Bimal Das v. Saraswati Seal

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

CO/18/2023 Shri Bimal Das ... Petitioner/Plaintiff Vs.

Smt. Saraswati Seal ...Opposite Party/Defendant Mr. K.M.B. Jayapal ... for the Petitioner/Plaintiff August 25, 2023 [M.A.Mobin] Item No.10 The learned Advocate for the petitioner submits that a suit for declaration of right, title and interest together with perfection of title by way of adverse possession and permanent injunction being Title Suit No.03/2022 was filed before the Court of Civil Judge, Junior Division, Mayabunder on 29th November, 2022. On the same date an order was passed considering the prayer in the application under Section 94(C) read with Order 39 Rule 1 and 2 of the CPC was allowed directing the parties to maintain status quo in respect of the nature, character and possession of the scheduled suit property till 19.12.2022. The Civil Judge, Junior Division, Mayabunder on a later date of 19.12.

2022 observed there needs to be a clarification with regard to the jurisdiction of the Court to try the suit in question and a further date of 29.12.2022 was fixed. On 29.12.

earlier as aforesaid was vacated. Next date was fixed on 23.1.2023 which was further adjourned to 27.3.2023 on the prayer of the learned Advocate for the plaintiff. Vide the impugned order No.5 dated 27.3.2023 the learned Trial Court opined as follows:- "It is undisputed that the suit property is situated within the territorial confines of the Diglipur P.S. The plaintiff and the defendant, as per the cause title of the plaint, are residents of Diglipur and therefore it can be factually presumed that it would be more convenient for them to access and participate in the proceedings at the Circuit Court, Diglipur rather than the Mayabunder Court situated at a further distance of 90 kms.

This Court feels that there is a jurisdictional bar for it to proceed with this matter any further and the same is to be entertained by a Court of competent jurisdiction, being the Circuit Court at Diglipur which has been made operational since 06.08.2012 to deal with the civil cases including emergency applications within it's territorial and pecuniary jurisdiction. Due to the reasons aforesaid, this Court is of the view that the provision laid down under section- 18 of the CPC is not strictly attracted to this case. In consideration of the preceding facts and circumstances, this Court directs that the plaint may be returned to the plaintiff to be presented to a Court having jurisdiction in this matter. The present application dt. 27.03.2023 stands disposed of being devoid of any merit."

The learned Advocate for the petitioner submits that in view of Section 18 (1) of the Civil Procedure Code the learned Trial Court erred in returning the plaint rather than relegating the suit filed, to the Circuit Court of Diglipur wherein the suit property is situated.

Section 18(1) CPC states as follows:-

(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the

same effect as if the property were situate within the local limits of its jurisdiction:

Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction."

In the opinion of this Court since there is a Circuit Court in Diglipur and the property is situated within the jurisdiction of the Circuit Court the file of TS No.3 of 2022 should have been transferred thereto. The defendant is yet to appear before the Court to contest the claim of the petitioner/plaintiff.

The impugned order being No.5 of 2023 is set aside. The plaintiff in connection with TS No.03 of 2022 along with the annexed documents be transferred to the Circuit Court of Diglipur for proper adjudication. Notice to be served upon the defendant afresh.

The learned Trial Court is to take necessary steps in disposing of the suit in accordance with law. The ad interim injunction granted earlier on 29.11.2022 is extended till 30th September, 2023. The learned Advocate for the petitioner/plaintiff is to file the plaint before the Court of Civil Judge, Junior Division, Mayabunder for transferring the same to the Circuit Court of Diglipur.

CO No.18 of 2023 is disposed of.

(Ananya Bandyopadhyay, J.)