# Sudhakar Verma v. Mahendra Kumar and Ors

- **Citation:** (2013) 2 ILRA 879
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-10
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sudhakar-verma-v-mahendra-kumar-and-ors-42637
- **Pages:** 4

## Headnote

C.P.C.-Section
115-
Civil
Revisionagainst order for return of plaint due to
880 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
want of jurisdiction of civil Court at
Lakhimpur
Khiri-suit
for
permanent
injunction on dissolution of partnership
firm to run Brick Kein at Pilibhit-in
partnership deed jurisdiction given to
civil court Lakhimpur-held- if plaint
allegation,
confined
upto
movable
property by virtue of amended plaintimpugned order shall go if related to
immovable property order impugned
shall be perfect.

Held: Para-14
Accordingly, it is directed that plaintiff
applicant within two months from today
shall
file
an
application
seeking
amendment in the plaint clarifying as to
whether relief claimed is in respect of
movable property alone or in respect of
immovable property also. If through
amendment in the plaint plaintiff clarifies
that the relief is only in respect of
movable property and accounting then
suit shall be treated to be maintainable at
Lakhimpur Khiri and shall be decided on
merit. However, if through amendment it
is clarified that relief is claimed in respect
of
immovable
property
also
then
impugned order shall stand and plaint
shall be returned (after allowing the
amendment) to be filed before the
competent court at Pilibhit. If within two
months, amendment application is not
filed, then impugned order shall stand.

Case Law discussed:
AIR 2004 SC 2432; AIR 2007 SC 2656; AIR
2007 SC 1636; AIR 2004 SC 2154

## Text

2 All] Sudhakar Verma Vs. Mahendra Kumar and Ors.
879
decision of the High Court passed in
exercise of its jurisdiction to punish for
contempt, that is, an order imposing
punishment for contempt.

II. , Neither an order declining to
initiate proceedings for contempt, nor an
order in initiating proceedings for contempt
nor an order dropping the proceedings for
contempt nor an order acquitting or
exonerating the contemnor, is appealable
under section 19 of the CC Act. In special
circumstances, they may be open to
challenge
under
Article
136
of
the
Constitution.

III. In a proceeding for contempt, the
High Court can decide whether any
contempt of court has been committed, and
if so, what should be the punishment and
matters incidental thereto. In such a
proceeding, it is not appropriate to
adjudicate or decide any issue relating to the
merits of the dispute between the parties.

IV. Any direction issued or decision
made by the High Court on the merits of a
dispute between the parties, will not be in
the exercise of "jurisdiction to punish for
contempt") and, therefore, not appealable
under section 19 of the CC Act. The only
exception is where such direction or
decision is incidental to, or inextricably
connected with the order punishing for
contempt, in which event the appeal under
section 19 of the Act, can also encompass
the incidental or inextricably connected
directions.

V. If the High Court, for whatsoever
reason, decides an issue or makes any
direction, relating to the merits of the
dispute between the parties, in the
contempt proceedings, the aggrieved
person is not without remedy. Such an
order is open to challenge in an intracourt appeal (if the order was of a Single
Judge and there is a provision for an intracourt appeal), or by seeing special leave
to appeal under Article 136 of the
Constitution of India (in other cases)."

14. As already observed by us, the
order impugned does not award any
punishment to the appellant and is
therefore clearly covered by condition I
aforementioned. Besides, the direction
issued in the order under appeal is not one
which would bring it within the ambit of
condition IV above.

15. In view of the preceding
discussions and also considering the fact
that no order of punishment has been
passed by the impugned order, we have
no reservations in holding that the instant
Contempt Appeal is not maintainable.

16. The contempt appeal is therefore
dismissed as not maintainable.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.07.2013

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Revision 77 of 2007

Sudhakar Verma

 ...Petitioner
Versus
Mahendra Kumar and Ors ...Respondents

Counsel for the Petitioner:
Sri Avdhesh Kumar, Sri Ankur Sinha

Counsel for the Respondents:
Sri Sushil Awasthi

C.P.C.-Section
115-
Civil
Revisionagainst order for return of plaint due to
880 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
want of jurisdiction of civil Court at
Lakhimpur
Khiri-suit
for
permanent
injunction on dissolution of partnership
firm to run Brick Kein at Pilibhit-in
partnership deed jurisdiction given to
civil court Lakhimpur-held- if plaint
allegation,
confined
upto
movable
property by virtue of amended plaintimpugned order shall go if related to
immovable property order impugned
shall be perfect.

Held: Para-14
Accordingly, it is directed that plaintiff
applicant within two months from today
shall
file
an
application
seeking
amendment in the plaint clarifying as to
whether relief claimed is in respect of
movable property alone or in respect of
immovable property also. If through
amendment in the plaint plaintiff clarifies
that the relief is only in respect of
movable property and accounting then
suit shall be treated to be maintainable at
Lakhimpur Khiri and shall be decided on
merit. However, if through amendment it
is clarified that relief is claimed in respect
of
immovable
property
also
then
impugned order shall stand and plaint
shall be returned (after allowing the
amendment) to be filed before the
competent court at Pilibhit. If within two
months, amendment application is not
filed, then impugned order shall stand.

Case Law discussed:
AIR 2004 SC 2432; AIR 2007 SC 2656; AIR
2007 SC 1636; AIR 2004 SC 2154

(Delivered by Hon'ble Sibghat Ullah Khan,J.)

1. At the time of arguments, no one
appeared on behalf of respondents even
though the case was taken up in the
revised list, hence only the arguments of
learned counsel for applicant were heard.

2. This is plaintiff's revision under
Section 115, C.P.C. directed against order
dated 07.03.2007 passed by Civil Judge
(S.D.), Lakhimpur Khiri in Regular Suit
No.266 of 2005, Sudhakar Ram Vs.
Mahendra Kumar and others. Through the
impugned
order,
preliminary
issue
relating to jurisdiction (whether civil
court at Lakhimpur or at Pilibhit has got
jurisdiction to try the suit) was decided
against the plaintiff holding that civil
court at Pilibhit had got jurisdiction.
Ultimately, through the impugned order
the plaint was directed to be returned for
filing before appropriate court.

3.

According
to
the
plaint
allegations, plaintiff started a business in
partnership with defendants of brick kiln
at Pilibhit. The relief claimed was for
permanent prohibitory injunction seeking
to restrain the defendants from dissipating
the property of firm M/s Krishna Brick
Field and for accounting. Partnership
agreement was executed on 01.10.2002 at
Lakhimpur Khiri and office of the firm
for the purposes of trade tax was got
registered at Lakhimpur Khiri. In para-3
of the plaint, it was stated that plaintiff
and defendants established the brick kiln
by the name of M/s Krishna Brick Field at
plot No.23, area 0.75 hectare situate at
Pota Kala, District Pilibhit.

4. In the partnership agreement, it
was mentioned that all the disputes would
be subject to the jurisdiction of court at
Lakhimpur Khiri. The court below in the
impugned order held that the relevant
clause in the partnership deed did not
contain the word only, hence suit could
not be filed at Lakhimpur Khiri as the
property was situate at Pilibhit. The
relevant clause is quoted below:

"That all the disputes are subject
to Lakhimpur Khiri jurisdiction."

5. Admittedly, the defendants reside
at Pilibhit.
2 All] Sudhakar Verma Vs. Mahendra Kumar and Ors.
881

6. The question of jurisdiction of
civil court is dealt with under Sections 15
to 20, C.P.C. Under Section 28, Contract
Act, it is provided that agreement in
restraint of legal proceedings is void. The
courts have interpreted Section 28,
Contract Act to mean that if for a suit
more than one civil court situate at more
than one place may have jurisdiction, then
parties
may
by
consent
oust
the
jurisdiction of one or more of such courts
and confine the jurisdiction to only one of
such courts. The Supreme Court in Hanil
Era Textiles Ltd. v. Puromatic Filters
(P) Ltd. AIR 2004 SC 2432 has held that
the clause in the agreement confining
jurisdiction to one of such several courts,
which may have jurisdiction to try the suit
is binding upon the parties even if it is not
qualified by words like ''alone, only or
exclusive'.

7. The relevant clause of the
partnership
agreement
confining
jurisdiction to the courts at Lakhimpur
Khiri is not relevant for deciding the
present controversy. Such types of clauses
can always be invoked by defendants.
There is absolutely no occasion for the
plaintiff to take advantage of such clause.
Through such clauses if cause of action
arises at several places then court at
particular place may be chosen to have
exclusive jurisdiction to try the suit.
However if cause of action arises at
different places then even otherwise
plaintiff has got full right to file the suit at
any of such places (Section 17, C.P.C.)

8. Accordingly, what is relevant to
be seen is as to whether irrespective of the
relevant clause in the partnership deed
(supra) civil court at Lakhimpur Khiri has
got jurisdiction to try the suit or not,
whether exclusively or along with the
Civil Court at Philibhit. Sections 16 to 20,
C.P.C. broadly divide the suits between
two parts. The first part consists of suit in
respect
of
immovable
property
or
movable property actually under distraint
or attachment and the other division is of
other suits. Sections 16 & 17, C.P.C. deal
with the suits in respect of immovable
properties or movable properties under
attachment. By virtue of Sections 16-17,
suits for recovery, partition, foreclosure,
sale or redemption in the case of a
mortgage or of charge upon immovable
property, or for the determination of any
other right or interest in the immovable
property, or for compensation for wrong
to immovable property and for recovery
of movable property actually under
attachment may be instituted only in the
court within local limits, of whose
jurisdiction
the
property
is
situate.
However, by virtue of Sections 19 & 20,
suit for compensation for wrong done to
the person or to movable property
(Section 19) or other suits (Section 20)
may be filed either at the place where
cause of action arises or where defendant
resides
or
carries
on
business
or
personally works for gain at the option of
the plaintiff.

9. Accordingly, if the suit is in
respect of immovable property or any
interest therein then no other court except
the court where property is situate will
have jurisdiction to try the suit otherwise
the suit may also be filed at the place
where defendant resides or works for
gain.

10. The relief claimed in the suit is in
respect of property of the firm. The property
may be movable as well as immovable.
Relief claimed is for accounting also. As the
office of the firm is at Lakhimpur Khiri
882 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
hence it can very well be said that defendant
works for gain there. Accordingly, suit for
accounting and in respect of movable
property of the firm is quite maintainable at
Lakhimpur Khiri.

11. However, the suit in respect of
immovable property of the firm is not at all
maintainable at Lakhimpur Khiri. At this
juncture, reference may be made to the
Supreme
Court
authority
reported
in
Sandeep Polymers Private Limited V/S
Bajaj Auto Limited, AIR 2007 SC 2656.
The said case related to damages for breach
of contract without claiming any right or
interest in immovable property. There also
registered office of defendant was situate at a
place different from the place where suit was
filed. Supreme Court held that the suit would
be maintainable only in respect of that relief
which was based upon a cause of action
arising at the place where the suit was filed.
In the end the plaintiff was permitted to
amend the plaint and to seek the relief with
respect to purchase orders at Pune (suit had
been filed at Nagpur) at Pune.

12. As far as proviso to Section 16,
C.P.C. is concerned, it is not applicable to
the facts of the case. Under the said
proviso a suit to obtain relief respecting
for wrong to immovable property can be
instituted where defendant resides or
works for gain where the relief sought can
be entirely obtained through his personal
obedience. In the instant case, there is no
possibility that relief can be obtained
through
personal
obedience
of
the
defendants'
respecting
immovable
property. In this regard, reference may be
made to AIR 2007 SC 1636.

13. Learned counsel for plaintiff
applicant has cited the Supreme Court
authority
reported
in
New
Moga
Transport Corporation Of India vs.
United India Insurance Co. Ltd., AIR
2004 SC 2154 holding that ''Where two
courts or more have under the C.P.C.
jurisdiction to try a suit or proceedings
agreement between the parties that the
dispute between them shall be tried in any
one of such courts is not contrary to
public policy and in no way contravenes
Section 28 of the Contract Act. (Para-14)"

14. Accordingly, it is directed that
plaintiff applicant within two months from
today shall file an application seeking
amendment in the plaint clarifying as to
whether relief claimed is in respect of
movable property alone or in respect of
immovable
property
also.
If
through
amendment in the plaint plaintiff clarifies
that the relief is only in respect of movable
property and accounting then suit shall be
treated to be maintainable at Lakhimpur
Khiri and shall be decided on merit.
However, if through amendment it is
clarified that relief is claimed in respect of
immovable property also then impugned
order shall stand and plaint shall be returned
(after allowing the amendment) to be filed
before the competent court at Pilibhit. If
within two months, amendment application
is not filed, then impugned order shall stand.

15. Revision is disposed of
accordingly.
---------
APPELLATE JURISDICTION
CRIMINAL- SIDE
DATED: ALLAHABAD 22.07.2013

BEFORE
THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE PANKAJ NAQVI, J.

Criminal Misc. Application Defective u/s
372 Cr.P.C. (Leave to appeal) No. 83 of
2013