ORDER
T.K. Chandrashekhara Das, J.
1. This Chamber Summons is taken out by defendant No. 1 wherein he requested to revoke the leave granted by this Court under Clause XII of the Letters Patent Act on 12-2-1997. In deciding this case, it is necessary to state certain facts relevant to this case. The plaintiff/respondent No. 1 filed a Suit No. 605 of 1997 before this Court after obtaining leave under Clause XII of the Letters Patent, the said suit is for specific performance of the contracts which was exhibited as “C” and “D” to the plaint. The said agreements sought to be specifically performed is for the sale of the immovable properties which is situated in Bhayandar, District Thane which is admittedly outside the jurisdiction of this Court. Along with the plaint, the plaintiff has moved an injunction application by way of Notice of Motion No. 1189 of 1997 to which reply has been filed by defendant No. 1 opposing that Notice of Motion. In para 2 of that affidavit in reply, defendant No. 1 has stated thus :
“At the outset, I say that this Hon’ble Court has no jurisdiction to try and entertain the suit. The plaintiff has his official address at Sheetal Park, Sheetal Nagar, Mira Road, District Thane. The suit property is situated within the District of Thane. The suit agreements are entered into within the District of Thane and except the defendant No. 1, all the other defendants reside at Thane and within the District of Thane. The suit for specific performance is thus not maintainable in this Hon’ble Court and the same is liable to be dismissed and be accordingly dismissed.”
2. He says that the suit is not maintainable in this Court as none of the ingredients required to be fulfilled under Clause XII of the Letters Patent are satisfied and the leave of this Court is obtained by suppressing material facts from this Court. The learned Counsel for the applicant, Mr. Sakhardande has contended that since the first defendant has raised the question of territorial jurisdiction at the first instance, it is incumbent upon this Court to decide that question first before proceeding further. The learned Counsel for the plaintiff Mr. Shukla has however, contended that the suit has been filed as early as 1997 and several orders have been passed by this Court and parties have taken benefits under those orders. In this circumstances, the first defendant, cannot at this stage raise this question of jurisdiction. According to me, this is not proper answer to the question raised by defendant No. 1 in his Chamber Summons. Whenever a jurisdictional question particularly of territorial raised that has to be decided first before proceeding the matter any further. This is a part of public policy and to achieve this objective, section 9-A of the Civil Procedure Code has been introduced. Section 9-A of the Code of Civil Procedure which is specifically brought into force in State of Maharashtra postulates that if in any suit jurisdictional question is arising no interim application can be considered before the jurisdiction question is decided. Section 9-A of the Code of Civil Procedure reads as under:
“(1) Notwithstanding anything contained in this Code or any other law for the time being in force, if at the hearing of any application for granting or setting aside an order granting any interim relief whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of suit.”
3. The legislative intention behind this section is quite obvious. If a party challenges jurisdiction of this Court and unless that question is decided, it will be wasteful of the time for the Court if it embarks upon to decide other issues raised in the case. If the litigations are to proceed with without deciding jurisdictional issue and after lapse of years, at the fag end of the litigation if that question is taken up and objection is upheld, the entire time and energy of the Court and litigants spent on such suit will become wasteful. Therefore, if the jurisdictional question is raised that has to be decided first. In the circumstances, the lapse of two years, and taking benefits of the orders by the parties, is quite immaterial and irrelevant as far as the deciding the question of jurisdiction which is called upon to decide by this Court is concerned.
4. Regarding jurisdiction, the learned Counsel for the applicant invited my attention to paragraph 34 of the plaint which reads as under :
“34. The said Agreement and the Supplementary Agreement were executed in Bombay. A material part of the cause of action has arisen in Bombay. As the aforesaid property is however situate outside Bombay, that part of the cause of action has arisen outside Bombay. Defendants Nos. 3 to 15 reside outside Bombay. The plaintiff therefore, prays for leave under Clause XII of Letters Patent and submits that with such leave being granted this Honorable Court has jurisdiction to entertain and try the suit.”
5. He also brought to my notice the agreement and supplementary agreement which were referred to in that paragraph. I carefully perused those agreements. The opening sentence of that agreement which reads thus :
“THIS AGREEMENT made at Bhayandar this 2nd day of July 94.”
6. The recital of the agreement and the pleadings stated in paragraph 34 is quite clear. According to learned Counsel for the applicant, leave under Clause XII has been obtained from this Court by playing a fraud on this Court by suppressing material facts. To this allegation the reply of the Counsel of the plaintiff is that there is a lacuna and he can at any time rectify that lacuna by amending the pleadings and also by adducing the evidence. The contention of the learned Counsel for the plaintiff, can not be countenanced to because the Court gets jurisdiction, particularly territorial, on the basis of the pleadings to which we are concerned here. If the pleadings are contrary to and inconsistent with the document which was produced by the plaintiff, plaintiff can not adduce oral evidence to disprove the documentary evidence. This is clear from the principle laid down by the section 92 of the Indian Evidence Act. The learned Counsel for the applicant is therefore, justified in alleging that the leave under Clause XII has been obtained by suppressing the material facts from this Court. The learned Counsel for the plaintiff in the above paragraph, relied upon their pleadings to clothe this Court with jurisdiction and state that the material part of cause of action arose within the jurisdiction of this Court, when at the same time the document which was produced in support of the pleadings shows otherwise. Therefore, I have no hesitation to support the view of the Counsel for the applicant that the leave was obtained by misleading the Court without drawing its attention to the documents produced along with the plaint.
7. The next submission of the learned Counsel for the plaintiff is that defect is a curable lacuna. I do not agree. Curarble lacuna is one which Court is competent to cure. The moment, this Court found that this Court has no jurisdiction, the curing of defect does not arise. Further, there is another fallacy in the contention of the learned Counsel for the plaintiff. He submits that plaintiff can rectify the defect at the time of the trial by adducing evidence. But a party can be permitted to lead evidence only according to the pleadings. In the absence of the pleadings, a party normally will not be allowed to adduce the evidence. To rectify this defect, the learned Counsel contended that he can amend the plaint to bring it within jurisdiction of this Court. It is to be noted that the Court cannot entertain such amendment conferring jurisdiction in the Court which it had not there at the commencement of the suit. First of all, such amendment will not be entertained. Secondly when the Court found that there is no jurisdiction, it can not entertain any amendment also. Therefore, in this context, contention of the learned Counsel for the plaintiff is devoid of any merits. The learned Counsel for the plaintiff also cited decision in Harjivan Bhimraj Jain v. Hakimchand Sardarmal Shah and another, reported in 1980 Mah.L.J. 192. Bank of Madurai Ltd. v. Balaramadass Brothers and others, and Kanthal India Ltd. v. Anant Prasad Bhatia and others, . These decisions do not have any application to the facts and law involved in this case.
8. The learned Counsel for the plaintiff has raised another point. He submits that Clause XII of Letters Patent deals with three situations, namely, the situation of land in question, cause of action arising in whole or in part and thirdly the residence of the defendant. If the defendant is residing within the jurisdiction of this Court, even if cause of action for the suit arises outside, this Court has jurisdiction to entertain the suit. Assuming that it is so, even then that contention will not come to the rescue of the plaintiff because there are altogether 15 defendants in this case. All are residing outside the jurisdiction of this Court except one. To deal with such situation, Clause XII is silent. Clause XII of the Letters Patent deals with four following situations in order to confer jurisdiction to this Court.
(i) In the case of suit for land or the immovable property such as land or property shall be situated.
(ii) In the case of cause of action arise wholly within the jurisdiction of this Court.
(iii) In the case of cause of action arises in part with the leave of the Court.
(iv) In the case of defendant resides within the jurisdiction.
9. On a careful reading of Clause XII and harmoniously construing the said Clause, the above four situations are mutually exclusive. In other words, if one situation is satisfied, other can be excluded. Suit is for land which is situated within the original jurisdiction of the High Court, it has jurisdiction even if cause of action does not arise in whole or in part in Bombay. Same is the case, if all the defendants reside outside the original jurisdiction of this Court, if cause of action arise wholly or in part arises in Bombay. In case the defendant reside within the jurisdiction of this Court, then even if cause of action arises outside, then this Court has jurisdiction. But where there are more than one defendant, any of the defendant resides outside the original jurisdiction of this Court, this Court has no jurisdiction, unless any one of the other three situations does not exist.
10. The Division Bench of Calcutta High Court in Rohima Bye and others v. Hadjee Mahomed Hadjee Josub, reported in 13 Bengal Law Reporter 91. It is held that if there are several defendants to the suit, it is not sufficient that one of the defendants should dwell or carry on the business within the jurisdiction. It is to be noted here specifically that leave of this Court applicable only where part of cause of action arises within the local limits of the jurisdiction of this Court. In all other three situations leave is not provided. In substance, if the land situated outside, and the some of the defendants also reside outside, the said deficiency cannot be made up with grant of leave by this Court. Likewise, where whole of the cause of action arises within the limits of the Court, leave is not required. In the light of the legal position, grant of leave by this Court, therefore, will not confer jurisdiction on this Court to entertain the suit on the facts disclosed herein. Section 20 of the Code of Civil Procedure envisages a situation where some of the defendants reside outside the jurisdiction of this Court, leave of the Court can be sought. But section 120 of the Code of Civil Procedure will not come to the rescue of the plaintiff because under section section 9-A of the Civil Procedure Code of Code of Civil Procedure, sections 16, 17 and 20 of the Code of Civil Procedure are excluded in its applications to the original jurisdiction of this Court.
11. Examining in all aspects of the case, I find that this Court has no jurisdiction to entertain the suit. Leave granted by this Court has to be revoked because no part of cause of action arises in this case. Nor all the defendants reside within the limits of this Court also.
12. I find from the pleadings that Civil Judge, Sr. Division, Thane is the proper Court to entertain this suit because as I indicated earlier, the property in question is situated within the jurisdiction of the said Court and the agreement was executed also within the jurisdiction of that Court. In view of this, I hold that the proper Court to entertain this suit is only Civil Judge, Senior Division, Thane. The leave granted by this Court is accordingly revoked. The plaint has to be returned to the plaintiff for representation before the proper Court. The parties are directed to appear before that Court on 1st February, 2000.
Request for stay of this order is declined. P.A. to issue ordinary copy of this order.
13. Plaint to be presented before proper Court.