Prem Kumar and anr. Vs. Dharam Pal Sehgal and ors. - Court Judgment

Excerpt:
the court ruled that when a suit was filed on a single cause of action in respect of a number of immoveable properties that are situated within the jurisdiction of the different courts, it could be instituted in any court within the local limits of whose jurisdiction any portion of the properties was situated. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - 3. the suit had been contested on a number of grounds ant the learned subordinate judge farmed three preliminary issues, namely :1. whether the suit is properly valued for purposes of court -fee and jurisdiction ? 2. whether the civil courts at delhi have no jurisdiction to try the present suit ? 3. whether the suit is bad for misguide of parties and causes of action ? if so its effects ?' 4. the learned subordinate judge, by the impugned order, answered issue no. if the plaintiffs have got a number of properties, they are fully entitled to take advantage of the provisions of section 17 of the code and the court at delhi is clearly seized of the jurisdiction over the subject-matter in dispute issue no. 1, and whether or not on the merits the plaintiffs will succeed in establishing their case, is not to be judged at this stage, but no infirmity can be found with the present frame of the suit and it cannot be said that it is bad for multifariousness.order1. this revision petition has been filed under section 115 of the code of civil procedure by the defendants against an order of the subordinate judge 1st class. delhi, dated 17th december 1970 by which he had decided three preliminary issues.2. the brief facts leading to the revision are that the plaintiffs, who are the sons of defendant no. 1 instituted a suit for a declaration (with consequential relief) that the properties in dispute constituted joint hindu family properties and for delivery of possession of the properties which had been alienated and for an injunction restraining the defendants from alienating the remaining properties. the properties in dispute are mostly situated in district hissar. state of haryana, but one property mentioned at seriall no. (v) is said to be a coparcenary house situated in kuanwali, delhi which is said to be in possession of premkumar, defendant no. 9, who is alleged to be one of the sons of defendant no. 1 by a lady defendant no. 8. about whose validity of marriage with defendant no. 1, the parties are at variance.3. the suit had been contested on a number of grounds ant the learned subordinate judge farmed three preliminary issues, namely :-1. 'whether the suit is properly valued for purposes of court - fee and jurisdiction ? 2. whether the civil courts at delhi have no jurisdiction to try the present suit ? 3. whether the suit is bad for misguide of parties and causes of action if so its effects ?' 4. the learned subordinate judge, by the impugned order, answered issue no. 1 against the plaintiffs and directed them to pay court-fees according to section 7(iv)(c) of the court fees act as amended in punjab and extended to delhi and no revision has been preferred against the said finding.5. issues nos. 2 and 3 were decided against the defendants and defendants nos. 9 and 10 have challenged them in this revision . i have heard the learned counsel for parties. the parties have not led any evidence on the said issue and the matter has to be decided in accordance with the pleadings and for purposes of determination of the issues, the allegations in the plaint have, thereforee to be treated as true. the plaintiffs have urged that all the properties in dispute have been purchased from joint hindu family funds and they constitute coparcenary properties and as such the plaintiffs are entitled to relief in their respect. section 17 of the code of civil procedure lays down 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.' there is no doubt that one of the properties in dispute in respect of which relief has been claimed, is situated in delhi. the defendants had before the trial court contended that the property in delhi did not exist, but the same has, on the material on record, been repelled by the learned subordinate judge and this findings has not been challenged before me. in view of the clear statutory provision, there is no doubt that the suit is maintainable within the jurisdiction of the court at delhi.6. the learned counsel for the petitioners strongly urged that other properties were situated in hissar and majority of the parties reside at hissar and so it is extremely inconvenient to come and defend the suit in delhi, but that is a matter of no consequence. the court has jurisdiction to entertain the suit and the plaintiffs seek to invoke it. the counsel also referred to section 16 of the code and urged that the suit in respect of the properties at hissar must have been instituted there and the suit in respect of the property in delhi can be instituted in the court below, but i am unable to accept the said submission. if the plaintiffs have got a number of properties, they are fully entitled to take advantage of the provisions of section 17 of the code and the court at delhi is clearly seized of the jurisdiction over the subject-matter in dispute issue no. 2 has, thereforee, been rightly answered by the courts below.7. in view of the aforesaid discussion the court was right in answering issue no. 3 in favor of the plaintiffs. the allegations made in the plain disclose that the plaintiffs are claiming one cause of action in respect of all the properties on the ground that they constitute joint hindu family properties of defendant no. 1 and the plaintiffs and other children of defendant no. 1, and whether or not on the merits the plaintiffs will succeed in establishing their case, is not to be judged at this stage, but no infirmity can be found with the present frame of the suit and it cannot be said that it is bad for multifariousness. i, thereforee, affirm the finding of the court below on issue no. 3. accordingly, the revision is dismissed and costs of the revision will abide by the result of the suit.8. revision dismissed.

Judgment:
ORDER

1. This revision petition has been filed under Section 115 of the Code of Civil Procedure by the defendants against an order of the Subordinate Judge 1st Class. Delhi, dated 17th December 1970 by which he had decided three preliminary issues.

2. The brief facts leading to the revision are that the plaintiffs, who are the sons of defendant No. 1 instituted a suit for a declaration (with consequential relief) that the properties in dispute constituted joint Hindu family properties and for delivery of possession of the properties which had been alienated and for an injunction restraining the defendants from alienating the remaining properties. The properties in dispute are mostly situated in District Hissar. State of Haryana, but one property mentioned at Seriall No. (V) is said to be a coparcenary house situated in Kuanwali, Delhi which is said to be in possession of Premkumar, defendant No. 9, who is alleged to be one of the sons of defendant No. 1 by a lady defendant No. 8. about whose validity of marriage with defendant No. 1, the parties are at variance.

3. The suit had been contested on a number of grounds ant the learned Subordinate Judge farmed three preliminary issues, namely :-

1. 'Whether the suit is properly valued for purposes of court - fee and jurisdiction ?

2. Whether the Civil Courts at Delhi have no jurisdiction to try the present suit ?

3. Whether the suit is bad for misguide of parties and causes of action If so its effects ?'

4. The learned Subordinate Judge, by the impugned order, answered issue No. 1 against the plaintiffs and directed them to pay court-fees according to Section 7(iv)(c) of the Court Fees Act as amended in Punjab and extended to Delhi and no revision has been preferred against the said finding.

5. Issues Nos. 2 and 3 were decided against the defendants and defendants Nos. 9 and 10 have challenged them in this revision . I have heard the learned counsel for parties. The parties have not led any evidence on the said issue and the matter has to be decided in accordance with the pleadings and for purposes of determination of the issues, the allegations in the plaint have, thereforee to be treated as true. The plaintiffs have urged that all the properties in dispute have been purchased from joint Hindu family funds and they constitute coparcenary properties and as such the plaintiffs are entitled to relief in their respect. Section 17 of the Code of Civil Procedure lays down 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.' There is no doubt that one of the properties in dispute in respect of which relief has been claimed, is situated in Delhi. The defendants had before the trial Court contended that the property in Delhi did not exist, but the same has, on the material on record, been repelled by the learned Subordinate Judge and this findings has not been challenged before me. In view of the clear statutory provision, there is no doubt that the suit is maintainable within the jurisdiction of the Court at Delhi.

6. The learned counsel for the petitioners strongly urged that other properties were situated in Hissar and majority of the parties reside at Hissar and so it is extremely inconvenient to come and defend the suit in Delhi, but that is a matter of no consequence. The Court has jurisdiction to entertain the suit and the plaintiffs seek to invoke it. The counsel also referred to Section 16 of the Code and urged that the suit in respect of the properties at Hissar must have been instituted there and the suit in respect of the property in Delhi can be instituted in the Court below, but I am unable to accept the said submission. If the plaintiffs have got a number of properties, they are fully entitled to take advantage of the provisions of Section 17 of the Code and the Court at Delhi is clearly seized of the jurisdiction over the subject-matter in dispute Issue No. 2 has, thereforee, been rightly answered by the Courts below.

7. In view of the aforesaid discussion the Court was right in answering issue No. 3 in favor of the plaintiffs. The allegations made in the plain disclose that the plaintiffs are claiming one cause of action in respect of all the properties on the ground that they constitute joint Hindu family properties of defendant No. 1 and the plaintiffs and other children of defendant No. 1, and whether or not on the merits the plaintiffs will succeed in establishing their case, is not to be judged at this stage, but no infirmity can be found with the present frame of the suit and it cannot be said that it is bad for multifariousness. I, thereforee, affirm the finding of the Court below on issue No. 3. Accordingly, the revision is dismissed and costs of the revision will abide by the result of the suit.

8. Revision dismissed.