HEM CHANDRA DEV Vs. DHIRENDRA CHANDRA DAS

JUDGEMENT

(1.) THIS Rule is directed against the decision on the preliminary issue as to jurisdiction. The suit was instituted in 1950 in the Court of the Subordinate Judge, First Court, Howrah. The plaintiff claims a decree for administration of the estate of Girish Chandra Das by the Court, for accounts and for Receiver during the pendency of the suit. The particulars of the estate were given in a schedule annexed to the plaint. Two items of property were mentioned. The second item was the fish business carried on at Dobson Road, Golabari, in the district of Howrah. The defendants contended that the court had no jurisdiction to try this suit. The trial court decided the issue in favour of the plaintiff. The matter came up on revision to this Court. By a judgment dated January 6, 1953 this Court decided that a part of the cause of action arose within the jurisdiction of the Howrah Court and as such that court had jurisdiction to try the suit. The Court, however, went on to observe:

(2.) SUBSEQUENTLY, the defendants filed an additional written statement contending that inasmuch as all the properties comprised in the estate were not included in the schedule to the plaint the suit was bad for having asked for partial administration. Having regard to this additional written statement, an additional issue on this point was raised.

(3.) THE trial commenced sometime in 1957. In course of the trial the plaintiff moved a petition for amendment of the plaint by including several items of property in the schedule to the plaint as having been comprised in the estate of the testator. One of the items of property is an immovable property situated at Mahabhairab Kalibari Chak in Tezpur in Assam. By an order dated July 12, 1957 the trial court allowed the amendment prayed for. The amended plaint mentions only one item of immovable property and that immovable property, as I have already stated, is situated in Tezpur, Assam. On December 10, 1957 the defendants raised again the preliminary point that the court had no jurisdiction to try this suit having regard to the allegations in the amended plaint. By its judgment dated December 11, 1957 the trial court overruled this objection. This Rule was obtained on January 14, 1958. On behalf of the petitioner it is contended that the suit is a suit for determination of a right to, or interest in, immovable property and as such is within the purview of sec. 16 (C) of the Code of Civil Procedure, that the proviso to Sec. 16 could have no application in the circumstances of the case and that sec. 20 being subject to sec. 16 the suit must be instituted in the court within the local limits of whose jurisdiction the immovable property is situated and cannot be instituted in the court where a part of the cause of action arose.