Nouveau Exports Pvt. Ltd. vs Punita Capoor

Digitally signed
by SHAGUFTA
QUTBUDDIN
PATHAN
Date:
2026.07.15
17:58:57
+0530
CNR No : HCBM010265702020

SHAGUFTA
QUTBUDDIN
PATHAN
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
Office at 1302, Vaishali, New Teacher’s Colony,
Aliyavar Jung Marg, Bandra (East),
Mumbai – 400 051
…Appellant/
(Orig. Plaintiff)
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 office at 1/7, Santa Sadan,
Ground Floor, North South Road No.10,
JVPD Scheme, Juhu,
...Respondents
Mumbai – 400049
(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

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JUDGMENT :
1. Heard. Admit. With consent, taken up for final disposal.
2. The Appeal is at the instance of the original Plaintiff, being
th
aggrieved by the impugned order dated 17 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 Plaintiff 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 filed seeking specific performance of
th
agreement for sale dated 20 October, 2000 executed between the
Plaintiff 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
th
Letters Patent was applied and was granted by this Court on 17
August, 2011 by way of endorsement on the plaint to that effect.
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
th
Crore arising within Greater Bombay. On 27 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 filed Chamber Summons No. 2273 of 2015 under
Order VII Rule 11 of CPC seeking rejection of the plaint, on the ground
th
of the suit being barred by Section 16 of the CPC. Vide order dated 12
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 filed 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.
th
5. Vide impugned order dated 17 February, 2020, the Trial Court
opined that in view of Section 16(d) of CPC, the suit had to be filed
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
effect. 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.
th
6. By order dated 11 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 specific
performance of an agreement for sale of land along with a specific
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 specific
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 filed 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 filed 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
1
Ltd. & Anr.
2
ii. Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr.
iii. Kanchan Dayal Shewakramani & Anr. v. Benchmark Town
3
Planning LLP & Anr.
iv. D. G. Kotak & Anr. v. Rajeshkumar @ Rajas R. Doshi &
4
Ors.
v. Vinod Grover & Ors. v. Videocom Realty & Infrastructure
5
Ltd. & Ors.
6
vi. Sudhir G. Angur & Ors. v. M. Sanjeev & Ors.
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 different 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 filed 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 difficulties.
11. He submits that the High Court and the Civil Court operate in
different procedural fields 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 filed
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 filing 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 filed 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:
7
i. Indian Mineral & Chemicals Co. & Ors. v. Deutsche Bank
ii. Isha Distribution House Pvt. Ltd. v. Aditya Birla Nuvo
Ltd. & Anr. (supra)
iii. EXL Careers & Anr. v. Frankfinn Aviation Services Pvt.
8
Ltd.
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 significance, 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 specific 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
suffer 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
th
Notification dated 30 August 2012 and the Bombay City Civil Court
Act, 1948. In support, he relies upon the following decisions:
9
i. Adcon Electronics Pvt. Ltd. v. Daulat & Anr.
10
ii. Dr. P. A. Subramanian v. S. Ramasamy & Ors.
9 (2001) 7 SCC 698 : 2001 SCC OnLine SC 1096
10 2014 SCC OnLine Mad 2720
SQ Pathan 9/21

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iii. EXL Careers & Anr. v. Frankfinn Aviation Services Pvt.
Ltd. (supra)
13. Rival contentions now arise for determination.
14. The issue which was framed by this Court as arising for
th
consideration in the order dated 12 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 justified in coming to the conclusion that
leave under Clause XII of the Letters Patent granted prior to
the notification 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 filed?"
15. The facts are undisputed that the plaint seeks the relief of
specific 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 filed 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 Plaintiff and the
Defendant No 2 are having their respective offices at
th
Mumbai. The Agreement dated 20 October, 2000 was
signed, executed and delivered to the Plaintiff 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 effect
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
th
way of endorsement on the plaint dated 17 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 first 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 difference 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 Plaintiff could have filed 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 filed 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 filed 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
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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 effect 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 filed 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 finds, 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 filed in
the High Court was by reason of the suit claim being beyond the
pecuniary jurisdiction of the City Civil Court. Upon enhancement of
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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 effect 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 file. 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
11
for India in Council v. Golabrai Paliram 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 difficulty and
importance being dealt with by an application to revoke
the leave under Clause 12 of Letters Patent and to take
the plaint off the file. 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 filed 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
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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 effect of Section 4A(2) of the
Amendment Act of 2012 and it cannot be accepted that upon transfer,
the Defendant could not have filed an application for return of the
plaint.
27. In the present case, the affidavit in support of notice of motion
th
indicates that the ex-parte decree of 7 August, 2013 was set aside and
the stage was of filing 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.
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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 filed 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 filed 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 filing 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 Plaintiff 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
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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 justified 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
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