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TMI Blog1950 (8) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... also carried on in British India. Since the suit was filed, however, the position of the parties qua this Court has been fundamentally altered. Not only is the charity a foreign charity in the sense that the benefit which was available to the pilgrims when visiting Iraq, was to be obtained by them outside the limits of British India, but even the trustees who are administering the trust are not residents of the territory where the writ of the State under which the Court functions continues to run. The effect of the change is of far-reaching importance to the constitution of the suit. As I will hereafter advert, this Court at the date when the suit was instituted have been in a position to grant directions to defendants Nos. 1 to 9 in personam, and if the plaintiff's case was established, those directions might have been enforced by directing the defendants personally to comply with the orders, but since partition this Court is incompetent to issue even personal directions against the trustees. The defendants have not made this submission in their written statement and have not expressly claimed that this Court is incompetent to proceed with the suit on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the persons who are not within the limits of the jurisdiction of this Court. Normally a Court must have regard to circumstances existing as at the date when the issue of jurisdiction is tried and must decide it in the light of circumstances existing as at that date. 3. In considering the preliminary issue the Court must look to the averments in the plaint and consider any objections which the defendant may choose to raise against the maintainability of the action on those averments. The question of jurisdiction which is raised by way of a demurrer has always to be decided on the allegations made in the plaint and not on the contentions that the defendant may raise. It is true that if the jurisdiction of the Court depends upon the proof of a fact and the question as to the existence or otherwise of that fact is canvassed, the parties may lead evidence in support of their respective cases before the preliminary issue as to the jurisdiction of the Court is decided. But in the present case there is no scope for recording evidence for arriving at a conclusion as to the existence of any fact on the proof of which alone the Court's jurisdiction depends. 4. Now, the Court' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ole or any part of the subject-matter of the trust is situate. This Court in the City of Bombay is the principal Civil Court of original jurisdiction, and if within the local limits of the jurisdiction of this Court the whole or any part of the subject-matter of the trust is situate then this Court would have jurisdiction to entertain the suit. Again, if within the jurisdiction of this Court the subject-matter of the suit or any part thereof is not situate, then notwithstanding the fact that the defendants or any of them were residing or carrying on business within the jurisdiction of this Court, this Court would have no jurisdiction to entertain the suit, nor would it have jurisdiction on the allegations that the cause of action or a part thereof has arisen within those limits. In my view Clause 12, Letters Patent can only apply to those cases regarding which no provision is made in the Civil P. C. relating to the jurisdiction of this Court. Normally, the territorial jurisdiction of a Court has to be ascertained by reference to the provisions of Sections 16 to 20, Civil P. C., but by reason of the express provision made in Section 120, Civil P. C., the provisions of Sections 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry on business or personally work for gain within the local limits of its ordinary original jurisdiction, for otherwise one would have to ignore the mandatory provisions of Sub-section (2). Admittedly three of the properties which are alleged to be the subject-matter of the trust are situate within the limits of this Court's jurisdiction, prima facie this Court would have jurisdiction to entertain the suit and decide it. 6. But it is argued on behalf of the defendants that the provisions of the Civil P. C. can only apply within the limits of the State and they cannot have any extra territorial operation, and that a State by legislating cannot confer jurisdiction upon Municipal Courts, to deal with Immovable property outside their jurisdiction, except in the limited class of cases which may fall within what may be termed the equity jurisdiction ; nor can it exercise any powers against persons who are not domiciled in the country and Who do not submit to the jurisdiction of the Municipal Court. Mr. Banaji on behalf of defendants Nos. 1 to 9 has further contended that the present suit is one substantially for administration of a foreign trust and for removal of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities on international law; among others, by 'Story' (Conflict of Laws, 2nd ed., Sections 546, 549, 553, 554, 556, 586), and by Chancellor Kent (Commentaries, Vol. 1, p. 234, note c, 10th Ed.). It is clear on the authority of the judgment of their Lordships of the Privy Council that this Court would always be entitled to deal with questions which arise in respect of Immovable property situate within the limits of the State, subject of course to the laws procedural or otherwise which may be passed by the Indian Legislature. But so far as the personal obedience of the defendants to any directions which this Court may choose to give, it can only be as against the nationals of this country or against foreigners who may submit themselves to the jurisdiction of this Court. According to the rules of international law, however, to which all legislation of a State must be deemed subject, a decree against a nonresident foreigner issuing personal directions would be regarded as a nullity outside the limits of the State. 8. In the present case, the charity is a foreign charity; it is administered in a foreign country, and even the trustees are residing in a foreign country, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Their Lordships regarded the question as one more of discretion of the High Court than of the inherent want of jurisdiction of the Court to entertain the suit for the relief asked for. Their Lordships observed that they were satisfied that there was no defect or want of jurisdiction of the Court to entertain the suit. They observed that once it was admitted that part of the cause of action arose within the jurisdiction (so as to satisfy the requirements of Clause 12, Letters Patent), no great importance attached to the place where the trust was created or its money invested, if there was no question of preserving or recovering its property, and if the only question was as to the country whose Court should supervise the conduct of the charity and the application of its funds. They also stated that the High Court at Bombay had proceeded upon settled principles correctly to exercise its discretion, and they supported that view by observing that it would be a matter of very great inconvenience and would render the administration of that trust intolerable. Their Lordships of the Privy Council drew a distinction between the jurisdiction to entertain the suit as framed, which may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framing scheme and for further and other reliefs. Even if this Court be incompetent to grant the reliefs, which interfere with the administration of the trust in the foreign countries, such as framing a scheme, removal of trustees and appointment of new trustees and corresponding reliefs, this Court can at least protect the property within its jurisdiction for the benefit of the trust, and to that end pass all such consequential orders as may be necessary. 13. It must be observed that the application for leave to file the suit under Clause 12, Letters Patent was not necessary as indicated earlier, the jurisdiction of this Court depended upon the existence or otherwise of properties within the jurisdiction of this Court and not upon any part of the cause of action arising within that jurisdiction. It is true that their Lordships of the Privy Council in -- 'Bilasrai Juharmal v. Shivnarayan Sarupchand', (D), appear to have proceeded upon the assumption that the jurisdiction of the Court in that case was derived by reason of the leave granted under Clause 12, Letters Patent, that leave not having been challenged at the trial. It does not appear to have been pointed out to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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