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]
