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CASE NO.:

Appeal (civil) 2726 of 2000

PETITIONER:

Harshad Chiman Lal Modi

RESPONDENT:

DLF Universal & Anr.

DATE OF JUDGMENT: 26/09/2005

BENCH:

Arijit Pasayat & C.K. Thakker

JUDGMENT:

J U D G M E N T

C.K. Thakker, J.

This appeal is filed by the appellant against the order passed by

the Additional District Judge, Delhi on May 25, 1998 in Suit No. 1036 of

1994 and confirmed by the High Court of Delhi on November 01, 1999

in Civil Revision Petition No. 506 of 1998 holding that Delhi Court has

no jurisdiction to try the suit and the plaint should be returned to the

plaintiff for presentation to proper court.

To appreciate the controversy raised in this appeal, admitted

and/or undisputed facts may be noted. The appellant-original plaintiff

entered into a 'plot buyer agreement' ('agreement' for short) with DLF

Universal Limited, respondent No.1 \026 original defendant No. 1 \026 on

August 14, 1985 for purchase of a residential plot admeasuring 264 sq.

mtrs. in Residential Colony, DLF Qutub Enclave Complex, Gurgaon,

Haryana. The agreement was in the Standard Form Contract of the first

respondent. According to the appellant, the agreement was made in

Delhi. The Head Office of respondent No.1 was situated in Delhi.

Payment was to be made in Delhi. The plaintiff paid an amount of

Rs.12,974/- (Rupees twelve thousand nine hundred seventy four only)

towards the first instalment. It is the case of the appellant that payment

was made by him in instalments as per the schedule to the agreement. In

spite of the payment of amount, the first respondent unilaterally and

illegally cancelled the agreement on April 04, 1988 under the excuse that

the appellant had not paid dues towards construction of Modular House

to respondent No. 2- original defendant No. 2 - DLF Builders &

Developers Pvt. Ltd. The appellant objected to the illegal action of the

first respondent and sent a legal notice through an advocate calling upon

the first respondent to carry out his part of the contract but respondent

No.1 replied that the agreement had been cancelled and nothing could be

done in the matter. The appellant, in the circumstances, was constrained

to file Suit No. 3095 of 1988 on the Original Side of the High Court of

Delhi for declaration, specific performance of the agreement, for

possession of the property and for permanent injunction.

In the prayer clause, the plaintiff stated;

"Therefore, it is most respectfully prayed that in the facts

and circumstances stated above, this Hon'ble Court may

graciously be pleased to:--

a) pass a decree of declaration to the effect that there is a valid

and existing contract with regard to plot No. L-31/4, DLF Qutab

Enclave Complex, Gurgaon, Haryana, between the plaintiff and

the Defendant No. 1;

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b) pass a decree to the effect that the Defendant No. 1 is bound

to abide by the contract, i.e. plot buyer agreement dated 14.8.85

and the unilateral rescinding/canceling/withdrawing of the

contract by the Defendant No. 1 is bad and illegal;

c) pass a decree of specific performance directing the

Defendant No. 1 to perform its part of the contract by

withdrawing the letter dated 4.4.88 and further accepting the

payments of the due instalments with regard to the plot from the

plaintiff in accordance with the terms and conditions of the

agreement, and execute a sale deed in favour of the plaintiff after

the full money is paid to the Defendant No. 1 as per clause (22) of

the agreement;

d) pass a decree of permanent injunction restraining the

Defendants from allotting, selling, transferring, alienating in any

manner whatsoever the said plot No. L-31/4 DLF Qutub Enclave

Complex, Gurgaon (Haryana) to any person other than the

plaintiff and further restrain them from interfering in any manner

whatsoever with the possession or rights of the plaintiff after the

said plot has been handed over to the plaintiff;

e) pass a decree of delivery of possession against the

Defendant No. 1 directing him to hand over vacant and peaceful

possession of the plot No. L-31/4 DLF Qutub Enclave Complex,

Gurgaon (Haryana) to the plaintiff, or in the event, the said plot is

already allotted and handed over to some other person by the

Defendant No. 1, another plot in the same Complex of equivalent

area in identical location be handed over to the plaintiff by the

Defendant No. 1.

On December 09, 1988, a single Judge of the High Court of Delhi

granted interim injunction in favour of the plaintiff. A common written

statement was filed by both the defendants on March 29, 1989

controverting the claim of the plaintiff on merits. So far as jurisdiction

of the court was concerned, it was clearly admitted and in paragraphs 18

and 19 it was stated that "jurisdiction of this Hon'ble Court is admitted".

In view of increase in pecuniary jurisdiction of the District Court, Delhi,

the suit came to be transferred from High Court of Delhi to District

Court, Delhi on July 12, 1993 and it was re-numbered as Suit No. 1036

of 1994. On February 17, 1997, the trial court framed issues which did

not include issue as to the jurisdiction of the court obviously because

jurisdiction of the court was not disputed by the defendants. As late as

on August 22, 1997, i.e. after more than eight years of the filing of the

written statement, the defendants filed an application under Order 6,

Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as

the "Code") seeking amendment in the written statement by raising an

objection as to jurisdiction of Delhi Court to entertain the suit. It was

stated that the suit was for recovery of immovable property situated in

Gurgaon District. Under Section 16 of the Code, such suit for recovery

of property could only be instituted within the local limits of whose

jurisdiction the property was situated. Since the property was in

Gurgaon, Delhi Court had no jurisdiction in the matter. On January 16,

1998, the application was allowed and the written statement was

permitted to be amended. The amended written statement was filed

which also contained a statement that the jurisdiction of the court was

"admitted". On the basis of the amendment of written statement,

however, the learned Additional District Judge framed an additional

issue as under :

"Whether Delhi Civil court has jurisdiction to try and

entertain the present suit: OPD"?

After hearing the parties, the trial court by an order dated May 25,

1998 upheld the contention of the defendants and ruled that Delhi Court

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had no jurisdiction to try the suit. The plaint was, therefore, ordered to

be returned to the plaintiff for presentation to the proper court.

The Court stated;

"In this view of the matter, I have no hesitation in coming to

the conclusion that the suit falls within the ambit of Section 16(d)

of the Code of Civil Procedure and the proviso thereto has no

application on the facts of the present case.

In view of my above discussion, it is held that the Delhi

Civil Court has no jurisdiction to try the present suit and as such,

the Plaint in the present suit is returned to the Plaintiff for

presentation in the Proper Court. Parties through their counsel are

directed to present in the proper Court on 5.6.1998."

Being aggrieved by the said order, the appellant approached the

High Court by filing Civil Revision Petition No. 506 of 1998 which also

came to be dismissed. Against the said order, the appellant has

approached this Court. Notice was issued on December 06, 1999 and

parties were directed to maintain status quo. On April 17, 2000, leave

was granted, operation of the judgment was stayed and the Additional

District Judge, Tis Hazari, Delhi, was allowed to proceed with the suit

but it was stated that he would not deliver judgment "until further

orders". Status quo granted earlier was ordered to be continued. The

appeal has now come up for final hearing.

We have heard learned counsel for the parties.

Ms. Indu Malhotra, learned counsel for the appellant contended

that the courts below have committed an error of law as well as of

jurisdiction in allowing the amendment in the written statement and in

holding that Delhi Court had no jurisdiction. She submitted that the

defendants were having their Head Office at Delhi, the agreement had

been entered into at Delhi, payment was to be made and in fact made at

Delhi, breach of agreement took place at Delhi and hence Delhi Court

had jurisdiction to entertain the suit and the plaintiff could have

instituted the suit in Delhi Court. It was also submitted that the parties

had agreed that the Delhi Court alone had jurisdiction in all matters

arising out of the transaction. It was urged that in the facts and

circumstances of the case, the courts below should not have exercised

discretionary jurisdiction in favour of the party who had filed a written

statement in which jurisdiction of Delhi Court had been expressly

admitted. The written statement was filed in 1989 but an amendment

application was moved after more than eight years. Serious prejudice

had been caused to the plaintiff due to delay on the part of the

defendants. When the defendants had waived the objection as to

jurisdiction by specifically admitting the jurisdiction of Delhi Court,

amendment ought not to have been allowed by the trial court nor such

order could have been confirmed by the High Court. The learned

counsel also submitted that even after the amendment was allowed and

amended written statement was filed, in the amended reply also, the

defendants had stated that the jurisdiction of the court was "admitted".

The counsel submitted that even on merits, no case had been made

out by the defendants. At the most, it was a case of accrual of cause of

action in more than one court. As Clause 28 of the agreement

specifically provided that the transaction would be subject to the

jurisdiction of Delhi Court, institution of suit in Delhi Court by the

plaintiff could not have been objected to and no order could have been

passed by the trial court holding that it had no jurisdiction and the plaint

was required to be returned to the plaintiff for presentation to the proper

court.

Clause 28 of the agreement reads thus;

"The Delhi High Court or Courts subordinate to it, alone

shall have jurisdiction in all matters arising out of touching

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and/or concerning this transaction."

Finally, it was submitted that at the time of granting leave and

admitting appeal, this Court permitted the trial court to proceed with the

matter. Accordingly, the evidence was led by the parties and the trial is

concluded. In view of the order of this Court, the trial court could not

deliver the judgment. Considering the fact that the agreement was

executed in August, 1985 and more than two decades have passed, this

Court may issue necessary direction to the trial court to deliver

judgment.

Mr. Rohatgi, Senior Advocate appearing for the respondents, on

the other hand, supported the order passed by the trial court and

confirmed by the High Court. He submitted that the suit relates to

specific performance of agreement relating to immovable property. In

accordance with the provisions of Section 16 of the Code, such suit can

be instituted where the immovable property is situate. Admittedly the

property is situate in Gurgaon (Haryana). Delhi Court, therefore, has no

jurisdiction to entertain the suit which is for specific performance of

agreement of purchase of a plot - immovable property - situate outside

Delhi. According to the counsel, even if it was not contended by the

defendants that Delhi Court had no jurisdiction or there was an

admission that Delhi Court had jurisdiction, it was totally irrelevant and

immaterial. If the court had no jurisdiction, parties by consent cannot

confer jurisdiction on it. The counsel also submitted that this is not a

case in which two or more courts have jurisdiction and parties have

agreed to jurisdiction of one court. According to Mr. Rohatgi, Section 20

of the Code would apply where two courts have jurisdiction and the

parties agree as to jurisdiction of one such courts by restricting their right

to that forum instead of the other. When Delhi Court had no jurisdiction

whatsoever, no reliance could be placed either on Section 20 of the Code

or on Clause 28 of the agreement. The order passed by the trial court

and confirmed by the High Court is, therefore, legal and lawful and the

appeal deserves to be dismissed, submitted the counsel.

Having heard learned counsel for the parties and having

considered the relevant provisions of the Code as also the decisions cited

before us, in our opinion, the order passed by the trial court and

confirmed by the High Court deserves no interference. As stated above,

it is an admitted fact that the suit relates to the recovery of immovable

property, a plot admeasuring 264 sq. mtrs. in the Residential Colony \026

DLF Qutub Enclave Complex, Gurgaon. It is not in dispute by and

between the parties that the property is situate in Haryana. It is no doubt

true that the defendants are having their Head Office at Delhi. It is also

true that the agreement was entered into between the parties at Delhi. It

also cannot be denied that the payment was to be made at Delhi and

some instalments were also paid at Delhi. The pertinent and material

question, however, is in which court a suit for specific performance of

agreement relating to immovable property would lie?

Now, Sections 15 to 20 of the Code contain detailed provisions

relating to jurisdiction of courts. They regulate forum for institution of

suits. They deal with the matters of domestic concern and provide for

the multitude of suits which can be brought in different courts. Section

15 requires the suitor to institute a suit in the court of the lowest grade

competent to try it. Section 16 enacts that the suits for recovery of

immovable property, or for partition of immovable property, or for

foreclosure, sale or redemption of mortgage property, or for

determination of any other right or interest in immovable property, or for

compensation for wrong to immovable property shall be instituted in the

court within the local limits of whose jurisdiction the property is situate.

Proviso to Section 16 declares that where the relief sought can be

obtained through the personal obedience of the defendant, the suit can be

instituted either in the court within whose jurisdiction the property is

situate or in the court where the defendant actually or voluntarily resides,

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or carries on business, or personally works for gain. Section 17

supplements Section 16 and is virtually another proviso to that section.

It deals with those cases where immovable property is situate within the

jurisdiction of different courts. Section 18 applies where local limits of

jurisdiction of different courts is uncertain. Section 19 is a special

provision and applies to suits for compensation for wrongs to a person or

to movable property. Section 20 is a residuary section and covers all

those cases not dealt with or covered by Sections 15 to 19.

Section 16 thus recognizes a well established principle that actions

against res or property should be brought in the forum where such res is

situate. A court within whose territorial jurisdiction the property is not

situate has no power to deal with and decide the rights or interests in

such property. In other words, a court has no jurisdiction over a dispute

in which it cannot give an effective judgment. Proviso to Section 16, no

doubt, states that though the court cannot, in case of immovable property

situate beyond jurisdiction, grant a relief in rem still it can entertain a suit

where relief sought can be obtained through the personal obedience of

the defendant. The proviso is based on well known maxim "equity acts

in personam, recognized by Chancery Courts in England. Equity Courts

had jurisdiction to entertain certain suits respecting immovable

properties situated abroad through personal obedience of the defendant.

The principle on which the maxim was based was that courts could grant

relief in suits respecting immovable property situate abroad by enforcing

their judgments by process in personam, i.e. by arrest of defendant or by

attachment of his property.

In Ewing v. Ewing, (1883) 9 AC 34 : 53 LJ Ch 435, Lord Selborne

observed :

"The Courts of Equity in England are, and always have

been, courts of conscience operating in personam and not in rem;

and in the exercise of this personal jurisdiction they have always

been accustomed to compel the performance of contracts in trusts

as to subjects which were not either locally or ratione domicilli

within their jurisdiction. They have done so, as to land, in

Scotland, in Ireland, in the Colonies, in foreign countries."

The proviso is thus an exception to the main part of the section

which in our considered opinion, cannot be interpreted or construed to

enlarge the scope of the principal provision. It would apply only if the

suit falls within one of the categories specified in the main part of the

section and the relief sought could entirely be obtained by personal

obedience of the defendant.

In the instant case, the proviso has no application. The relief

sought by the plaintiff is for specific performance of agreement

respecting immovable property by directing the defendant No. 1 to

execute sale-deed in favour of the plaintiff and to deliver possession to

him. The trial court was, therefore, right in holding that the suit was

covered by clause (d) of Section 16 of the Code and the proviso had no

application.

In our opinion, the submission of the learned counsel for the

appellant that the parties had agreed that Delhi Court alone had

jurisdiction in the matters arising out of the transaction has also no force.

Such a provision, in our opinion, would apply to those cases where two

or more courts have jurisdiction to entertain a suit and the parties have

agreed to submit to the jurisdiction of one court.

Plain reading of Section 20 of the Code leaves no room of doubt

that it is a residuary provision and covers those cases not falling within

the limitations of Sections 15 to 19. The opening words of the section

"Subject to the limitations aforesaid" are significant and make it

abundantly clear that the section takes within its sweep all personal

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actions. A suit falling under Section 20 thus may be instituted in a court

within whose jurisdiction the defendant resides, or carries on business, or

personally works for gain or cause of action wholly or partly arises.

It is, no doubt true, as submitted by Ms. Malhotra that where two

or more courts have jurisdiction to entertain a suit, parties may by

agreement submit to the jurisdiction of one court to the exclusion of the

other court or courts. Such agreement is not hit by Section 28 of the

Contract Act, 1872, nor such a contract can be said to be against public

policy. It is legal, valid and enforceable.

Before more than thirty years, such question came up for

consideration before this Court in Hakam Singh v. Gamon (India) Ltd.,

(1971) 3 SCR 314. It was the first leading decision of this Court on the

point. There, a contract was entered into by the parties for construction

of work. An agreement provided that notwithstanding where the work

was to be executed, the contract 'shall be deemed to have been entered

into at Bombay' and Bombay Court 'alone shall have jurisdiction to

adjudicate' the dispute between the parties. The question before this

Court was whether the court at Bombay alone had jurisdiction to resolve

such dispute.

Upholding the contention and considering the provisions of the

Code as also of the Contract Act, this Court stated :

"By Clause 13 of the agreement it was expressly stipulated

between the parties that the contract shall be deemed to have been

entered into by the parties concerned in the city of Bombay. In

any event the respondents have their principal office in Bombay

and they were liable in respect of a cause of action arising under

the terms of the tender to be sued in the courts of Bombay. It is

not open to the parties by agreement to confer by their agreement

jurisdiction on a court which it does not possess under the Code.

But where two courts or more have under the Code of Civil

Procedure jurisdiction to try a suit or proceeding on agreement

between the parties that the dispute between them shall be tried

in one of such courts is not contrary to public policy. Such an

agreement does not contravene Section 28 of the Contract Act."

(emphasis supplied)

Hakam Singh was followed and principle laid down therein

reiterated in several cases thereafter. (See Globe Transport Corporation

v. Triveni Engineering Works & Anr., (1983) 4 SCC 707, A.B.C.

Laminart (P) Ltd. & Anr. v. A.P. Agency, Salem, (1989) 2 SCR 1, Patel

Roadways Ltd., Bombay v. Prasad Trading Co., (1991) 4 SCC 270,

R.S.D.V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd.,

(1993) 2 SCC 130, Angile Insulations v. Devy Ashmore India Ltd. &

Anr., (1995) 4 SCC 153, Shriram City Union Finance Corporation Ltd.

v. Rama Mishra, (2002) 9 SCC 613, New Moga Transport Co. v. United

India Insurance Co. Ltd. & Others (2004) 4 SCC 677).

The question, however, is whether Delhi Court has jurisdiction in

the matter. If the answer to that question is in the affirmative, the

contention of the plaintiff must be upheld that since Delhi Court has also

jurisdiction to entertain the suit and parties by an agreement had

submitted to the jurisdiction of that court, the case is covered by Section

20 of the Code and in view of the choice of forum, the plaintiff can be

compelled to approach that court as per the agreement even if other court

has jurisdiction. If, on the other hand, the contention of the defendant is

accepted and it is held that the case is covered by Section 16 of the Code

and the proviso to Section 16 has no application, nor Section 20 would

apply as a residuary clause and Delhi Court has no jurisdiction in the

matter, the order impugned in the present appeal cannot be said to be

contrary to law. As we have already indicated, the suit relates to specific

performance of an agreement of immovable property and for possession

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of plot. It is, therefore, covered by the main part of Section 16. Neither

proviso to Section 16 would get attracted nor Section 20 (residuary

provision) would apply and hence Delhi Court lacks inherent jurisdiction

to entertain, deal with and decide the cause.

The High Court considered the submission of the plaintiff that

Delhi Court had jurisdiction to entertain the suit but negatived it. The

Court, after referring to various decisions cited at the Bar, concluded;

"From the aforesaid principles laid down by the Supreme

Court it is abundantly clear that where the parties to a contract

agreed to vest jurisdiction to a particular Court although cause of

action has arisen within the jurisdiction of different Courts,

including that particular Court, the same cannot be said to be void

or to be against the public policy. It was also made clear in the

said decision that if however a particular Court does not have any

jurisdiction to deal with the matter and no part of cause of action

has arisen within the jurisdiction of that Court, the parties by their

consent and mutual agreement cannot vest jurisdiction in the said

Court. Therefore, a clause vesting jurisdiction on a Court which

otherwise does not have jurisdiction to decide the matter, would

be void as being against the public policy."

We are in agreement with the above observations and hold that

they lay down correct proposition of law.

Ms. Malhotra, then contended that Section 21 of the Code,

requires that the objection to the jurisdiction must be taken by the party

at the earliest possible opportunity and in any case where the issues are

settled at or before settlement of such issues. In the instant case, the suit

was filed by the plaintiff in 1988 and written statement was filed by the

defendants in 1989 wherein jurisdiction of the court was 'admitted'. On

the basis of the pleadings of the parties, issues were framed by the court

in February, 1997. In view of the admission of jurisdiction of court, no

issue as to jurisdiction of the court was framed. It was only in 1998 that

an application for amendment of written statement was filed raising a

plea as to absence of jurisdiction of the court. Both the courts were

wholly wrong in allowing the amendment and in ignoring Section 21 of

the Code. Our attention in this connection was invited by the learned

counsel to Hira Lal v. Kali Nath, (1962) 2 SCR 747 and Bahrein

Petroleum Co. v. Pappu, 1966 (1) SCR 461.

We are unable to uphold the contention. The jurisdiction of a

court may be classified into several categories. The important categories

are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii)

Jurisdiction over the subject matter. So far as territorial and pecuniary

jurisdictions are concerned, objection to such jurisdiction has to be taken

at the earliest possible opportunity and in any case at or before settlement

of issues. The law is well settled on the point that if such objection is not

taken at the earliest, it cannot be allowed to be taken at a subsequent

stage. Jurisdiction as to subject matter, however, is totally distinct and

stands on a different footing. Where a court has no jurisdiction over the

subject matter of the suit by reason of any limitation imposed by statute,

charter or commission, it cannot take up the cause or matter. An order

passed by a court having no jurisdiction is nullity.

In Halsbury's Laws of England, (4th edn.), Reissue, Vol. 10; para

317; it is stated;

317. Consent and waiver. Where, by reason of any

limitation imposed by statute, charter or commission, a court

is without jurisdiction to entertain any particular claim or

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matter, neither the acquiescence nor the express consent of

the parties can confer jurisdiction upon the court, nor can

consent give a court jurisdiction if a condition which goes to

the jurisdiction has not been performed or fulfilled. Where

the court has jurisdiction over the particular subject matter of

the claim or the particular parties and the only objection is

whether, in the circumstances of the case, the court ought to

exercise jurisdiction, the parties may agree to give

jurisdiction in their particular case; or a defendant by

entering an appearance without protest, or by taking steps in

the proceedings, may waive his right to object to the court

taking cognizance of the proceedings. No appearance or

answer, however, can give jurisdiction to a limited court, nor

can a private individual impose on a judge the jurisdiction or

duty to adjudicate on a matter. A statute limiting the

jurisdiction of a court may contain provisions enabling the

parties to extend the jurisdiction by consent."

In Bahrein Petroleum Co., this Court also held that neither consent

nor waiver nor acquiescence can confer jurisdiction upon a court,

otherwise incompetent to try the suit. It is well-settled and needs no

authority that 'where a court takes upon itself to exercise a jurisdiction it

does not possess, its decision amounts to nothing.' A decree passed by a

court having no jurisdiction is non-est and its validity can be set up

whenever it is sought to be enforced as a foundation for a right, even at

the stage of execution or in collateral proceedings. A decree passed by a

court without jurisdiction is a coram non judice.

In Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 : AIR 1954

SC 340, this Court declared;

"It is a fundamental principle well established that a decree

passed by a court without jurisdiction is a nullity and that its

invalidity could be set up whenever and it is sought to be enforced

or relied upon, even at the stage of execution and even in

collateral proceedings. A defect of jurisdiction \005 strikes at the

very authority of the court to pass any decree, and such a defect

cannot be cured even by consent of parties." (emphasis supplied)

The case on hand relates to specific performance of a contract and

possession of immovable property. Section 16 deals with such cases and

jurisdiction of competent court where such suits can be instituted. Under

the said provision, a suit can be instituted where the property is situate.

No court other than the court where the property is situate can entertain

such suit. Hence, even if there is an agreement between the parties to the

contract, it has no effect and cannot be enforced.

In Setrucharlu v. Maharaja of Jeypore, 46 IA 151 : AIR 1919 PC

150, a suit was instituted in subordinate court for possession of mortgage

property partly situated in Vizagapatam and partly in a Schedule District

to which the provisions of the Code did not apply. No objection as to

jurisdiction of the court was taken by the defendant and the decree was

passed. In appeal, however, such objection was taken by the defendant.

Relying on Section 21 of the Code, the High Court overruled the

objection. The defendant approached the Privy Council. Upholding the

contention and partly reversing the decree, the Judicial Committee of the

Privy Council stated;

"The learned Judges of the Court of Appeal thought that the

matter was met by Section 21 of the Code, which provides that no

objection as to the place of suing shall be allowed by any appellate

court unless the objection was taken in the court of First Instance,

which in this case had admittedly not been done. Their Lordships

cannot agree with this view. This is not an objection as to the

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place of suing; it is an objection going to the nullity of the order

on the ground of want of jurisdiction." (emphasis supplied)

In New Mofussil Co. Ltd. & Another v. Shankerlal Narayandas

Mundade, AIR 1941 Bom 247 : ILR 1941 Bom 361, almost a similar

question came up for consideration before the High Court of Bombay.

In that case, a suit for specific performance of contract and possession of

immovable property situated at Dhulia was filed in the Court of First

Class Subordinate Judge, Dhulia against defendant No. 1 \026 Company in

liquidation. The registered office of the Company was in Bombay and

the agreement was finally concluded in Bombay. It was, therefore,

contended that Dhulia Court had no jurisdiction to try the suit. It was,

however, held by the High Court that the case was covered by Clause (d)

of Section 16 of the Code, the Proviso had no application and since the

property was situated at Dhulia, Subordinate Judge, Dhulia had

jurisdiction to entertain and try the suit. (See also Anand Bazar Patrika

Ltd. v. Biswanath Prasad, AIR 1986 Pat 57)

In the instant case, Delhi Court has no jurisdiction since the

property is not situate within the jurisdiction of that court. The trial court

was, therefore, right in passing an order returning the plaint to the

plaintiff for presentation to the proper court. Hence, even though the

plaintiff is right in submitting that the defendants had agreed to the

jurisdiction of Delhi Court and in the original written statement, they had

admitted that Delhi Court had jurisdiction and even after the amendment

in the written statement, the paragraph relating to jurisdiction had

remained as it was, i.e. Delhi Court had jurisdiction, it cannot take away

the right of the defendants to challenge the jurisdiction of the court nor it

can confer jurisdiction on Delhi Court, which it did not possess. Since

the suit was for specific performance of agreement and possession of

immovable property situated outside the jurisdiction of Delhi Court, the

trial court was right in holding that it had no jurisdiction.

The learned counsel for the appellant drew out attention to Rule 32

of Order XXI of the Code which relates to execution. It, however,

presupposes a decree passed in accordance with law. Only thereafter

such decree can be executed in the manner laid down in Rules 32, 34 or

35 of Order XXI. Those provisions, therefore, have no relevance to the

question raised in the present proceedings.

For the foregoing reasons, in our opinion, no case has been made

out by the appellant against the order passed by the trial court and

confirmed by the High Court. The appeal, therefore, deserves to be

dismissed and is accordingly dismissed. In the facts and circumstances

of the case, however, there shall be no order as to costs.