IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 66 of 2009()
1. RADHAKRISHNAN, S/O. LATE DAMODHARAN,
... Petitioner
Vs
1. PRIYA S,
... Respondent
2. DR. D. RETNAKUAR, S
3. BHARAT PETROLEUM CORPORATION
4. TERRITORYMANAGER (RETAIL),
5. SALES OFFICER,
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.V.AJAKUMAR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :22/09/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - -
C.R.P.No.66 of 2009
- - - - - - - - - - - - - - - - - - - - - - - - -
Dated: 22nd September, 2009
ORDER
The revision is directed against the order dated 20.12.2008 in
O.S.No.120 of 2002 passed by the Principal Munsiff, Trivandrum over
issue No.4 raised in the suit as to whether the court is having
jurisdiction to try the suit. The learned Munsiff has held, after hearing
both sides, that the court has jurisdiction to try the suit, negativing
the contentions raised by the defendants that in view of the
agreement between the parties the suit can be filed only before the
courts at Kochi and not in Trivandrum. Propriety and correctness of
the finding entered on jurisdiction by the learned Munsiff is
challenged in the revision by the first defendant in the suit.
2. I heard the counsel on both sides. Learned counsel for the
petitioner/1st defendant contended that as per clause 19 of the
agreement entered by the parties only the court at Kochi has got
jurisdiction to entertain the suit, and so much so, the order passed by
the court below on issue No.4 settled in the suit is not correct and
liable to be set aside. On the other hand, learned counsel for the first
respondent/plaintiff in the suit contended that there is no merit in the
challenges raised against the finding entered by the court below on
CRP No.66/09 – 2 –
issue No.4 that the court at Trivandrum has jurisdiction to try the
suit.
3. Annexure A2 is the copy of the plaint in the suit. Suit has
been filed for a declaration that the first respondent/plaintiff is
entitled to conduct the business, a retail petrol outlet, the dealership
of which was previously carried under the name of
M/s.Radhakrishnan and Brothers. A decree of perpetual prohibitory
injunction was also sought in the suit against defendants 3 to 5 from
taking over the business of the petroleum dealership business carried
in the plaint schedule premises and as against the defendants 1 and 2
from causing any disturbance of the above business being run by the
plaintiff in the name and style of M/s.Radhakrishnan and Brothers.
The petroleum outlet in respect of which declaration of right to
conduct that outlet was sought for by the plaintiff with prohibitory
injunction against the defendants from interfering her right to
conduct such business, was described as the plaint schedule
property. Though it was urged before me by the learned counsel for
the first respondent/plaintiff the suit has been filed with regard to the
right of the plaintiff over the conducting of the petroleum outlet
seeking injunction against the defendants from interfering with her
CRP No.66/09 – 3 –
enjoyment thereof and so much so, the proviso to Section 16 of the
Code of Civil Procedure is applicable to such a suit in determining the
jurisdiction, I am not impressed by such submissions. Similarly, the
challenge to jurisdiction of the court at Trivandrum canvassed by the
defendants under clause 19 of the agreement, a copy of which is
produced as Annexure A1, also does not appear to have much merit
in determining the question whether the court in which the suit has
been instituted has territorial jurisdiction to entertain such suit.
Though the reliefs have been couched in a manner as if the dispute
related to the right or entitlement to run a petrol outlet and also for
prohibitory injunction against the defendants interfering with such
right of the plaintiff, it has to be examined with reference to the
allegations raised in the plaint whether any interest in the plaint
schedule immovable property having an extent of 22 cents
comprising the petrol outlet is emerging for consideration and
adjudication by the court. In this context, it is appropriate to take
note of the allegations in paragraph 15 of the plaint which read thus:
“The plaintiff got reliable information on 7.1.2002
that the 1st and 2nd defendants are making preparations to
cause disturbances to the peaceful conduct of the BPCL
CRP No.66/09 – 4 –
Petrol pump business being operated by the plaintiff at
Kilimanoor in the plaint schedule premises. The
defendants 1 and 2 may be restrained by a decree of
perpetual injunction from doing the same.”
I am not adverting to the merit of the case canvassed by the plaintiff
to sustain the suit claim and the reliefs sought thereunder nor the
contentions of the defendants resisting such claim. Before the court
proceed to examine any of the disputed questions involved in the
case, the court has satisfy that it has jurisdiction to entertain the suit.
In this context, it has to be taken note that the plaintiff among the
reliefs sought, has also canvassed for a decree of perpetual
prohibitory injunction against the defendants from disturbing and
interfering with the conducting of the petrol outlet in the plaint
schedule property.
4. The trial court has to examine whether the decree of
injunction sought for is in respect of an immovable property and if
so, the applicability of Section 16(d) of the Code of Civil Procedure in
determining the territorial jurisdiction as to where the suit has to be
instituted. If any interest over the immovable property is involved in
a suit where a relief of injunction is claimed, needless to point out,
CRP No.66/09 – 5 –
such a suit has to be instituted within the territorial jurisdiction of the
court where it is situate. A Division Bench of this court in Vas
Pharmaceuticals (India) Ltd. v. State of Kerala (ILR 2006(4)
Kerala 483) gives an insight as to the ambit of the right or interest in
the immovable property mentioned in clause (d) of Section 16 of the
Code of Civil Procedure. The learned counsel for the first
respondent/plaintiff contended that the proviso to Section 16 of the
C.P.C. is applicable and so much so, since the defendants are
permanently settled at Trivandrum by virtue of Section 20 of the
C.P.C. the suit is entertainable in the court at Trivandrum. Even
assuming that the proviso enables the entertainability of the suit to
obtain relief respecting, or compensation for wrong to, immovable
property by instituting such suit at the place where the defendant is
residing, as covered under Section 20 of the C.P.C., it has to be
pointed out that two essential conditions are to be satisfied for the
applicability of the proviso. The proviso is applicable only if two
conditions exist, namely, (1) that the property is held by the
defendant himself or by someone on his behalf and (2) that the relief
sought can be entirely obtained through his personal obedience. Here
in the present case, the immovable property involved in the plaint
CRP No.66/09 – 6 –
schedule with the right to conduct the petroleum outlet situate
therein is claimed by the plaintiff as of right and not held by or on
behalf of the defendants. That itself is sufficient to hold that the
interpretation of the proviso in the manner suggested by the counsel
is inapplicable to render jurisdiction to the court where the suit has
been instituted.
5. Setting aside the order impugned in the revision, I direct the
court below to examine the matter afresh as to whether it is having
territorial jurisdiction to entertain the suit and pass appropriate
orders taking note of the observations made above and in accordance
with law, within a period of one month from the date of receipt of a
copy of this order.
Revision is disposed as above.
srd S.S. SATHEESACHANDRAN, JUDGE