertain certain suits respecting immovable
properties situated abroad through personal obedience of the defendant. The
principle on which the maxim was based was that the courts could grant relief
in suits respecting immovable property situate abroad by enforcing their
judgments by process in personam i.e. by arrest of the defendant or by
attachment of his property.”
Where the main part of section 16
is applicable, section 20 of the Code would have no application in view of the
opening words in section 20 “subject to the limitations thereof”.[2] Where a suit is filed for recovery of immovable properties or determination of any
right or for interest in immovable properties, only the Court within whose
local limits the properties are situated shall have the jurisdiction.[3]
In other words, the language of section 16 is very wide and all cases, in which
prayer for declaration of any right or interest in immovable property is made
or its sale is asked for, must be filed in the Court which has territorial
jurisdiction over such immovable property.[4]
Even where a ‘declaratory relief’
is claimed, section 16 would be applicable if the relief is in respect of right
or interest in immovable property.[5]
However, where controversies revolve around the rights and liabilities of the
parties arising out of Memorandum of Understanding, reliefs claimed by the
plaintiffs may not be squarely covered by clause (d) of Section 16.[6]
Similarly, where a proceeding is for recovery of money and not for enforcement
of mortgage (immovable property), a suit can be instituted in accordance with
section 20 of the Code.[7]The
right which is contemplated by clause (d) of section 16 has to be a right akin
to the rights which have been mentioned by the earlier clauses or the
subsequent clauses.[8] Same
analogy can be drawn for other clauses as well.
The proviso is an exception to the main part of the section which cannot be
interpreted or construed to ‘enlarge’ the scope of the principal provision. It
would apply only if the suit falls within one of the categories specified in
the main part of the section and the relief sought could entirely be obtained
by personal obedience of the defendant.[9]
Proviso to section 16 is applicable only when the relief sought is obtainable
through the personal obedience of the defendant, i.e., when the defendant has
not at all go out of the jurisdiction of the court for such purpose.[10]
It enables a person a person to file a suit in the court within local limits of
whose jurisdiction the defendant actually or voluntarily resides or carries on
business or personally woks for gain.[11]
However, the proviso cannot be
explained in a manner that for every relief under section 16 CPC personal
obedience is pleaded. That is, personal obedience cannot be stretched to such
an extent that Section 16 of CPC itself becomes redundant.[12]
The proviso covers only suits to obtain compensation for wrong to immovable
property or other relief in respect of immovable property where the relief
sought can be entirely obtained through the personal obedience of the defendant.[13]
Where a dispute relates to a ‘name’ that is given to a building, proviso to
section 16 would be applicable (since the relief can be obtained through
personal obedience).[14]However,
in a suit of specific performance (along with claim for possession) before a court,
where relief cannot be ‘entirely’ obtained through the personal obedience of
the defendant, such court would not have jurisdiction over the immovable
property.[15]
Evidently, stipulations under section
16 of the Code are indicative of the difficulties which may arise, if a suit is
filed in a court within whose jurisdiction immovable property is not situated. Enforcement
of a court order becomes easier when the subject-matter is in its jurisdiction
and, considering the important nature of issues involved in relation to
immovable property, an expedient enforcement is crucial. For instance, in a suit
for redemption of an immovable property, mortgagor may be in an urgent need of
the property. Delay in the enforcement of an order may put the mortgagor under
considerable difficulty.
[8] Diamond and Gem Development Corporation Ltd.
v. Morex Petrochem Pvt. Ltd., (2013) 3 Mah LJ 458, 462
[9] Harshad Chiman Lal Modi v. DLF Universal
Ltd., (2005) 7 SCC 791, 801; Splendor Landbase Limited v. Mirage Infra
Limited, ILR (2010) 4 Del 631, 644
[15] M.K. Sharma v. Tek Chand, ILR (2011)
6 Del 652, 672; Bhawna Seth v. DLF Universal Limited & Anr, (2007) 94 DRJ
710, 721
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