Allowed

Said Mohammed v. N.Nowfal

Kerala HC14 Nov 2016FAO/73/2016

Case brief

AI extract

What is this about?

In a first appeal, the Kerala High Court held that the High Court below erred in returning a plaint for lack of territorial jurisdiction based on disputed facts regarding defendants' residence without evidence. The court allowed the appeal, set aside the return order, and directed the lower court to proceed with the suit regarding share transfer.

What did the court decide?

The impugned order directing return of plaint was set aside; the lower court is directed to proceed with the suit.

Said Mohammed Vs N.Nowfal — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938

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FAO.No. 73 of 2016 ()

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AGAINST THE COMMON ORDER DATED 9.2.2016 IN I.A.NOS.1671/2015 AND 1672/2015 IN O.S.NO.31/2015 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, TIRUR)

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APPELLANT(S)/PLAINTIFF:

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SAID MOHAMMED, AGED 65 YEARS, S/O. ADUVANNI AVARU HAJI, PALAPPURA, KOTTAKKAL POST, MALAPPURAM DISTRICT, PIN:676503.

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BY ADVS.SRI.T.KRISHNANUNNI (SR.) SMT.MEENA.A. SRI.VINOD RAVINDRANATH SRI.SAJU.S.A SRI.K.C.KIRAN SRI.VINAY MATHEW JOSEPH SRI.ASHWIN SATHYANATH

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RESPONDENT(S)/DEFENDANTS:

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N.NOWFAL S/O LATE ISMAIL HAJI, NELLIKKAPARAMBIL, 12/171, RAYIRIMANGALAM, TANUR POST, MALAPPURAM DISTRICT, PIN:676302. 2. N.FAIZAL S/O LATE ISMAIL HAJI, NELLIKKAPARAMBIL, 12/171, RAYIRIMANGALAM, TANUR POST, MALAPPURAM DISTRICT, PIN:676302. N.FAROOK S/O LATE ISMAIL HAJI, NELLIKKAPARAMBIL, 12/171, RAYIRIMANGALAM, TANUR POST, MALAPPURAM DISTRICT, PIN:676302.

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R1-R2 BY ADV. SRI.G.SREEKUMAR (CHELUR) R3 BY ADV. SRI.K.MOHANAKANNAN R3 BY ADV. SMT.A.R.PRAVITHA

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 14-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & ANIL K.NARENDRAN, JJ. --------------------F.A.O.No.73 of 2016 --------------------Dated this the 14^th day of November, 2016

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J U D G M E N T

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Chitambaresh, J.

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The suit is one for realisation of a sum of

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`.1,13,04,227/- with interest thereon at 6% per annum from the defendants to the plaintiff. The claim is rested on an alleged deed of transfer of shares between the plaintiff and the defendants. Defendant Nos.2 and 3 are the brothers of defendant No.1 who is the son-inlaw of the plaintiff. All the defendants have been shown as residing within the jurisdiction of the court below in the plaint. Defendant Nos.2 and 3 alone dispute the territorial jurisdiction on the premise that they are residents of Chennai.

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The defendants are yet to file their

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written statement and raise the question of jurisdiction as a preliminary issue. Even the same can be raised under Order XIV Rule 2(2) CPC only if it pertains to an issue of law only. The question of residence in the instant case is a disputed fact which can be resolved after evidence. The court below erred in invoking Order VII Rule 10 CPC pre-maturely and

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FAO.73/2016

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directing the plaint to be returned.

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Defendant No.1 does not dispute his residence shown in the plaint and the court below does not lack inherent jurisdiction. All that is required is the leave of the court under Section 20(b) CPC in case defendant Nos.2 and 3 are residing at Chennai. Such an application for leave is warranted only if the residence of defendant Nos.2 and 3 is conceded by the plaintiff which is not so. It is trite law that the averments in the plaint alone need be looked into to entertain a suit and confer jurisdiction.

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Even otherwise 'a debtor is bound to seek out the creditor' when the contract is silent as to the place of performance. The law in this regard is well laid down in Ramasubramaniam v. Ranganathan [1978 KLT 906 (DB)] which applies on all fours. A roving enquiry as regards the place of residence is uncalled for under Order VII Rule 10 CPC. We have no option other than to allow the First Appeal against Order under Order XLIII Rule 1(a) CPC. The impugned order of the court below directing the plaint to be returned for want of territorial jurisdiction is set aside. The court below

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FAO.73/2016

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is directed to proceed ahead with the suit in accordance with the observations above.

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The First Appeal against Order is allowed. No

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costs.

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Sd/V.CHITAMBARESH, Judge.

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Sd/ANIL K.NARENDRAN, Judge.

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nj/14.11.2016

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//True copy//

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P.S. to Judge.

Said Mohammed v. N.Nowfal

Case brief

What is this about?

What did the court decide?

Said Mohammed v. N.Nowfal

Case brief

What is this about?

What did the court decide?

What the court decided

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