Section 16. Suits to be instituted where the subject-matter situate
Section 16. Suits to be instituted where the subject-matter situate:
Subject to the
pecuniary or other limitations 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 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 the 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 property is situates
or
In the court within the local limits of whose
jurisdiction the defendant actually and voluntarily resides or carries on
business or personally work for gain.
Explanation: In this
section, “Property” means property situated in India.
Clause
(a) Suits for recovery of immovable property
•
According to Clause (a)
of Section 16, all suits for taking possession/recovery of immovable property
must be instituted before the Court within the local limits of whose
jurisdiction the immovable property is situated.
•
However, it is very
important to note here that the Court within the local limits of whose
jurisdiction the immovable property is situated must also be competent to
try that civil suit.
•
For example : A suit for the recovery of
immovable property situated in the City of Mumbai must be filed in a
Civil Court of Mumbai having jurisdiction to entertain and decide the
suit. The Small Causes Court in Mumbai has no jurisdiction to try and decide
such suit.
Clause (b) Suits for the partition of immovable property
According to Clause (b) of Section 16,
•
any suit in respect of partition of immovable
property
•
must be instituted
•
before the Competent
Civil Court
•
within the Jurisdiction
of which
•
the immovable property
is situated.
Clause
(c) Suits for Foreclosure, Sale or Redemption of mortgaged immovable property
•
If any immovable
property is mortgaged
•
Then if any type of
Civil Suits for foreclosure, sale or redemption is required to be instituted
•
in respect of that
immovable property,
•
then that civil suits
is to be
•
instituted before the
competent civil court
•
within the jurisdiction
of which
•
the immovable property
is situated.
For Example:
A mortgages his
immovable property to B to secure payment of money lent to him by B. In this A
is the mortgagor and B is the mortgagee.
a. Now if A does nor repay the loan of B to him on the
due date, then B may institute a suit against A for the sale of mortgaged
property, so that the mortgage debt may be paid, out of the sale proceeds
of the property; OR
b. B may also sue A for the foreclosure of the
mortgaged property. The decree in a foreclosure suit provided that if the mortgagor fails to pay the amount that may be found due to the mortgagee within
a time specified by the court, then the mortgagor shall be absolutely debarred
of all rights to redeem the property.
c. On the other hand, if A offers payment of the
mortgaged-debt to B, but B disputes the amount with A and also refuses to
reconvey the property to A, then A may sue B for the redemption of the mortgage,
and in that suit the court will passes a decree ordering an account in relation
to the amount what will due to B, and directing that upon A paying to B the
amount so due, B shall reconvey the property to A.
All these types of suits for foreclosure, sale or
redemption must be instituted before the court within whose territorial
jurisdiction the mortgaged property is situated.
Clause (d): Suits for
the determination of any other right to or interest in Immovable Property:
A suit for determination of any other right to or
interest in immovable property is triable only by that court within whose
territorial jurisdiction the suit property is situates.
No other court is vested with the power to entertain
such a suit.
It is very important to mention here is that clause
(d) related to such suits in which the determination of any other right to or
interest in immovable property not covered by clauses (a), (b) & (c) is
involved.
The suits which fall under this category include:
1. A suit for injunction restraining interference with
the plaintiff’s possession over the land;
2. A suit for
maintenance with a prayer that the payment should be charged on immovable
property;
3. A suit for specific performance of agreement to
sell immovable property;
4. A suit asking relief of declaration which is
related with the determination of rights to or interest in immovable property;
5. Suits relating to have water – course opened, right
to eject a person from land, right to future rent to fishing in enclosed water,
right to easement, right to remove obstruction etc.
All types of these suits must be brought in the court
within whose territorial jurisdiction the property is situated, keeping in view
its pecuniary jurisdiction.
Clause (e) - Wrong to immovable property
·
This clause is
applicable to all those suits in which compensation is claimed by the plaintiff
for wrong done to the immovable property.
·
The expression “wrong to immovable property”
denotes all kinds of torts in relation to immovable property such as trespass,
nuisance, infringement of easement etc.
·
The appropriate forum
for claiming damages for such wrongs is the civil court within whose
territorial jurisdiction the property is situated, keeping in view of its
pecuniary limits.
Clause (f) – Movable Property actually under distraint or attachment
·
The movable property
does not have a locality of its own, instead it follows the person.
·
But once the movable
property is attached, then its locality becomes fixed.
·
A suit for recovery of
such a property under distraint or attachment must be instituted in a court
within whose territorial jurisdiction the property is situated, subject to its
pecuniary limits.
Proviso to the Section 16
·
There is a proviso
attached to Section 16 of CPC.
·
This proviso gives an
option to the plaintiff to choose the court for
filing the suit:
a.
(i) Where a suit is in respect of
relief respecting immovable property; or
(ii) Where a suit is for compensation for wrong done
to immovable property.
b. which immovable property is held
by or on behalf of the defendant; &
c. where the relief sought can be
obtained through the personal obedience of the defendant,
then the plaintiff may bring the suit in relation to
the property in any one of the following courts:
i. the court within the local limits of whose
jurisdiction the property is situated; or
ii. the court within the local limits of whose
jurisdiction the defendant actually and voluntarily resides or carries on
business, or personally works for gain.
Explanation
·
The explanation
attached to Section 16 says that the term “property” means property situated in
India.
·
Therefore, it is made
clear that the authority of Indian Courts is limited to the suits relating to
properties which are situated within India and it does not extend to the
properties which are situated outside India.
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