HATIMBHAI HASSANALLY Vs. FRAMROZ EDULJEE DINSHAW

JUDGEMENT

(1.) The first and principal question of the five questions submitted to this Full Bench is : "Whether a suit brought by a mortgagee of land to enforce his mortgage by sale is a suit for land within the meaning of Clause 12 of the Letters Patent." It will be noticed that the question has been deliberately confined to enforcing a mortgage by sale. That is the relief asked for in the present suit, and that is the relief ordinarily asked for on the Original Side. Indeed it was even said during the hearing that many Judges in this Court have refused to grant foreclosure at all. And personally I do not remember any case in which I was asked to pass a foreclosure decree, although I must have had hundreds of mortgage suits before me at various times during the last ten years.

(2.) Clause 12 of the Letters Patent runs as follows :- 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 immoveable 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 Cause Court at Bombay, in which the debt, or damage, or value of property sued for does not exceed one hundred rupees.

(3.) It will be seen that Clause 12 divides suits into at least two branches, viz., (a) suits for land within the jurisdiction, and (b) all other suits where the cause of action arises wholly or partially within the jurisdiction, provided in the latter case the leave of the Court is obtained, or the defendant dwells or works for gain within the jurisdiction. For the present I omit from consideration the possibility of construing Clause 12 as containing two other branches, viz., (c) where part of the land is within the jurisdiction and the leave of the Court is obtained, and (d) where all the land is outside the jurisdiction or the whole cause of action arises outside the jurisdiction, but yet the defendant dwells or works within the jurisdiction. Confining then Clause 12 to the first two branches (a) and (6), then if the present suit is one for land, it cannot be brought in this Court, as though the defendant dwells within the jurisdiction, the whole of the mortgaged land is situate without the jurisdiction. If, however, the present suit is not a suit for land, then it can be brought in this Court with leave, for undoubtedly a part of the cause of action arose within the jurisdiction inasmuch as the mortgage in question was effected by a deposit of deeds made within the jurisdiction.