Bharat Petroleum Corporation Ltd. v. Umrao Finance and Leasing Pvt. Ltd. & Anr.

1. This petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugns the order of the trial court dated 16.5.2008 by which the trial court rejected the application filed by the defendant no.1/petitioner for return of the plaint under Order VII Rule 10 CPC to the competent court at District Bulandshahr, UP.

2. The facts as stated in the plaint show that disputes concern with the property admeasuring 1807.55 sq. mtrs. Municipal No.1, Plot no. 1570, 2014:DHC:4334 adjacent to G.T.Road, Murari Nagar, Khurja, District, Bulandshahr. The reliefs prayed in the suit are as under:- “P R A Y E R It is, therefore, most respectfully prayed that this Hon’ble court may graciously be pleased to; i) Pass a decree of declaration for declaring that the defendants have no right to use, occupy the land/property measuring 1807.55 sq. mtr. having Municipal No. 01 (Plot No. 1570) adjacent to G.T.Road, at Murari Nagar, Khurja, District Bullandbdshahr after 24.12.2007 as the lease for the above said land stands expired on 24.12.2007. ii) Pass a decree for permanent injunction restraining the defendant No.1 & 2 from entering, using and occupying the land/property measuring 1807.55 sq. mtr. having Municipal No. 01 (Plot No. 1570) adjacent to G.T.Road, at Murari Nagar, Khurja, District Bullanbdshahr and from running the retail outlet from the above said land/property measuring 1807.55 sq. mtr. having Municipal No. 01 (Plot No. 1570) adjacent to G.T.Road, at Murari Nagar, Khurja, District Bullanbdshahr or from creating any 3rd party interest or by allowing/running retail outlet under their name or under any banner from the and/property measuring 1807.55 sq. mtr. having Municipal No. 01 (Plot No.1 1570) adjacent to G.R.Road, at Murari Nagar, Khurja, District Bullanbdshahr or from creating any 3rd party interest or allowing/running retail outlet under their name or under any banner from the land/property measuring 1807.55 sq. mtr. having Municipal No. 01 (Plot No.1570) adjacent to G.T.Road., at Murari Nagar, Khurja District Bullandshahr.”

3. In the plaint, the respondent no.1/plaintiff claims that the suit property was purchased by the respondent no.1/plaintiff from defendant no.2/respondent no.2 by way of sale deed dated 28.8.2006 and that the petitioner/defendant no.1 does not have any rights in the suit property. Petitioner/defendant no.1 on the contrary states that it is a lessee of the suit plot since the year 1950 and in fact its position is protected by the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 as also the lease executed in its favour by the respondent no.2/defendant no.2.

4. A reading of the cause of action as stated in the plaint alongwith the relief clauses shows that rights which are claimed are with respect to the property which is situated in Khurja District, Bulandshahr, U.P. Effectively, the prayer-(ii) is to take possession of the suit property though by using clever language only a permanent injunction is sought. Prayer-(i) in the plaint is for declaration with respect to the rights in the immovable property.

5. Section 16 CPC reads as under:- “16. Suits to be instituted where subject-matter situate.-Subject to the pecuniary or other limitation prescribed by any law, suits.- (a) for the recovery of immovable property with or without rent or profits (b)for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d)for the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.”

6. As per sub-section (d) of Section 16 CPC once there is sought determination of rights in an immovable property, the suit has to be filed where the immovable property is situated. In the present case, immovable property is not situated within the territorial jurisdiction of the courts at Delhi but of the courts of District Bulandshahr in UP.

7. A reading of the impugned order shows that the aforesaid vital facts have not at all been touched upon by the trial court for deciding the application under Order VII Rule 10 & 11 CPC.

8. In view of the above, petition is allowed. The impugned order of the trial court dated 16.5.2008 is set aside. The suit plaint will be returned to the respondent no.1/plaintiff for a date to be fixed by the trial court, for being filed in the competent court at Khurja District, Bulandshahr, UP. Parties are left to bear their own costs.

SEPTEMBER 02, 2014 VALMIKI J. MEHTA, J. ib