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CODE OF CIVIL PROCEDURE, 1908

Section 16 - Suits
to be instituted where subject-matter situate

Comments

It provides that a suit to obtain relief respecting, or compensation for wrong to, immovable property, held by or on behalf of the defendant may,
where relief sought can be entirely obtained through his personal obedience, be instituted either in the Court, within the local limits of whose
jurisdiction property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on
business or personally works for gain. This provision is based on maxim—'equity acts in personam'. The decree in such cases, where property
does not situate but defendant resides and requires his personal obedience can be executed by arrest of defendant judgment-debtor or by
attachment of his personal property within the jurisdiction of such Court.

CODE OF CIVIL PROCEDURE, 1908

Section 16 - Suits
to be instituted where subject-matter situate

Comments

The 'Explanation' given in the section makes it clear that "property" means property situate in India. In other words Courts in India have no
jurisdiction in respect of immovable property situated outside territorial limits of India. However, a suit for mesne profits or a suit for accounts against
the parties who are resident of India may lie in India, in respect of immovable properties a part of which lie outside India. For original jurisdiction of
High Courts see Section 120 of the Code and the provisions of Letters Patent Act.

CODE OF CIVIL PROCEDURE, 1908

Section 16 - Suits
to be instituted where subject-matter situate

  Comments

 Actually and voluntarily resides or works for gain.—See Notes on Section 20 of the Code.

CODE OF CIVIL PROCEDURE, 1908

Section 16 - Suits
to be instituted where subject-matter situate
 

ANNOTATION

Reference/ Relevance within Section 18 (Place of

Statute institution of suit where local
Section 9 (Courts to try all limits of jurisdiction of Courts
Civil suits unless barred) are uncertain);

Section 15 (Court in which Section 19 (Suits for

suits to be instituted)
Section 17 (suits for
immovable property situate
within jurisdiction of
different Courts);
compensation for wrongs to
person or movables)
Section 20 (Other suits to be
instituted where Defendant
reside or cause of action
arises)

Case Cited

1. Official Trustee v. Sachindra, MANU/SC/0240/1968: AIR 1969 SC 823.

2. Praking v. State Bank of Indore MANU/MP/0010/1996: AIR 1996MP28.

3. In re Distt. Judge, AIR 1971 Ori 89.

4. Fazlehussein Haiderbhoy v. Yusufally Adamji MANU/MH/0072/1955: AIR 1955Bom55.

5. Shree Shanthi Homes Private Limited v. Cref Finance Limited MANU/KA/0146/2002: AIR 2002 KAR
252.

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6. S.K. Jwala v. Lama Helem Ian MANU/WB/0051/1978: AIR 1978 Cal 247.

7. Harshad Chiman Lal Modi v. DLF Universal MANU/SC/0710/2005, AIR2005SC4446,

(2005)7SCC791; Suresh Jain v. Dinesh Kumar MANU/DE/1108/2008, AIR2008Delhi127; Rahdey Lal
v. The Chief Administration, Haryana Urban Development Authority MANU/DE/0160/2008; Ashok Jain
v. Ajay Enterprises Pvt. Ltd MANU/DE/8584/2007.

8. Luxmi Kumar v. Krishna Ram, AIR 1954 MB 156.

9. Minor Dorairaj v. K.R. Karuppiah Ambalam MANU/TN/0102/1970: AIR 1970 Mad 119; Durgadas v.
Jainarain, AIR 1919 All 350.

10. Sheo Bhagwan v. Onkarmal, MANU/MH/0103/1952: AIR 1952Bom365.

11. Rosy v. Union Bank, MANU/KE/0043/1978: 1978 Ker LT 340 : ILR 1978 (1) Ker 676.

12. D.K. Bhargava v. Maya Devi MANU/DE/1989/2001: AIR 2001 Del 139; Syndicate Bank v. K.
Gangadhar AIR 1992 Ker 163.

13. Mrs. Rosy Joseph v. Union Bank of India MANU/KE/0043/1978: AIR 1978Ker209.

14. Minor Dorairaj v. K.R. Karuppiah Ambalam MANU/TN/0102/1970: AIR 1970Mad119; Durgadas v.
Jainarain, AIR 1919 All 350.

15. Ananda Bazar Patrika v. B. P. Maitin, MANU/BH/0015/1986: AIR 1986Pat57.

16. Priyanka Vivek Batra v. Neeru Malik MANU/DE/1228/2008, 154(2008)DLT354.

17. State of Assam v. Biraj Mohan, AIR 1965 Assam 32.

18. Begum Sabiha Sultan v. Nawab Mohd. Mansur Ali Khan Esq. MANU/DE/1150/2005.

19. Union Bank v. Logic Systems, AIR 1992 Del 153; Hadibandhu Mallik v. Chandra Shekhar Behera
AIR 1973 Ori 141.

20. Harshad Chiman Lal Modi v. D.L.F. Universal ltd. MANU/SC/0710/2005: AIR 2005 SC 4446.

21. Chidambram v. Subramaniam, MANU/TN/0241/1953: AIR 1953Mad492.

22. Dorairaj v. Karuppiah, MANU/TN/0102/1970: AIR 1970 Mad 119.

SYNOPSIS

1. Scope 3. Suit for partition of an

........................................... immovable property
172 ........................................
173
2. Suit for recovery of
immovable property 4. Suit for foreclousure, sale
........................................ or redemption in case of a
173 mortgage..173

Page 171

5. Suit for determination of any 8. Proviso to the section

other right or interest in the ................ 174
property
........................................ 9. Explanation to the
173 section ......... 174

10. Actually and voluntarily 6. Suit for compensation

resides or works for gain for wrong to immovable
....................... 175 property ............... 174
7. Suit for recovery of movable  
property under distraint or

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attachment
................................... 174

1. Scope.

Section 16 of the Code deals with the territorial jurisdiction of the Courts in regard to suits mentioned
in Clauses (a) to (f) of the said section. Clauses (a) to (e) deal with the immovable property and
Clause (f) deals with an aspect of movable property.

Jurisdiction means the power to hear and decide the particular controversy that has arisen between
the parties (Official Trustee v. Sachindra).1 The jurisdiction is to be decided by considering the
averments made in the plaint (Praking v. State Bank of Indore).2 If at the time of institution of suit, a
Court has territorial jurisdiction over a property, then transfer of such property out of local
jurisdiction during the pendency of suit, does not divest the jurisdiction of such Court (In re Distt.
Judge).3 The object of the section is that the Court who entertains a controversy regarding a property
must be able to give effective Judgment. The section embodies the already existing principles of
common law.

Normally, the territorial jurisdiction of a Court has to be ascertained by reference to the provisions of
Sections 16 to 20, Code of Civil Procedure, but by reason of the express provision made in Section
120, Code of Civil Procedure, the provisions of Sections 16, 17 and 20 do not apply to this Court in
the exercise of its ordinary original civil jurisdiction. The jurisdiction of the Bombay High Court to
decide a suit in the exercise of its original civil jurisdiction is required to be ascertained under Clause
12, Letters Patent (Fazlehussein Haiderbhoy v. Yusufally Adamji).4

Section 16 has overriding effect on Section 20 as ultimately if relief is granted to the Respondent, he
has to work out his remedy against the immoveable properties (Shree Shanthi Homes Private Limited
v. Cref Finance Limited).5 Section 20 as its terms indicate is subject to limitation of Section 16, the
proviso whereof provides that where the relief sought for 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 resides or carries on business for gain
(S.K. Jwala v. Lama Helem Ian).6

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
(Harshad Chiman Lal Modi v. DLF Universal; Suresh Jain v. Dinesh Kumar; Rahdey Lal v. The Chief
Administration, Haryana Urban Development Authority; Ashok Jain v. Ajay Enterprises Pvt. Ltd).7

2. Suit for recovery of immovable property.

A suit for recovery of possession of immovable property should be instituted in the Court in whose
jurisdiction the whole or any portion of such property situates (Luxmi Kumar v. Krishna Ram).8 This
Section would apply only to a case where the title of the Plaintiff is denied by the Defendant and the
Plaintiff seeks to recover the properly from the Defendant (Minor Dorairaj v. K.R. Karuppiah
Ambalam).9 The suit for possession against the tenant, licensee and trespassers would be included in
Clause (a) of Section 16.

3. Suit for partition of an immovable property.

A suit for partition of immovable property lies where the immovable property is situated (Sheo
Bhagwan v. Onkarmal).10 The principle of jurisdiction of Courts where the Defendants reside and
work for gain, enshrined in Section 20 of the Code would not be applicable in suits of partition. Where
the immovable properties subject to partition is situated is different jurisdictions than each of such
Court would have the jurisdiction to entertain the suit.
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4. Suit for foreclousure, sale or redemption in case of a mortgage.

Likewise, a suit for foreclosure, sale or redemption of the property under mortgage suit can be filed in
the Court within the jurisdiction of which mortgaged properties are situate (Rosy v. Union Bank).11
The only exception is with respect to cases covered by the proviso to the said section. The proviso
covers only suits to obtain compensation for wrong to immovable property or other relief in respect of
immovable property where the relief sought can be entirely obtained through the personal obedience
of the Defendant (D.K. Bhargava v. Maya Devi; Syndicate Bank v. K. Gangadhar).12

The provision contained in Section 20 permitting suits to be instituted in Courts within the local limits
of whose jurisdiction the Defendant actually and voluntarily resides, or carries on business etc. or
where the cause of action, wholly or in part, arises, is expressly stated to be subject to the limitations
laid down in Sections 16 to 19. Hence, in a case which is directly governed by Section 16 (c), Section
20 cannot be called in aid and it is not permissible for the Plaintiff to institute the suit in any Court
other than the one within the local limits of whose jurisdiction the mortgage properties are situate
(Mrs. Rosy Joseph v. Union Bank of India).13

5. Suit for determination of any other right or interest in the property.

For the same reason Clause (d) of Section 16 would not apply because there was no dispute about
the right to immoveable property or interest in immoveable property (Minor Dorairaj v. K.R.
Karuppiah Ambalam; Durgadas v. Jainarain).14 A suit for determination of interest in immovable
property e.g. suit for specific performance of contract, also lie where the property is situate (Ananda
Bazar Patrika v. B. P. Maitin).15

The relief of declaration cannot fall in the proviso to Section 16 Code of Civil Procedure in as much as
Defendant is not required to do anything. The Apex Court in Harshad Chiman Lal Modi (2005) 7 SCC
791 has held that the proviso does not apply to suits for specific performance also even where the
Defendant is within the jurisdiction of the Court. Grant of the relief of declaration will necessarily
entail determination of rights to or interest in immovable property and which the legislature has
provided, can be done only by Court within the local jurisdiction of which the property is situated. If
declaration is granted in favour of the Plaintiff, the same will necessarily entail also declaring transfer
of the said properties recorded in concerned offices where the property is situated (Priyanka Vivek
Batra v. Neeru Malik).16

6. Suit for compensation for wrong to immovable property.

Clause (e) of the section refers to compensation for wrongs of civil nature regarding some immovable
property e.g. trespass, nuisance etc.

7. Suit for recovery of movable property under distraint or attachment.

Clause (f) is the only provision in the section regarding movable property. For application of this
clause, the suit must be one for recovery for property under attachment or distraint (State of Assam
v. Biraj Mohan).17 The Order of attachment may be passed under this Code or any other statute.

8. Proviso to the section.

The proviso to Section 16 of the Code provides that a suit to obtain relief respecting, or compensation
for wrong to, immovable property, held by or on behalf of the Defendant may, where relief sought
can be entirely obtained through his personal obedience, be instituted either in the Court, within the
local limits of whose jurisdiction property is situate, or in the Court within the local limits of whose
jurisdiction the Defendant actually and voluntarily resides or carries on business or personally works
for gain . (Begum Sabiha Sultan v. Nawab Mohd. Mansur Ali Khan Esq.).18 This provision is based on
maxim--'equity acts in personam'. The decree in such cases, where property does not situate but
Defendant resides and requires his personal obedience can be executed by arrest of Defendant
Judgment-debtor or by attachment of his personal property within the jurisdiction of such Court
(Union Bank v. Logic Systems; Hadibandhu Mallik v. Chandra Shekhar Behera).19 The proviso to
Section 16 is thus, an exception to the main part of the section which 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 (Harshad Chiman Lal Modi v. D.L.F. Universal
ltd.).20

9. Explanation to the section.

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The 'Explanation' given in the section makes it clear that "property" means property situate in India.
In other words Courts in India have no jurisdiction in respect of immovable property situated outside
territorial limits of India (Chidambram v. Subramaniam).21 However, a suit for mesne profits or a suit
for accounts against the parties who are resident of India may lie in India, in respect of immovable
properties a part of which lie outside India (Dorairaj v. Karuppiah).22 For original jurisdiction of High
Courts see Section 120 of the Code and the provisions of Letters Patent Act.

10. Actually and voluntarily resides or works for gain.

See Notes on Section 20 of the Code.

CODE OF CIVIL PROCEDURE, 1908

Section 16 - Suits
to be instituted where subject-matter situate

Comments

A suit for recovery of possession of immovable property should be instituted in the Court in whose jurisdiction the whole or any portion of such
property situate. Similarly, a suit for partition of immovable property lies where the property is situate. Likewise, a suit for foreclosure, sale or
redemption of the property under mortgage suit can be filed in the Court within the jurisdiction of which mortgaged properties are situate. A suit for
determination of interest in immovable property e.g. suit for specific performance of contract, also lie where the property is situate. Clause (e) of the
section refers to compensation for wrongs of civil nature regarding some immovable property e.g., trespass, nuisance etc. Clause (f) is the only
provision in the section regarding movable property. For application of this clause, the suit must be one for recovery for property under attachment
or distraint.

The Code of Civil Procedure, 1908

By Anupam Srivastava

Pvt. Ltd.
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