Case Note & Summary
The plaintiff, Shyam Balkishan Chandak, filed a suit for partition and separate possession of immovable properties against his mother and siblings. The suit properties included flats in Mumbai and agricultural land in Rajasthan. The defendant No.3, Ramprakash Chandak, filed a notice of motion seeking dismissal of the suit on the ground that the plaintiff had not obtained leave under Clause XII of the Letters Patent before filing the suit. The defendant argued that since some of the suit properties were situated outside the original civil jurisdiction of the Bombay High Court, leave was mandatory. The plaintiff contended that leave was not required as part of the cause of action arose within the jurisdiction and the suit was for partition of immovable property. The court, after hearing arguments, held that a suit for partition is a suit for land and the court having jurisdiction over any part of the property can entertain the suit without leave under Clause XII. The court also noted that the issue of jurisdiction was a mixed question of fact and law and could not be decided at the stage of rejection of plaint. Accordingly, the notice of motion was dismissed with costs.
Headnote
A) Civil Procedure - Jurisdiction - Clause XII of Letters Patent - Partition Suit - Leave of Court - The court considered whether leave under Clause XII of the Letters Patent is required when a suit for partition of immovable property is filed in respect of properties situated partly within and partly outside the jurisdiction of the High Court. The court held that since part of the cause of action arose within the jurisdiction and the suit was for partition, which is a suit for land, leave under Clause XII was not required. The court relied on the principle that a suit for partition is a suit for land and the court having jurisdiction over any part of the property can entertain the suit. (Paras 1-10) B) Civil Procedure - Rejection of Plaint - Order 7 Rule 11 CPC - The court examined whether the plaint was liable to be rejected for want of leave under Clause XII. The court held that the plaint disclosed a cause of action and the issue of jurisdiction was a mixed question of fact and law, which could not be decided at the stage of rejection of plaint. The court dismissed the notice of motion. (Paras 11-15)
Issue of Consideration
Whether the suit filed by the plaintiff for partition and separate possession of immovable properties situated partly within and partly outside the original civil jurisdiction of this Court is maintainable without obtaining leave under Clause XII of the Letters Patent.
Final Decision
The notice of motion is dismissed with costs.
Law Points
- Clause XII of Letters Patent
- cause of action
- jurisdiction
- partition suit
- immovable property
- leave of court
