PRIYANKA VIVEK BATRA Vs. NEERU MALIK

JUDGEMENT

(1.) The defendants No. 1 and 2 have filed this application under Order 7 Rule 11 CPC for rejection of the plaint as premature and not disclosing any cause of action and on the ground of claim therein being barred by the Benami Transactions (Prohibition) Act. Vide order dated 2nd May, 2007, the plaintiff was also called upon to satisfy on the territorial jurisdiction of this court to entertain the suit.

(2.) One Shri Ashok Malik was the father of the plaintiff and the defendant No.2 and the husband of the defendant No.1. Shri Ashok Malik died on 4th January, 2003. It is the case of the plaintiff that Shri Ashok Malik has left a Will dated 29th October, 2002 of which probate has been applied for by its executor before this court and is pending as Testamentary Case No. 3/2006. It is the case of the defendants No. 1 and 2 that the said Shri Ashok Malik left a Will dated 28th February, 1998 and they have applied for probate of the same in the courts at Chandigarh. The plaintiff has instituted the present suit

(3.) The counsel for defendants No. 1 and 2 has argued that all the immovable properties with respect to which declaration is claimed are situated outside the territorial jurisdiction of this court; u/S 16(d) of the CPC the suit for determination of any right or interest in immovable property can be filed only in the court within whose jurisdiction the property is situated. It is further urged that in the present case all the parties also are outside the jurisdiction of this Reliance was also placed on Harshad Chiman Lal Modi v court. DLF Universal Ltd [(2005) 7 SCC 791] to canvass that the bar of territorial jurisdiction is statutory bar within the meaning of Order 7 Rule 11(d) CPC