PC:

1. The Chamber Summons is filed by Defendants Nos. 1 and 2 represented by Ms Kapil to revoke leave under Clause XII of the Letters Patent that I granted the Plaintiffs (represented today by Ms Jain) on 19th September 2018.

2. I have just today in another matter for almost identical reasons revoked leave holding that the decisions of the Supreme Court in Adcon Electronics Pvt Ltd v Daulat & Anr (2001) 7 SCC 698) and Excel Dealcomm Pvt Ltd v Asset Reconstruction Company (India) Ltd & Ors, (2015) 8 SCC 219) and of a learned Single Judge of this Court in DG Kotak & Anr v Rajeshkumar Alias Rajas R Doshi & Ors, (2012 (3) Mh LJ 275) make it clear that a suit for specific performance that includes a prayer for delivery of possession is a ‘suit for land’ within the meaning of Clause XII of the Letters Patent. If this be so, then the first part of Clause XII of the Letters patent (extracted below) will apply. Therefore, if the land in question is not situated within the jurisdiction of the Court, then there is no question of the Court exercising jurisdiction. Clause XII of the Letters Patent read thus:

'XII. Original jurisdiction as to suits. - And we do further ordain that the said High Court of Judicature at Bombay, in the 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 Causes Court at Bombay, or the Bombay City Civil Court.'

3. Ms Kapil’s submission that regard should be had to the provisions of Sections 16 to 20 of the Code of Civil Procedure 1908 do not commend themselves for the simple reason that the jurisdiction of this Court on its Original Side, this being a Chartered High Court, is governed by Clause XII of the Letters Patent and not by the provisions of the Code of Civil Procedure 1908. In any case, so far as she is concerned, this makes no difference. The decisions referred to above are unambiguous, and all are binding.

4. Ms Jain raises another plea on the interpretation of Clause XII. In my understanding of it, her submission runs like this. According to her, Clause XII has three parts and if she is able to satisfy the Court that the suit falls within parts 2 or 3 then she is entitled to leave and the Court will proceed to exercise jurisdiction. Specifically, she lays emphasis on the disjunctive ‘or’ between the first part of Clause XII and the other two parts that follows. The second part, she says, relates to the situs of the cause of action, and the third part relates to the situs of place of residence or business of one or more of the Defendants. As I understand it the submission is that if a suit and is covered by any of these three ‘possibilities’ then the Court can grant leave under Clause XII.

5. Clause XII of the Letters Patent of this Court is in pari materia with the corresponding clause of the Letters Patent of the High Court of Calcutta. In Excel Dealcomm the Supreme Court analysed the Clause in its entirety.

'11. A plain reading of the provision suggests that ordinary original civil jurisdiction of the High Court of Calcutta will extend in the following cases:

(a) In a suit for land or other immovable property –

(i) where such land or property is wholly situated in the territorial jurisdiction of the High Court of Calcutta;

(ii) where such land or property is situated in part only within the said territorial jurisdiction of the court, if the leave of the court shall have been first obtained.

(b) In suits other than suit for land -

(i) if the cause of action has arisen wholly within the said limits;

(ii) where the cause of action has arisen in part only within the said limits, if the leave of the court shall have been first obtained;

(iii) If the Defendant at the time of the commencement of the suit dwells or carries on business or personally works for gain within such limits.

13. A suit for land is a suit in which the relief claimed relates to the title or delivery of possession of land or immovable property [see Adcon Electronics (P) Ltd. V Daulat]. Further, it is an established rule that to determine whether it is a suit for land, the court will look into barely the plaint and no other evidence (Indian Mineral & Chemicals Co. v Deutsche Bank, (2004) 12 SCC 376). If by the averments in the plaint and prayers therein, it appears that the suit is one for land, it shall be so held and if it does not so appear, then the suit shall continue under leave granted under Clause 12. In the present case, the prayer in the plaint was couched in the following words: ... ...

6. Then the Excel Dealcomm Court followed the previous decision in Adcon Electronics also referred to above (I must note that the observation in Excel Dealcomm 11(a)(i), of the possibility of leave being granted if the land is partly within the jurisdiction of this court does not seem to accord with the earlier decision of the Supreme Court in Adcon Electronics, and particularly paragraph 9 of that decision:

9. Thus, it is clear that under clause 12 of the Letters Patent, the High Court in exercise of its ordinary original jurisdiction will have power to receive, try and determine: (1) suits for land or other immovable property if such property is situated within the local limits of original jurisdiction of the High Court; or (2) all other cases (a) if the cause of action has arisen wholly within the local limits of the ordinary original jurisdiction of the High Court; (b) if prior leave of the Court has been obtained and the cause of action has arisen in part within the local limits of the ordinary original jurisdiction of the High Court; or (c) if the defendant dwells or carries on business or personally works for gain within such limits. This would indicate that in Adcon Electronics, the Supreme Court took the view that leave was possible only in the 2(b) eventuality and not otherwise. This of course raises the question of what is to happen if, say, the immovable property straddles two jurisdictions. I only note this, possibly a question in some other matter. It will not arise in this case, because here no part of the land is even partly within the jurisdiction of this Court.).No part of the land in question here is within the jurisdiction of this court. It is entirely in Pune.

7. Ms Jain invites reference to the Full Bench decision of five Judges of the Federal Court in Moolji Jetha & Co v Khandesh Spinning & Weaving Mills Co Ltd (AIR 1950 FC 83 : 1949 FCR 849).This decision was extensively analysed by the Supreme Court Adcon Electronics. The relevant portions were set out in paragraph 13 and this is what the Supreme Court said:

'13. In Moolji Jaitha and Co. v Khandesh Spg. And Wvg. Mills Co. Ltd, there is a divergence of opinion among the learned Judges of the five-Judge Bench of the Federal Court in regard to the import of the expression 'suit for land'. The Chief Justice Kania opined: (AIR p. 89, para 15)

'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: (AIR p. 96, para 47)

'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.'

Justice Patanjali Sastri took the view: (AIR p. 97, para 53)

'The words in question, besides obviously covering claims for recovery of possession or control of land, are apt to connote also suits which primarily and substantially seek an adjudication upon the title to immovable property or a determination of any right or interest therein.'

Justice Mahajan observed: (AIR p. 105, para 81)

'If an attempt is made to find a comprehensive definition of the phrase, it will eventually be discovered that it has created further complications. I therefore content myself by saying that where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of land or immovable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression.:

He added: (AIR p. 110, para 102)

'In my opinion, if the suit is for specific performance and a decree for possession of the land sold is claimed, such a suit would certainly be a suit for land; but if the suit is simpliciter for specific performance, i.e., for the enforcement of the contract of sale and for execution of a conveyance, in that event there can be no good ground for holding that such a suit is a suit for determination of title to land or that the decree in it would operate on the land.'

(emphasis supplied)

In that view he expressed his argument with the decision of the Full Bench of the Madreas High Court in P.M.A. Velliappa Chettiar v Saha Govinda Doss (AIR 1929 Mad 721 : ILR 52 Mad 809 (FB). Justice Mukherjea perceived : (AIR p. 119, para 142)

'It seems to me fairly clear that the expression ’suit for land’ occurring in clause 12 Letters Patent, means a suit which is instituted with the object of establishing claims regarding title to the property or possession of it. Whether or not possession is claimed, if title to any immovable property is to be directly affected by the result of the decision, the suit would be a suit for land.'

8. It is to be noted that in paragraph 15 of the Adcon Electronics, the Supreme Court considered an almost identical case of a suit for specific performance coupled with a prayer for delivery of possession and, in that context and with reference to Moolji Jaitha & Co said:

'15. From the above discussion it follows that a 'suit for land' is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a 'suit for land' or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a 'suit for land'. We are in respectful agreement with the view expressed by Mahajan, J. in Moolji Jaitha case.'

(Emphasis added)9. This seems to me to militate against an acceptance of Ms Jain’s submission and the reason is quite clear. Once a suit has been found to be ‘a suit for land’ then no question arises of proceeding to what Ms Jain describes as the second or third parts of Clause XII. In fact, I would be inclined to say that Clause XII is actually only in two parts; and the second part is further divided into two; and the first of these sub-divisions into another two. The two broad divisions of Clause XII are:

(a) suits for land; and

(b) suits other than suits for land. It is only in case of suits other than suits for land that a Court will consider the tw

o subsidiary questions of (i) where the cause of action arises (A) wholly or (B) in part (in which case leave is necessary); or (ii) situs of the Defendants’ residence or business. 10. None of the considerations in (b) have any relevance or application at all to the category (a) cases, i.e. suits for land. The moment, therefore, it is found that the suit, being for specific performance coupled with the prayer for possession is nothing but a suit for land wholly outside the territorial jurisdiction of this Court, then leave under Clause XII cannot be granted. It must be shown that the land or immovable property of which possession is sought is within the jurisdiction of this Court (Or, following Excel Dealcomm, at least partly within the jurisdiction of this Court). 11. As I noted, in the present case is that the property is entirely situated in Pune. In this view of the matter, the Chamber Summons will have to be made absolute in terms of prayer clauses (a) and (b). 12. The Chamber Summons is made absolute accordingly. No costs. The leave granted on 17th September 2018 is revoked. 13. The plaint will thus have to be returned but not under Order 7 Rule 10 of the Code of Civil Procedure 1908, this being a Chartered High Court, but under Rule 283 of the Bombay High Court Original Side Rules.