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MADHURI DEVI versus KAMALAKAR DUBEY & OTHERS

High Court of Judicature at Allahabad

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Madhuri Devi v. Kamalakar Dubey & Others - WRIT - C No. 57616 of 2005 [2005] RD-AH 7865 (20 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

"Reserved"

Civil Misc. Writ Petition No. 57616 of 2005.

Madhuri Devi                                                                                      ..........Petitioner.

Versus

Kamlakar Dubey and others                                                             .....Respondents.

...........

Hon'ble Anjani Kumar, J.

The petitioner-defendant in a suit for injunction, aggrieved by the order passed by the trial Court dated 27th July, 2002, whereby the trial Court has decided issue no. 7 against the petitioner-defendant and in favour of the plaintiffs, approached the revisional Court by means of revision under Section 115 of the Code of Civil Procedure.  The revisional Court vide order dated 16th July, 2005 dismissed the revision filed by the petitioner-defendant and affirmed the order passed by the trial Court, thus this writ petition before this Court under Article 226 of the Constitution of India.

Heard learned counsel appearing on behalf of the petitioner.

The issue no. 7 relates to the jurisdiction of the Court and according to the trial Court, the burden to prove is on the petitioner-defendant, who has raised the objection.  The issue no. 7 relates to the jurisdiction of the Court on the ground that as per Section 16 of the Code of Civil Procedure, since the property in dispute is admittedly situated is more than one district, namely district of Banaras (now Varanasi) and the district of Mirzapur, therefore the suit should have been filed at district Varanasi and not at Mirzapur.  Learned counsel appearing on behalf of the petitioner-defendant relied upon provision of Section 16 of the Code of Civil Procedure, which runs as under :-

"16. Suits to be instituted where subject-matter situate.---Subject to the pecuniary or other limitations prescribed by any law, suits----

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate :

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or 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."

Both the trial Court as well as the revisional Court have relied upon the provisions of Section 17 of the Code of Civil Procedure, which is reproduced below :-

"17. Suits for immovable property situate within jurisdiction of different Courts.----Where a suit is to obtain relief respecting, or compensation for wrong to, 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 :

Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court."

Having heard learned counsel for the parties and going through the record, both the Courts below relying upon the provision of Section 17 of the Code of Civil Procedure have held that in view of the provisions of Section 17 of the Code of Civil Procedure, the suit can be filed at either of the places, namely, at district Varanasi or district Mirzapur, because admittedly the property in dispute is situated in Varanasi as well as in Mirzapur districts, therefore filing of the suit at Mirzapur cannot be said to be in any way illegal or this can also not be said that the Court at Mirzapur has no jurisdiction to take cognizance of the suit in question.  Thus the trial Court rejected the application and decided issue no. 7 against the petitioner-defendant.  The view taken by the trial Court has been affirmed by the revisional Court.  The revisional Court for the purposes has relied upon the decisions of the Apex Court reported in A.I.R. 1985 SC, 577; A.I.R. 1972 Delhi, 90;  A.I.R. 1975 Alld., etc.  Learned counsel for the petitioner-defendant could not demonstrate that the view taken by the revisional Court, whereby the revisional Court affirmed the view taken by the trial Court with regard to jurisdiction of the Court in any way suffers from the error, much less error of law, so as to warrant any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.

In view of what has been stated above, this writ petition has no force and is accordingly dismissed.  However, there will be no order as to costs.

Dated:

Rks.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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