In the affidavit filed by the first defendant the following are stated:-
The suit has been filed on a mortgage. The first defendant has filed a detailed written statement and it has been specifically stated that the property mortgaged is at Door No.162-16, First Street, Ravi Colony, St.Thomas Mount, Chennai-16 and this Honourable Court has no jurisdiction and probably the jurisdiction is only with the District Court, Chengalpet It is also pointed out in the written statement as follows: “The plaint in para has made a laconic averment that “leave to sue has been obtained against the defendants and this property in Application No.---/2001 by an order dated ...... “. Thus deliberately proper particulars were not given namely the Application No., and date of order in the copy of the plaint served on this defendant.”
2. In the counter filed by the plaintiff it is stated that the present application of the first defendant challenging the jurisdiction and maintainability of the suit in this Court and whether the suit is bad for mis-joinder of several cause of action as a preliminary issue is not maintainable in law and facts. After the Act 104 of 1976 amendment, the Court is bound to deal with all the issues arising in the suit and incidentally decide the issue regarding the jurisdiction as well as combining the causes of action with regard to various claims made in the plaint. Admittedly the plaintiff has taken several adjournments and has resorted to the present application solely with a view to protract and prolong the proceedings which lacks bonafides. The application is misconceived, unsustainable and untenable in law and facts and the same is devoid of merits and liable to be rejected and dismissed.
3. The Point for consideration is as follows:
Whether the issue as to territorial jurisdiction of this Court and the issue with regard to mis-joinder of cause of action have to be tried as preliminary issues? Point:
4. The suit has been filed by the plaintiff on mortgage executed by second defendant on 10.7.1998 borrowing a sum of Rs.4 lakhs with respect to the property in Door No.1/62-16, Ravi Colony, St.Thomas Mount, Chennai-16. It is the main contention of the applicant that since the suit property is situate outside the territorial jurisdiction of this Court, this Court is not competent to try the case. But it is contended that as per clause 12 of the Letters Patent of High Court Madras, if the causes of action have arisen within the jurisdiction of this Court, then this Court has got jurisdiction to try the matter. Caluse 12 of the Letters Patent reads thus: “12. Original jurisdiction as to suits - And We do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court: or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause at Madras, in which the debt or damage, or value of the property sued for does not exceed hundred rupees.”
5. In this context, it is also to be mentioned that the plaintiff filed A.No.810/2000 praying the Court to grant permission to institute the present suit and leave was granted on 16.4.2001 by this Court. The learned Senior Counsel for the petitioner Mr.B. Kumar appearing for the petitioner would contend that having regrd to the fact that the mortgaged property is situate outside the territorial jurisdiction of the Court, the suit is not maintainable before this Court. In support of his contention, he placed reliance upon a decision of this Court in 2000 (IV) CTC 479 [D. Hari Krishnan v. M.G.R. Memorial Charitable Trust] wherein this Court has held that if the suit involves claims regarding title to the property or to the possession of the property is “Suit for land”, such suit could not be filed before this Court provided the suit property lies beyond the territorial jurisdiction of this Court.
6. In 2001 (4) CTC 39 [Adcon Electronics Pvt. Ltd. v. Daulate and Anr] the Honourable Supreme Court has held as follows:
“13. In M/s.Moolji Jaitha and Co. Vs. The Khandesh Spinning and Weaving Mills Co. Ltd. [A.I.R. (37) 1950 Federal Court 83], there is divergence of opinion among the learned Judges of five-Judge Bench of the Federal Court in regard to the import of the expression suit for land. Chief Justice Kania opined, Taking the suit as a whole, one has to consider whether it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something different but involves the consideration of the question of title to land indirectly. Justice Fazl Ali observed, If I had really felt that I was called upon to decide it, I would have agreed with the line of cases in which it has been held that, broadly speaking, the expression suit for land covers the following three classes of suits : (1) suits for the determination of title to land; (2) suits for possession of land; and (3) other suits in which the reliefs claimed, if granted, would directly affect title to or possession of land.”
7. After referring to various decisions of the Supreme Court and this Court, the Apex Court has reached a conclusion that the suit is for specific performance of agreement for sale of the suit property wherein relief of delivery of suit property has not been specifically claimed as such it cannot be treated as “suit for land” and that in its true sense a suit simpliciter for specific performance of contract of sale of land is a suit for enforcement of terms of contract. The title to the land as such is not the subject matter of the suit.
8. The above said decision has been followed in a Division Bench of this Court in 2004 (4) CTC 653 [S.K.J. Dhanasekar v. S.V.S. Jawaharlal] and it is held as follows: “7. Clause 12 of the Letter Patent clearly refers at the first instance to “in the case of suits for land or other immovable property”. It thereafter refers to “or in all other cases”. The words “or in all other cases” refer to all cases and other than suits for land or ;other immovable property.
8. In this case the appellant had sought the relief of possession in the plaint filed by it. The suit was clearly one for land and the land not being situated within the jurisdiction of this Court, the suit was not maintainable in this Court. The decision of the learned single Judge declining to grant leave was fully justified.”
9. The learned Senior Counsel has also cited another Division Bench decision of this Court in 2006 (1) M.L.J. 357 [Thamiraparani Investments Pvt. Ltd., v. Meta Films Pvt. Ltd.,] wherein it is held as follows: “12. ........... It is well settled that the expression 'suit for land' should not be confined and limited to suits for recovery of possession of land or to obtain a declaration of title to land only. The present suit being one for control for land lying outside the jurisdiction of this Court, this Court has no jurisdiction to entertain the suit and consequently, the learned single judge has rightly revoked the leave.”
10. It is the backbone contention of the learned Senior Counsel that since the suit is one for “suit for land”, this suit is not maintainable in this Court, as per the settled decisions as above.
11. But the learned counsel for the respondent/plaintiff Mr.R.Thiagarajan repelled the contention placed on behalf of the applicant, urging that the present suit is not “suit for land”, that it is only a suit for recovery of mortgaged money and deciding the title of parties to the property is not involved. He placed reliance upon various decisions of the Honourable Supreme Court as well as this court which are as follows: 1.2008 (4) CTC 160 [A.C. Subba Reddy v. Jawahar International Trading Corporation Company]
3.2006 (4) MLJ 392 [ Andhra Bank Financial Services Ltd., v. Tamil Nadu Newsprint and Paper Ltd.,]
5.AIR 2004 (MAD) 161 [S.G. Badrinath v. V. Jagannathan and another]
7.1997(II) CTC 1 [Central Bank of India v. Joseph and 20 others]
9. AIR 1985 MADRAS 1 [Bank of Madurai Ltd. v. Balaramadass & Brothers and others]
11. 1992 (II) MLJ 376 [Tuticorin Alkali Chemicals and Fertilizers Ltd. v. M/s.Cochin Silicate & Glass Industries]
13. 1988 (1) L.W. 616 [Chhogala v. G.Ramalingam]
12. In the above said cases, in 1997 (II) CTC 1 [Central Bank of India v. Joseph and 20 others] another Division Bench decision in 1995 (II) CTC 602 [Sourthern Petrochemical Industries Corporation Ltd., v. Durga Iron Works & three others] has been referred, wherein it was held that mortgage suits cannot come under the term “suits for land or other immovable property.” as spoken to in Clause 12 of the Letters Patent.
13. In 2006 (4) MLJ 392 [ Andhra Bank Financial Services Ltd., v. Tamil Nadu Newsprint and Paper Ltd.,] it is held that in cases where the cause of action has arisen partly within the jurisdiction of Madras High Court, such a suit can be filed only after obtaining leave as contemplated under Clause 12 of Letters Patent.
14. In G. Ramalingam's case cited above, it is held by this Court that leave of the Court is not necessary as entire cause of action arose at Madras and not part of cause at Madras. In the plaint, in the cause title the residential address of the defendant is mentioned as Flat No.5, Ganesh Flats, 75, St. Mary's Road, Madras 600028. He is the resident of Chennai city, within the High Court's jurisdiction. It is also stated in the plaint that all the money transactions took place inside Madras city. The plaintiff is also resident of Mandaveli Street, Chennai 600028. Hence it is the contention of the plaintiff that the entire cause of action for the suit have arisen within the territorial jurisdiction of this Court and hence the suit is very well maintainable.
15. In view of the fact that the present suit is not one for “suit for land”, that the defendant is dwelling within the limits of High Court at the commencement of the suit, as required by Clause 12 of the Letters Patent and that the entire cause of action have arisen within the territorial jurisdiction of this Court and also in view of obtaining of leave from this Court, anterior to the filing of the suit, the suit is very well maintainable before this Court and the issue as far as the jurisdiction of this Court to try the suit is answered in favour of the plaintiff.
16. Insofar as the other issue i.e., whether the suit is bad for mis-joinder of several causes of action is concerned, it is the issue to be decided by the Court on appreciation of evidence which would be led on the basis of the allegations in the plaint and this is a pre-mature stage to decide the same. This issue will be decided at the time of final disposal along with other issues, since it is a question of fact and law. This point is answered accordingly.
17. In the result, the application is dismissed without costs.