SIBANI DEBI Vs. LAKSHMI NARAYAN SHAW

JUDGEMENT

(1.) The plaintiff is the petitioner. He instituted the present suit for a declaration that the compromise decree passed in title appeal no. 361 of 1978 by the Fourth Additional District Judge's Court at Alipore was not binding on her, for a permanent injunction to restrain defendants nos. 1 to 3 from executing the decree and from interfering with her possession in the disputed property.

(2.) An objection was raised. The learned Munsif framed issue no. 5 whether the Court had territorial Jurisdiction to try the suit. Issue no. 6 was framed on the point whether the suit had been properly valued and the further question was whether the plaint was liable to be rejected under order 7 rule 11 of the Code of Civil Procedure, The learned Munsif upheld the defendants' objection and stated that none of the clauses to section 16 of the Code of Civil Procedure was attracted because section 20 was subject to that section 16 of the Code. No part of the cause of action arose within the jurisdiction of that Court. The court had no territorial jurisdiction to try the suit. The application filed by the defendants under order 7 rule 11 of the Code of Civil Procedure for rejection of the plaint was not allowed. The order was that the plaint, be returned to the filing lawyer for presentation to the proper court. The order gave rise to the present revisional application.

(3.) It has been contended on behalf of the plaintiff petitioner that it is true that section 20 of the Code of Civil Procedure is subject to the provisions of section 16 of the Code. The proviso to section 16 of the Code says that where the relief sought can be obtained through the defendants' personal obedience, the suit can 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. Reference has been made to the case of S. Jwala Vs. Lama Helen, in A.I.R. 1978 Cal. 247 at page 248 to show that the word "defendant " appearing in the proviso to section 16 of the Code means all the defendants where there are more than one defendant. The Court below, failed to consider the provisions of clause (b) of section 20 of the Code. That section contain: three clauses, all of which are disjunctive and not conjunctive. Clause (6) thereof clearly says that the suit may be instituted in a court within the local limits of whose jurisdiction any of the defendants, at the time of the filing of the suit actually and voluntarily resides or carries on business or personally works for gain. In the para S of the plaint there is an averment that defendants nos.1 and 2 reside within the jurisdiction of the court and that is sufficient to confer jurisdiction on the Court to try the suit. An erroneous order was passed.