CHADDER KISHORE GULHATI Vs. VIRINDER KISHORE GULHATI

JUDGEMENT

(1.) This appeal under Clause 12 of Letters Patent arises out of an order passed by a learned single Judge of this Court in an application relating to the grant of temporary injunction (CMP No. 86 / 94) arising out of Civil Original Suit No. 35 of 1994. Brief facts leading to the filing of this appeal are that the appellant herein Shri Chander Kishore Gulhati filed a civil original suit against the respondents for partition of the properties mentioned in the title of the suit which included the firm M/s. C. L. Gulhati and Sons owning the National Garage Building at B.C. Road, Jammu and land and structure at Gangyal, Jammu. The rest of the properties may be described as under:-(i) Flat No.12A at Vandana Building, New Delhi,(ii) Saraswati Real Estate -- 50% holding in Sandeep Building, Bombay by arrangement with G and N Construction, Bombay,(iii) Palam Motels-Land at Bijsasan with Project for Motel property,(iv) Samrat Builders and CVS Builders owning Stutee Apartment, Bank Street, Karol Bagh, New Delhi, and 4-D, Nizamuddin East.

(2.) Along with the filing of suit, the appellant also filed an application for the grant of ad-interim injunction, being CMP No. 86 / 94 for restraining the defendants in the suit from selling, alienating or transferring the ownership of the properties or changing their shape in any manner pending disposal of the suit. It was alleged in the application that the defendants were bent upon to sell, alienate, transfer or change the shape of the properties under dispute which were alleged to be joint Hindu family's properties and which were liable to be partitioned, as prayed for in the plaint, and in case the defendants were not restrained from doing so, the plaintiff would suffer irreparable loss and injury which could not be compensated by any means. Objections to this application appear to have been filed on behalf of defendants Nos. 21 and 22 only. Written statement on behalf of defendants Nos. 1 to 5 as also written submissions on behalf of defendants Nos. 21 and 22 were also filed in answer to the plaint on the prayer of the plaintiff. In the written statement filed on behalf of defendants Nos. 1 to 5, a preliminary objection was raised regarding the lack of jurisdiction in this Court to try the suit on the ground that the properties, the subject matter of the suit mainly were situated in Delhi and Bombay and in terms of Section 16 of the Code of Civil Procedure, this Court did not have the jurisdiction to try the suit, merely because one property was situated in Jammu and Kashmir State. On 24th March, 1993, when the civil suit was registered, an ex parte ad-interim injunction was granted in the application for temporary injunction (CMP No. 86 / 94) whereby it was directed by a single Bench of this Court that subject to objections and till further orders, status-quo shall be maintained, After the parties had filed their pleadings, as noticed above and after hearing them on the question of the grant of temporary injunction or otherwise, and in the light of specific objection taken by defendants regarding the lack of jurisdiction, the learned single Judge passed the order under appeal on 9 Sept., 1994 whereby he disposed of CMP No. 86,/94 by modifying the ex parte adinterim order dated March 24, 1994 to the extent that status-quo, till final disposal of the suit would be maintained only with respect to those properties which are situate within the territorial limits of Jammu and Kashmir State and so far as those properties which were outside Jammu and Kashmir State, status-quo order would stand vacated. The main thrust which formed the basis of passing of aforesaid order, father the only one, as will be noticed was that the suit for partition could be filed in Jammu and Kashmir High Court only if the entire property, the subject matter of the suit was situated within the State of JAMMU and KASHMIR and that this Court could not pass order of temporary injunction which related to property which is situated outside the limits of J. and K. State. The operative part of the order which deals with this question reads as under :-

(3.) The appellant has filed this appeal challenging the aforesaid order of the learned single Judge on the ground that the order suffers from error apparent on its face and that the learned single Judge did not properly interpret Section 17 of the Code of Civil Procedure and perhaps read Section 16 of the Code in isolation to hold that this Court did not have any jurisdiction to entertain and try suit in respect of the properties which were situated outside Jammu and Kashmir State. In support of his submission, Mr. HL Bhagotra, learned counsel appearing for the appellant referred a Full Bench judgment of this Court in the case of Murari Lal Saraf v. Firm Bhagwan Das Gurdyal reported in AIR 1955 J. and K. 5 and a Division Bench judgment of Delhi High Court in the case of Dewan Izzat Rai Nanda v. Dewan Iqbal Nath Nanda reported in AIR 1981 Delhi 262.