AO-407-2026.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.407 OF 2026

WITH

INTERIM APPLICATION NO.4613 OF 2026

IN

APPEAL FROM ORDER NO.407 OF 2026

Nouveau Exports Pvt. Ltd.

A company incorporated under the

Companies Act 1956having its registered

O�ce at 1302, Vaishali, New Teacher’s Colony,

Aliyavar Jung Marg, Bandra (East),

Mumbai – 400 051

…Appellant/

(Orig. Plainti�)

Versus

1. Punita Capoor

Residing at D-75, Ridgewood Estates,

DLF Phase-IV, Gurgaon,

Haryana – 122009

2. Shringar Impex Pvt. Ltd.

A company incorporated under the

Companies Act 1956 having its

Registered o�ce at 1/7, Santa Sadan,

Ground Floor, North South Road No.10,

JVPD Scheme, Juhu,

Mumbai – 400049

...Respondents

(Orig. Defendants)

——————

Mr. P. G. Sabnis a/w Ms. Kashmira Khedekar for the Appellant/Applicant

Mr. Naushad Engineer, Senior Advocate as amicus curiae a/w Ms. Mehak

Shah

Mr. Praveen Sharma (Through VC) a/w Mr. Harshad M. Inamdar for the

Respondents

——————

CORAM : SHARMILA U. DESHMUKH, J.

DATE : JULY 15, 2026

SQ Pathan 1/21

SHAGUFTA

QUTBUDDIN

PATHAN

Digitally signed

by SHAGUFTA

QUTBUDDIN

PATHAN

Date:

2026.07.15

17:58:57

+0530

AO-407-2026.doc

JUDGMENT :

1.Heard. Admit. With consent, taken up for �nal disposal.

2.The Appeal is at the instance of the original Plainti�, being

aggrieved by the impugned order dated 17

th

February 2020, passed by

the Bombay City Civil Court in Chamber Summons No. 2273 of 2015 in

Suit No. 4241 of 2011, returning the plaint to the Plainti� under Order

VII Rule 10 of the Code of Civil Procedure, 1908 (for short `CPC’) for

presentation to the proper Court.

3.Suit No 2289 of 2011 was �led seeking speci�c performance of

agreement for sale dated 20

th

October, 2000 executed between the

Plainti� as one party and Defendant No 1 and her sister as the other

party in respect of property being undivided property No 79, Jeevan

Nagar, Kilokari, New Delhi and for possession of the suit property. The

claim in the suit was valued at Rs 24 Lakhs. Leave under Clause XII of

Letters Patent was applied and was granted by this Court on 17

th

August, 2011 by way of endorsement on the plaint to that e�ect.

4.Pursuant to the Bombay City Civil Court (Amendment) Act, 2012,

there was an increase in the pecuniary jurisdiction of the Bombay City

Civil Court, by which the City Civil Court could receive and dispose of all

suits and other proceedings of civil nature not exceeding Rupees One

Crore arising within Greater Bombay. On 27

th

November, 2015, the suit

came to be transferred from High Court to the Bombay City Civil Court

SQ Pathan 2/21

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in view of the enhancement of the pecuniary jurisdiction. The

Defendant No. 1 �led Chamber Summons No. 2273 of 2015 under

Order VII Rule 11 of CPC seeking rejection of the plaint, on the ground

of the suit being barred by Section 16 of the CPC. Vide order dated 12

th

January, 2017, the Trial Court dismissed the chamber summons holding

that jurisdiction would have to be framed as a preliminary issue and

decided at the trial and the plaint cannot be rejected. As against this,

Civil Revision Application came to be �led and the High Court quashed

and set aside the order of Trial Court and remanded the chamber

summons for fresh hearing as there was no consideration as to

whether the suit was barred under Section 16 of the CPC.

5.Vide impugned order dated 17

th

February, 2020, the Trial Court

opined that in view of Section 16(d) of CPC, the suit had to be �led

within the jurisdiction of Delhi High Court. It noted the judicial

pronouncements that in the case of a suit for land which is not situated

in Mumbai, leave under Clause XII cannot be granted. It further noted

that, as per amendment of the Bombay City Civil Court (Transfer of

Suits) Rules, 2012, particularly Rule 3, the City Civil Court has the

powers and jurisdiction in respect of the transferred suit as if it had

been originally instituted in the City Civil Court, and the leave which

had been granted under Clause XII of the Letters Patent would have no

e�ect. It further noted that, as there was a bar of territorial

SQ Pathan 3/21

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jurisdiction, the plaint was required to be returned for presentation to

the proper Court and rejected the prayer for rejection of the plaint and

instead returned the plaint under Order VII Rule 10.

6.By order dated 11

th

December 2025, this Court appointed Mr.

Naushad Engineer, learned Senior Advocate, as amicus curiae to assist

the Court.

7.Mr. Engineer, learned amicus curiae, submits that the question

which arises for consideration is whether the City Civil Court could

conclude that it did not have the jurisdiction to entertain the suit when

leave under Clause XII of the Letters Patent had been granted by this

Court. He submits that the suit in the present case is for speci�c

performance of an agreement for sale of land along with a speci�c

prayer for possession, and is therefore a suit for land. As the land is

situated in New Delhi, the Courts in Mumbai would lack jurisdiction to

entertain the suit. He submits that leave under Clause XII is granted by

the Court prior to the stage of acceptance of the suit and in the

absence of the Defendant. He submits that the course which is

available to a Defendant where leave has been granted under Clause

XII is to apply for revocation of leave or raise the issue in the written

statement, to be decided at the time of trial. He submits that the

judicial pronouncements make it clear that, if the lack of jurisdiction is

clear, an application for revocation of leave is maintainable. He submits

SQ Pathan 4/21

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that, considering the prayer sought in the plaint, which was speci�c

performance along with the suit for possession, the suit being for land,

this was a clear case of lack of jurisdiction in which an application for

revocation was maintainable.

8.He submits that, by reason of the increase in the pecuniary

jurisdiction of the City Civil Court, the suit came to be transferred to

the City Civil Court. He points out that the consequence of such

transfer is provided in Section 4A of the Bombay City Civil Court Act,

1948 (as amended by the Amendment Act of 2012). He submits that,

upon a plain reading of Section 4A(2), which provides that the City Civil

Court shall have all powers and jurisdiction in respect of the

transferred suit as if it had been originally instituted before that Court,

it would be open to the Defendant to raise the issue that the City Civil

Court does not have the jurisdiction to decide the suit. He submits that

the provisions of Sections 16, 17, and 20 of the CPC apply with full

force to the City Civil Court, and merely because leave under Clause XII

was granted, in a clear case warranting return of the plaint, an

appropriate application could have been �led by the Defendant, and it

is not required to undergo a full trial in a Court which clearly does not

have jurisdiction.

9.He submits that, even assuming that the suit had remained

before the High Court, the Defendant could have taken out an

SQ Pathan 5/21

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application for revocation of leave, and as the suit was transferred, the

Defendant could have �led an application for return of the plaint in

view of Section 4A of the Bombay City Civil Court Act, 1948. He submits

that, considering Clause XII of the Letters Patent, if the suit is for land,

the High Court would have jurisdiction to entertain such a suit only if

the land is situated within its territorial jurisdiction. He submits that

the grant of leave under Clause XII does not preclude the Defendant

from challenging the jurisdiction of the Court to hear and decide the

suit. He submits that the impugned order correctly directs return of

the plaint. In support, he relies upon the following decisions:

i. Isha Distribution House Pvt. Ltd. v. Aditya Birla Nuvo

Ltd. & Anr.

1

ii. Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr.

2

iii. Kanchan Dayal Shewakramani & Anr. v. Benchmark Town

Planning LLP & Anr.

3

iv. D. G. Kotak & Anr. v. Rajeshkumar @ Rajas R. Doshi &

Ors.

4

v. Vinod Grover & Ors. v. Videocom Realty & Infrastructure

Ltd. & Ors.

5

vi. Sudhir G. Angur & Ors. v. M. Sanjeev & Ors.

6

1 (2019) 12 SCC 205

2 (2005) 7 SCC 791

3 2018 SCC OnLine Bom 3907

4 2011 SCC OnLine Bom 1690

5 2018 SCC OnLine Bom 3908

6 (2006) 1 SCC 141

SQ Pathan 6/21

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10.Mr. Sabnis, learned counsel appearing for the Appellant would

submit that, once leave under Clause XII of the Letters Patent has been

granted by the High Court, the transferee Court has no jurisdiction to

sit in review or appeal against that decision, and the subordinate Court

cannot be permitted to take a di�erent view. He submits that it is

settled by judicial pronouncements that, once leave is granted, the

issue of territorial jurisdiction becomes a mixed question of law and

fact and can be considered only at the trial after the written statement

is �led by the Defendant. He submits that, if a plaint is returned under

Order VII Rule 10, it will lead to a de novo trial, and in a given case, if

the enhancement of pecuniary jurisdiction takes place at the end of the

trial and the City Civil Court returns the plaint, the new Court will have

to conduct the trial afresh, which is not the legislative intent. He

submits that, upon a statutory transfer, if the transferee Court is

permitted to undertake a fresh review of territorial jurisdiction, it

would lead to several di�culties.

11. He submits that the High Court and the Civil Court operate in

di�erent procedural �elds as regards territorial jurisdiction is

concerned. He submits that, in a reverse situation, if, on account of

reduction of the pecuniary jurisdiction of the High Court, a suit is

transferred from the City Civil Court to the High Court, a suit �led

SQ Pathan 7/21

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based on a part of the cause of action in the City Civil Court would not

be maintainable in the High Court for want of leave, as leave cannot be

obtained after �ling of the suit. He submits that Section 16 of the CPC

does not apply to the High Court in view of Section 120 of the CPC. He

submits that the word used in Order VII Rule 10 is "return" and not

"transfer", and since the plaint was never �led in the City Civil Court,

there is no question of return of the plaint. He would make an

alternative argument that, under the Amendment Act and the Rules,

suits triable by the City Civil Court are transferred and excluded suits

have not been transferred, and if the City Civil Court comes to the

conclusion that, after transfer, it has no jurisdiction because Clause XII

leave does not apply to it, the only option available is to send the

matter back to the High Court. In support, he relies upon the following

decisions:

i. Indian Mineral & Chemicals Co. & Ors. v. Deutsche Bank

7

ii. Isha Distribution House Pvt. Ltd. v. Aditya Birla Nuvo

Ltd. & Anr. (supra)

iii. EXL Careers & Anr. v. Frank�nn Aviation Services Pvt.

Ltd.

8

12.Mr. Sharma, learned counsel appearing for the Respondents

would submit that a conjoint reading of Sections 3, 4A(2), 5, and 12 of

7 (2004) 12 SCC 376

8 (2020) 12 SCC 667

SQ Pathan 8/21

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the Bombay City Civil Court Act, 1948, makes it clear that the City Civil

Court has exclusive jurisdiction, and the jurisdiction is not governed by

the Letters Patent, which apply exclusively to the High Court. He

submits that any leave granted by the High Court under Clause XII prior

to the date of transfer loses signi�cance, as the Letters Patent is

applicable only to the High Court and is not applicable to the City Civil

Court. He submits that, in view of Section 4A of the Bombay City Civil

Court Act, 1948, the suits have to be treated as having been originally

instituted in that Court, meaning thereby that the Code of Civil

Procedure would govern the procedure of trial, and Section 16 would

therefore apply. He submits that, as the relief sought in the suit was

for speci�c performance along with possession, the suit was one for

land, and the City Civil Court would not have the territorial jurisdiction

to entertain the suit. He submits that the arguments of the Appellant

su�er from the fallacy that the leave under Clause XII granted by the

High Court will continue to regulate suits which are transferred from

the High Court to the City Civil Court, which is contrary to the

Noti�cation dated 30

th

August 2012 and the Bombay City Civil Court

Act, 1948. In support, he relies upon the following decisions:

i. Adcon Electronics Pvt. Ltd. v. Daulat & Anr.

9

ii. Dr. P. A. Subramanian v. S. Ramasamy & Ors.

10

9 (2001) 7 SCC 698 : 2001 SCC OnLine SC 1096

10 2014 SCC OnLine Mad 2720

SQ Pathan 9/21

AO-407-2026.doc

iii. EXL Careers & Anr. v. Frank�nn Aviation Services Pvt.

Ltd. (supra)

13. Rival contentions now arise for determination.

14.The issue which was framed by this Court as arising for

consideration in the order dated 12

th

November 2025 reads as under:

"Whether, on a true and proper construction of Rule 3 of the

Bombay City Civil Court (Transfer of Suits) Rules, 2012, the

City Civil Court was justi�ed in coming to the conclusion that

leave under Clause XII of the Letters Patent granted prior to

the noti�cation of the said Rules would become non-

operative/withdrawn, and consequently, the City Civil Court

can examine afresh the issue of the appropriate Court in

which the suit had been �led?"

15.The facts are undisputed that the plaint seeks the relief of

speci�c performance of an agreement for sale which was executed in

Mumbai and also seeks possession of land which is situated in Delhi.

The suit was initially �led in the High Court in its ordinary original civil

jurisdiction as the suit claim was valued at Rs 24 Lakhs, which was

beyond the pecuniary jurisdiction of the City Civil Court. The

jurisdictional clause in the plaint reads as under:

“23. That the above noted cause is within the pecuniary and

non pecuniary jurisdiction of the court. The Plainti� and the

Defendant No 2 are having their respective o�ces at

Mumbai. The Agreement dated 20

th

October, 2000 was

signed, executed and delivered to the Plainti� in

Mumbai. The entire transaction has taken place in

SQ Pathan 10/21

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Mumbai, however, Defendant No 1 is residing out of

Mumbai beyond the jurisdiction of this Hon’ble Court

and the property is also situated at Delhi, hence, upon

granting leave under Clause XII of the Letters Patent,

this Hon’ble Court will have jurisdiction to try and

entertain the present suit.”

16.In view of the pleading in the jurisdictional clause to the e�ect

that part of cause of action had taken place outside Mumbai, leave

under Clause XII of the Letters Patent was granted by this Court, by

way of endorsement on the plaint dated 17

th

August 2011. Clause XII of

the Letters Patent reads as under :

“12. Original jurisdiction as to suits

And We do further ordain that the said High Court of

Judicature at Bombay, in the exercise of its ordinary original

civil jurisdiction, shall be empowered to receive, try, and

determine suits of every description, if, in the case of suits for

land or other immovable property such land or property shall

be situated, or in all other cases if the cause of action shall have

arisen, either wholly, or, in case the leave of the Court shall

have been �rst obtained, in part, within the local limits of the

ordinary original jurisdiction of the said High Court or if the

defendant at the time of the commencement of the suit shall

dwell or carry on business, or personally work for gain. within

such limits; except that the said High Court shall not have such

original jurisdiction in cases falling within the jurisdiction of the

Small Cause Court at Bombay, in which the debt, or damage, or

value of property sued for does not exceed one hundred

rupees.”

17.Upon a reading of Clause XII of the Letters Patent, it is clear that

the High Court can exercise jurisdiction in cases: (a) where the suit is

for land or other immovable property, such land or property is situated

SQ Pathan 11/21

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within the local limits of ordinary original jurisdiction of High Court and

(b) in all other cases if the cause of action has arisen either wholly

within the jurisdiction of High Court and where it has arisen in part

within the jurisdiction of High Court with leave of the Court and (c)

where the Defendant resides or carries on business within such limits.

18.Section 20 of CPC provides for institution of suits where

defendants reside or cause of action wholly or in part arises. Similarly

Clause XII of Letters Patent confers jurisdiction on High Court in cases

where cause of action wholly arises within its jurisdiction and when it

partly arises within its jurisdiction, leave is obtained. The di�erence is

that in case of suits instituted in High Court, where part of cause of

action arises within jurisdiction of High Court, leave is required to be

obtained.

19.By reason of Section 20 of CPC, by treating the suit to be a suit

other than for land, in event the pecuniary jurisdiction would have

permitted, the Plainti� could have �led the suit in the City Civil Court

on the ground that part of cause of action arises within the jurisdiction

of City Civil Court. In such case, it would have been open for the

Defendant to raise an objection to territorial jurisdiction at the earliest

possible opportunity under Section 21 of CPC and could have �led an

application under Order 7 Rule 10 for return of the plaint to the Delhi

High Court. As the City Civil Court did not have the pecuniary

SQ Pathan 12/21

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jurisdiction, the suit came to be �led in the High Court and treating the

suit as a suit other than for land, leave under Clause XII of Letters

Patent was obtained on the ground that part of cause of action arises

outside jurisdiction of High Court. The remedy which would be

available to a party in the City Civil Court seeking return of plaint could

not be denied in case of proceeding before High Court by seeking

revocation of leave.

20.Clause XII of Letters Patent would confer jurisdiction on High

Court in cases of suit for land or immovable property only if the

property is situated within the local limits of ordinary original civil

jurisdiction. As to what constitutes suit for land is now well settled

legal position. In Adcon Electronics Pvt. Ltd. v. Daulat & Anr. (supra),

the Hon'ble Apex Court has held as under:

“A suit for land” is a suit in which the relief claimed relates

to title to or delivery of possession of land or immovable

property. Whether a suit is a “suit for land” or not has to be

determined on the averments in the plaint with reference

to reliefs claimed therein; where the relief relates to

adjudication of title to land or immovable property or

delivery of possession of the land or immovable property, it

will be a “suit for land”.

21. Mr. Sabnis does not dispute this position that suit in present

case would be a suit for land. According to him, once leave under

Clause XII has been granted, the City Civil Court would not have the

SQ Pathan 13/21

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power to review the decision of High Court as to territorial jurisdiction.

The said submission overlooks that by legislative amendment

introducing Section 4A(2) to the Bombay City Civil Court Act, 1948, and

Rule 3 of the Bombay City Civil Court (Transfer of Suit) Rules, 2012, the

City Civil Court is empowered in respect of transferred suit to hear and

dispose of the suit as if it had been originally instituted in that Court.

Rule 3 and 4A read as under:

"3. All suits and/or proceedings, which are liable to be

transferred to the City Civil Court, under sub-section (1) of

Section 4A of the Bombay City Civil Court Act, 1948, shall

stand transferred to the Principal Seat of the Bombay City

Civil Court, Old Secretariat, Bombay, with e�ect from the date

on which Section 4 of the Amending Act shall come into force.

The City Civil Court shall have all the powers and jurisdiction in

respect thereof as if it had been originally instituted in that

Court."

“4A. Transfer of suits and proceedings cognizable

under section 3, to City Court.- (1) Notwithstanding anything

contained in section 9 of the Bombay City Civil Court and the

Bombay Court of Small Causes (Enhancement of Pecuniary

Jurisdiction and Amendment) Act, 1986 (Mah. XV of 1987), all

suits and proceedings cognizable by the City Court under

section 3, and pending in the High Court on the date of coming

into force of section 2 of the Bombay City Civil Court

(Amendment) Act, 2023 (Mah. XLVI of 2023), not being suits or

proceedings falling under clauses (a) to (d) of section 3, shall

stand transferred to the City Court.

(2) Any suit or proceeding so transferred shall be heard

and disposed of by the City Court and the City Court shall have

all the powers and jurisdiction in respect thereof as if it had

been originally instituted in that Court.

SQ Pathan 14/21

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(3) In any such suit or proceeding institution fees shall be

paid credit being given to any Court-fee levied in the High

Court and cost incurred in the High Court till the date of

transfer shall be assessed by the City Court in such manner as

the State Government may, after consultation with the High

Court, determine by rules.”

22. The consequence of the suit being transferred to the City Civil

Court is that the suit is then treated as if originally instituted in the City

Civil Court. The provisions of Sections 16, 17, and 20, which were not

applicable to the High Court in its ordinary original civil jurisdiction by

virtue of Section 120 of the CPC, apply with full force to the City Civil

Court. Thus, upon an application being �led raising an objection of

jurisdiction, the City Civil Court was competent to decide the issue of

jurisdiction as if the suit had been originally instituted in that Court.

23.One of the contentions raised by Mr. Sabnis is that instead of

returning the plaint, the City Civil Court, if �nds, that it does not have

the jurisdiction after transfer, the only option was to send the matter

back to High Court. The answer to this submission lies in Section 15 of

CPC which provides that every suit shall be instituted in the Court of

lowest grade competent to try it and High Court could not have

retained the suit with it. The only reason as to why the suit was �led in

the High Court was by reason of the suit claim being beyond the

pecuniary jurisdiction of the City Civil Court. Upon enhancement of

SQ Pathan 15/21

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pecuniary jurisdiction, the suit was required to be transferred to the

City Civil Court, who was then competent to decide all issues including

the issue of territorial jurisdiction as if the suit was originally instituted

in the City Civil Court.

24.To buttress his submission that the transfer would not clothe the

City Civil Court with the power to examine the issue of territorial

jurisdiction, Mr. Sabnis would illustrate a situation where the

enhancement of pecuniary jurisdiction takes place at concluding end

of the trial and the e�ect of return of plaint under Order VII Rule 10

leads to a de novo trial. The contention envisages a situation where the

High Court has granted leave under Clause XII of Letters Patent and

pecuniary jurisdiction gets enhanced after the trial has commenced

and is at its conclusion. To answer the contention, it will be relevant to

ascertain the remedies which are available to a Defendant where leave

under Clause XII has been granted. At the stage of seeking leave to

institute the suit, the Defendant is not heard. Upon such leave being

granted, the suit is permitted to be taken on �le. The right which is

available to the Defendant, upon causing an appearance in the suit, is

to apply for revocation of the leave or to take the objection to

jurisdiction in the written statement.

25.As to when revocation of leave can be sought is answered in Isha

Distribution House Pvt. Ltd. v. Aditya Birla Nuvo Ltd. & Anr. (supra),

SQ Pathan 16/21

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where the Hon’ble Apex Court noted the decision of Secretary of State

for India in Council v. Golabrai Paliram

11

in paragraph 15 as under:

“15. The observations of Rankin C.J. in Secy. of State for India in

Council v. Golabrai Paliram correctly represent the law as to how

the Court should approach an application for revocation of

leave (SCC OnLine Cal: AIR p 147)

“….I do really protest against questions of di�culty and

importance being dealt with by an application to revoke

the leave under Clause 12 of Letters Patent and to take

the plaint o� the �le. Normally it is well settled that the

proper way to plead to the jurisdiction of the Court is to

take the plea in the written statement and as a substantive

part of the defence. Except in the clearest cases that

should be the course.”

26.It was therefore open for the Defendant to seek revocation of

leave by pointing out clear case of lack of jurisdiction. If the Defendant

did not apply for revocation or though applied was not allowed, while

the High Court was in seisin of suit, the suit will have to go the full

course. Where at the concluding end of the trial in such situation, the

pecuniary jurisdiction is enhanced and the suit is transferred to the City

Civil Court, as the revocation of leave was not sought and/or not

allowed, upon an application �led for return of the plaint for lack of

territorial jurisdiction, by treating the suit as if it had been originally

instituted in the City Civil Court, the issue of lack of territorial

jurisdiction will have to be decided at the time of trial in view of

11 AIR 1932 Cal 146

SQ Pathan 17/21

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Section 21 of CPC. The consequence in such case would be dismissal

on ground of lack of jurisdiction. Depending upon facts of each case,

the City Civil Court would be required to decide whether plaint can be

returned or will have to go full trial, but, by treating the suit as having

been originally instituted in City Civil Court. The situation as illustrated

by Mr. Sabnis does not nullify the e�ect of Section 4A(2) of the

Amendment Act of 2012 and it cannot be accepted that upon transfer,

the Defendant could not have �led an application for return of the

plaint.

27.In the present case, the a�davit in support of notice of motion

indicates that the ex-parte decree of 7

th

August, 2013 was set aside and

the stage was of �ling of written statement. At this stage, the

Defendant was within her rights to seek return of the plaint on the

ground of lack of territorial jurisdiction. The grant of leave under

Clause XII by the High Court does not protect the jurisdiction of the

City Civil Court, as the City Civil Court receives the suit as if it is

originally instituted before it, in view of Section 4A(2) of Amendment

Act of 2012, irrespective of fact that the City Civil Court is subordinate

to the High Court. The leave granted under Clause XII of Letters Patent

confers jurisdiction on the High Court, which jurisdiction does not ipso

facto get transferred to the City Civil Court, by transfer of the suit, if

the City Civil Court lacks jurisdiction.

SQ Pathan 18/21

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28.The adjudication of the application by the City Civil Court does

not constitute review of the grant of leave under Clause XII of Letters

Patent but an inquiry into the lack of territorial jurisdiction, which the

City Civil Court was competent to inquire in view of Section 4A(2) of

the Bombay City Civil Court Act, 1948. In the present case, though the

application was �led under Order 7 Rule 11 seeking rejection, the Trial

Court has returned the plaint instead of rejecting the suit.

29.Mr. Sabnis would support his submission of territorial jurisdiction

being mixed question of fact and law by relying on the decision in Isha

Distribution House Pvt. Ltd. v. Aditya Birla Nuvo Ltd. & Anr. (supra). In

that case, the suit was �led for declaration of termination of two

agreements, damages and injunction etc. The leave under Clause XII of

Letters Patent was granted and revocation of leave was sought on the

ground that no part of cause of action arose with the jurisdiction of the

Calcutta High Court but at Bangalore. The Hon’ble Apex Court noted

that issue of such nature cannot be tried by �ling an application for

revocation of leave by holding that the plea of territorial jurisdiction is

essentially mixed question of law and fact.

30.The facts of the case before the Hon’ble Apex Court required

evidence to be led and was not a clear case of lack of jurisdiction.

Pertinently, the Hon'ble Apex Court noticed the decision in the case of

SQ Pathan 19/21

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Secretary of State for India in Council v. Golabrai Paliram (supra),

which had received approval in Indian Mineral & Chemicals Co. & Ors.

v. Deutsche Bank (supra), wherein it was held that normally it is well

settled, that the proper way to plead to the jurisdiction of the Court is

to take the plea in the written statement and as a substantial part of

the defence and except in the clearest cases, that should be the course.

31.The decision would not assist the case of the Plainti� for the

reason that the present suit is a suit for land and in view of Section 16

of CPC, would lie before the Court within whose jurisdiction the

immovable property is situated. There is no disputed question of fact

involved for the same to be tried as an issue in the suit.

32.The contention that once leave is granted under Clause XII, the

trial has to take its full course is not an absolute proposition and in

clear case, the leave granted under Clause XII can be revoked. Being a

clear case of the suit being suit for land, the High Court would not have

had the jurisdiction and an application for revocation of the leave

would have been perfectly maintainable.

33.There were no submissions which were canvassed on the merits

of the order of return of the plaint and rightly so as the suit was a suit

for land, which would lie before the Delhi High Court. The Trial Court

has rightly considered that, as the suit is one for land, it ought to be

returned for presentation to the proper Court instead of rejecting the

SQ Pathan 20/21

AO-407-2026.doc

plaint, and has exercised its powers under Order VII Rule 10 and

returned the plaint.

34.In light of the discussion above, the grant of leave under Clause

XII of Letters Patent conferring jurisdiction upon the High Court to

entertain and try the suit does not protect the jurisdiction of the City

Civil Court upon transfer of the suit to City Civil Court by reason of

enhancement of pecuniary jurisdiction. In view of Section 4A(2) of

Bombay City Civil Court Act, 1948, the City Civil Court was justi�ed in

examining afresh the issue of territorial jurisdiction and directing

return of plaint under Order VII Rule 10 of the plaint.

35.Resultantly, the Appeal stands dismissed.

36.Interim Application does not survive for consideration and is

disposed of.

37.This Court records its appreciation for the valuable assistance

rendered to this Court by Mr. Naushad Engineer, learned amicus curiae

in assisting the Court in the adjudication of the present dispute.

[SHARMILA U. DESHMUKH, J.]

SQ Pathan 21/21