BINDU BABU v. CLAUDIO COLANGELO & DHANYA MOL MANIYAMMA

1 CRP 346/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27932 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 19[TH] DAY OF MARCH 2025 / 28TH PHALGUNA, 1946 ``` ``` CRP NO.346OF 2023 ``` ``` OS NO.1507 OF 2022 OF II ADDITIONAL MUNSIFF COURT, ``` ## **`THIRUVANANTHAPURAM`** ## **`REVISION PETITIONER/S:`** ``` BINDU BABU, AGED 40 YEARS D/O MANIYAMMA, KALLUKUNNU VEEDU, VANDIPURA, PALYAMKUNNU P.O, VARKALA, THIRUVANANTHAPURAM ., PIN - 695146 ``` ``` BY ADV LIJU. M.P ``` ## **`RESPONDENT/S:`** - **`1 CLAUDIO COLANGELO, AGED 71 YEARS S/O GIOVANNI, BECO DA MOURAENCANTADA 5 R/C ESQ A, 8800-665 TAVIRA, PORTUGAL; REPRESENTED THROUGH HIS POWER OF ATTORNEY HOLDER S. AMBUJAKSHAN, AGED 68 YEARS, S/O MR. SADASIVAN 2/354CHARUVILA VEEDU, KEDAKULAM, HARIHARAPURAM P.O THIRUVANANTHAPURAM, PIN - 695310`** - **`2 DHANYA MOL MANIYAMMA, AGED 25 YEARS W/O CLAUDIO COLANGELO, BECO DA MOURA ENCANTADA 5 R/C ESQ A, 8800-665 TAVIRA, PORTUGAL; REPRESENTED THROUGH HER POWER OF ATTORNEY HOLDER S. AMBUJAKSHAN, AGED 68 YEARS, S/O MR. SADASIVAN 2/354 CHARUVILA VEEDU, KEDAKULAM, HARIHARAPURAMP.O THIRUVANANTHAPURAM ., PIN - 695310`** ``` BY ADVS.ANOOP BHASKAR AMMU MANOHARAN NARAYANAN(K/683/2014) SATHYA SREEKUMARAN(K/003541/2022) ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON ``` ``` 19.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 CRP 346/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27932 ## **O R D E R** (Dated this the 19[th] day of March 2025) The revision petitioner is the defendant in O.S.No.1507 of 2022 on the files of the 2[nd] Additional Munsiff Court, Thiruvananthapuram. The respondents are the plaintiffs therein. The suit was filed for the realisation of money and for the recovery of movables. The suit was filed before the Munsiff court, Thiruvananthapuram, as, according to the plaintiffs, part of the cause of action arose within the territorial jurisdiction of the Munsiff court, Thiruvananthapuram. 2. On receipt of summons, the defendant entered appearance and filed I.A.No.6 of 2023 to hear and consider the maintainability of suit as a preliminary issue. The trial court heard the maintainability petition and, by order dated 4.4.2023, held that the question of territorial jurisdiction is a mixed question of law and fact and, therefore, cannot be disposed of as a preliminary 3 CRP 346/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27932 issue. Thus, the petition was dismissed. Aggrieved by the order, this revision is filed under Section 115 CPC. 3. Counsel for the petitioner, Sri.Liju M.P. argued that a reading of the entire pleading would show that the entire cause of action occurred at Varkala, and therefore, the Munsiff court, Thiruvananthapuram, does not have the territorial jurisdiction to try the suit. 4. The suit is filed for the realization of Rs.2,86,000/from the defendant and her assets and for a direction to return the Italian coffee machine, grinder, Refrigerator, and Microwave Oven to the 1[st] plaintiff. The defendant is running a small coffee shop called ‘Café Aromatico’ at Varkala Cliff. It is also pleaded in the plaint that on 19.2.2020, a fire broke out in the cafe, and the shop was fully gutted. During that period, 1[st] plaintiff was at Varkala, and the defendant approached him with a request to help 4 CRP 346/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27932 to set up the cafe in the same location. The 1[st] plaintiff assured to help the defendant to set up the new cafe. 5. It is further pleaded that in order to set up the café, the materials required for the structure of the cafe were purchased from ‘Brother Steels & Tubes, Muttathara’ and a coffee vending machine was brought from Italy and delivery was from the International Airport, Thiruvananthapuram and then taken to the cafe. Thus, it is admitted that the coffee machine, though delivered through the International Airport, Thiruvananthapuram, was delivered at Varkala, and therefore, no part of the cause of action arose within the Munsiff court, Thiruvananthapuram, even if steel materials were purchased from Thiruvananthapuram. Since the suit is filed for recovery of money, that cannot be taken as a cause of action. Therefore, prayed that the order in I.A. No.6 of 2023, be set aside and declare that the Munsiff court, 5 CRP 346/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27932 Thiruvananthapuram has no territorial jurisdiction to entertain the suit. He relied on the judgment of this court in **Dhanalakshmi S. v. Sahal V J. (2022 KHC 395) and also Union of India and others v. Adani Exports Ltd, and another (** 2002 KHC 1103) **.** 6. Per contra, the counsel for the respondents argued that in the plaint, it is specifically averred that the drawings for setting up of the cafe was done by a friend of the 1[st] plaintiff in Italy, and materials were purchased from ‘Brothers Steels and Tubes’, Muttuthara in Thiruvananthapuram, for an amount of Rs.67,330/- and the coffee machine was taken delivery by the 1[st] plaintiff from International Airport, Thiruvananthapuram. Moreover, a fridge and microwave oven were purchased through the Amazon e-commerce platform by the 1[st] plaintiff. Therefore, a part of the cause of action arose within the jurisdiction of the Munsiff court, Thiruvananthapuram, and hence, the suit is very 6 CRP 346/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27932 well maintainable. He relied on the judgment of the apex court in **Isha Distribution House Private Limited v. Aditya Birla Nuvo Limited and another** [(2019) (12) SCC 205] and **Gomez v. Manual Gomez and others** (2012 KHC 2227) **.** 7. The trial court, after hearing both parties, held that under section 20© of the Code of Civil Procedure, if any part of the cause of action had arisen within the jurisdiction of the court and it is a mixed question of fact and law, it cannot be considered as a preliminary issue. Therefore, dismissed the petition. 8. Under section 20 CPC, ordinarily, the suit is to be instituted where the defendants reside or cause of action arises. Sub clause (c) allows to institute a suit where the cause of action wholly or part arises. 9. The suit is filed for recovery of money and return of an Italian coffee machine. In para 17 of the plaint, the plaintiff 7 CRP 346/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27932 alleges that the required materials for setting up the structure of the cafe was brought from ‘Brothers Steels and Tubes’, Muttuthara, Thiruvananthapuram for Rs.67,330/- and the coffee machine was cleared, and the 1[st] plaintiff paid for the customs clearance of the coffee machine and took delivery by him from the Thiruvananthapuram International Airport. Therefore, the part of cause action arose within the territorial jurisdiction of Munsiff Court, Thiruvananthapuram and thus, the suit was laid. 10. It is to be noted that though the petitioner has filed the petition to hear the question of maintainability as a preliminary issue, no written statement has been filed to date. The contention is that the coffee machine and grinder purchased from Italy cost Rs.1,25,000/-, and the same has already been paid to the first plaintiff. 8 CRP 346/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27932 11. The expression 'cause of action' means that bundle of facts which the petitioner must prove, if traverses, to entitle him to a judgment in his favour by the court. So, the determining factor is facts pleaded in support of the cause of action. The plaintiff alleges that part of the cause action arose in Thiruvananthapuram and the defendant had not yet filed the written statement to the plaint averments. 12. In **Isha Distribution House** (supra), the apex court held that a plea of territorial jurisdiction is essentially a mixed question of law and fact; therefore, the defendant should be allowed to raise such a plea in the written statement to enable the court to try on its merits in accordance with law in the light of the requirements of Order 14 CPC and other relevant provisions governing the issue, on merits. 9 CRP 346/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27932 13. The trial court has held that since it is a mixed question of law and fact, it cannot be disposed of at the preliminary stage. But at the same time, the trial court held that the suit is very well maintainable. Both these cannot go together. Once the court finds that it is a mixed question of law and fact, the trial court cannot enter into a finding at this stage that the suit is maintainable. Therefore, the impugned order is liable to be set aside, and I do so. In the result, this C.R.P. is allowed and the trial court is directed to reconsider the issue of territorial jurisdiction after the defendant has filed the written statement in the suit, if the law permits so. **Sd/-BASANT BALAJI, JUDGE** dl/ 10 CRP 346/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27932 ``` APPENDIX OF CRP 346/2023 ``` ``` PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE PLAINT IN OS NO.1507/2022 ON THE FILE OF ADDL.MUNSIFF-II, THIRUVANANTHAPURAM Annexure 2 TURE COPY OF THE PETITION I.A NO.6/2023 IN OS NO.1507/2022 ON THE FILE OF ADDL.MUNSIFF-II, THIRUVANANTHAPURAM ```