Bombay High Court
The Estate Investments Company Pvt. Ltd vs Smt. Madhu Harshad Doshi And Ors on 16 January, 2017
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1169 OF 2013
WITH
CIVIL APPLICATION NO.605 OF 2015
WITH
CIVIL APPLICATION NO.1098 OF 2016
The Estate Investments Company Pvt. Ltd. )
body corporate constituted under the )
Companies Act, 1913, having its registered )
office and principal place of business at 137, )
Saksaria Chambers, Nagindas Master Road, )
(Old Medows St) Mumbai 400 001 ) .. Appellant
(Orig. Defendant no.1)
Versus
1. M/s.New Haven Pvt.Ltd., having its office)
at Shanti Nagar, Shanti Vihar, Mira Road, )
Taluka and District Thane, through its )
Director Shri Dilesh Chandrakant Shah )
2. Smt. Madhu Harshad Doshi )
Age:Adult, Occ: Business having address at)
103/104, Rajashree Apartment, Eksar Road,)
Borivli (West), Mumbai 400 092 through her)
constituted attorney, Shri Dilesh Chandrakant)
Shah, Age: Adult, Occ.: Business having )
office at Shanti Nagar, Tal. & Dist. Thane. )
3. The State of Maharashtra, through )
the Collector, Thane )
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4. The Collector, Thane through office at )
Collectorate Office, Thane, Court Naka, Adv.)
Prabhakar Hegde Marg, Thane (W)-400 0601) .. Respondents
(orig.Plffs.& Deft.Nos.3 & 4)
---
Mr.Navroz Seervai, Senior Advocate a/w Mr.Sharan Jagtiani a/w
Ms.Sheetal Shah i/by M/s.Mehta & Girdharlal for the appellant.
Mr.Y.S.Jahagirdar, Senior Advocate a/w Mr.P.S.Dani, Senior Advocate
a/w Mr.K.S.Dewal i/by Mr.J.M. Joshi for the respondent no.1 and 2.
Mr.M.G. Patil, AGP for the respondent nos.3 & 4.
---
ALONG WITH
APPEAL FROM ORDER NO.1122 OF 2013
WITH
CIVIL APPLICATION NO.1095 OF 2016
ALONG WITH
APPEAL FROM ORDER NO.1171 OF 2013
WITH
CIVIL APPLICATION NO.1094 OF 2016
ALONG WITH
APPEAL FROM ORDER NO.1170 OF 2013
WITH
CIVIL APPLICATION NO.1097 OF 2016
The Estate Investments Company Pvt. Ltd. )
body corporate constituted under the )
Companies Act, 1913, having its registered )
office and principal place of business at 137, )
Saksaria Chambers, Nagindas Master Road, )
(Old Medows St) Mumbai 400 001 ) .. Appellant
(Orig. Defendant no.1)
Versus
1. Smt. Madhu Harshad Doshi )
Age:Adult, Occ: Business having address at )
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103/104, Rajashree Apartment, Eksar Road,)
Borivli (West), Mumbai 400 092 through her)
constituted attorney, Shri Dilesh Chandrakant)
Shah, Age: Adult, Occ.: Business having )
office at Shanti Nagar, Tal. & Dist. Thane. )
2. The State of Maharashtra, through )
the Collector, Thane )
3. The Collector, Thane through office at )
Collectorate Office, Thane, Court Naka, Adv.)
Prabhakar Hegde Marg, Thane (W)-400 0601)
ig .. Respondents
(orig. Plff.& Deft.Nos.2 &3)
---
Mr.Navroz Seervai, Senior Advocate a/w Mr.Sharan Jagtiani a/w
Ms.Sheetal Shah i/by M/s.Mehta & Girdharlal for the appellant.
Mr.Y.S.Jahagirdar, Senior Advocate a/w Mr.P.S.Dani, Senior Advocate
a/w Mr.K.S.Dewal i/by Mr.J.M. Joshi for the respondent no.1.
Mr.M.G. Patil, AGP for the respondent nos.2 & 3.
---
CORAM : R.D. DHANUKA, J.
RESERVED ON : 20th December 2016
PRONOUNCED ON : 16th January 2017
Judgment :-
. By consent of the parties, the aforesaid appeals were heard
finally at the admission stage only on the preliminary issue raised by the appellant (original defendant no.1) under Section 9A of the Code of Civil Procedure, 1908 (for short "CPC") before the learned trial Judge as to whether he was bound to decide the application filed under Section 9A of CPC before disposing of the application (Exhibit-5) filed by the respondent no.1 (original plaintiff no.1). The issue of jurisdiction is ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:22 ::: ppn 4 arbp-1169.13 wt ors.(j).doc argued in Appeal from Order Nos.1169 of 2013, 1122 of 2013, 1171 of 2013 and 1170 of 2013.
2. Learned senior counsel appearing for the contesting parties have addressed this Court only on the issue of jurisdiction at this stage and not on merits of the impugned order dated 16 th May 2013 passed by the learned trial Judge in the aforesaid four appeals from order.
3. Since the facts in the aforesaid four appeals are identical, the case of the parties in Appeal from Order No.1169 of 2013 is considered for the purpose of deciding the aforesaid issue.
4. On or about 7th November 1870, the then State of Bombay executed a Lease in favour of Ramchandra Laxmanji for various lands for a period of 999 years with effect from 1 st August 1863. It was the case of the appellant that by two Deeds of Assignment dated 22 nd March 1945 and 5th April 1945, the appellant became lessee in respect of various lands including the suit lands. It was the case of the appellant that the lease in favour of the appellant was confirmed by a notification dated 19th December 1949 as the land holder of the suit land under the said lease dated 7th November 1870. On 19th December 1949, the Government of Maharashtra assumed the management of estate of the appellant from the appellant. Some times in the year 1957, the notification came to be issued by the then Government of Bombay under the provisions of Section 61 of the Bombay Tenancy and Agricultural Lands Act, 1948 purporting to relinquish management the said lands in favour of the appellant. Some times in the year 1952, the Salsette Estates ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:22 ::: ppn 5 arbp-1169.13 wt ors.(j).doc (Land Revenue Exemption Abolition) Act, 1951 (for short "the Salsette Act") came into effect.
5. On or about 10th March 1971, the appellant filed a suit (123 of 1955) against the Government for accounts. On 14 th September 1959, a decree came to be passed in favour of the appellant and against the Government for a sum of Rs.26,091/-. The appellant filed an appeal (290 of 1959) which was partly allowed on 4 th May 1962 and the decreetal amount was enhanced to Rs.33,296.10 with interest. It was the case of the appellant that in the second appeal (641 of 1964), this Court clearly stated that the relation between the Grantee and the Tenant was not affected by Section 3 of the Salsette Act and further held that the tenants holding on behalf of Grantee could not become occupants and thus the Government was liable to render accounts to the estate holder.
6. The appellant had filed another civil suit (272 of 1963) on 4th September 1976 in Thane for accounts against the Government. A decree came to be passed in that suit in favour of the appellant thereby directing the Government to make payment to the appellant. A civil appeal (95 of 1977) filed by the Government came to be dismissed on 13th February 1998. On 27th January 1988, the second appeal filed by the Government came to be dismissed by this Court holding that all that the Salsette Act had done was to change the legal status of the transferres from Ramchandra Laxmanji from one of a sanad holder to an owner. Special Leave Petition filed by the Government against the said order dated 27th January 1988 came to be dismissed on 3rd November 1988.
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7. The appellant thereafter filed third suit against the Government for accounts on 22nd August 2008 which was decreed in favour of the appellant by the learned Civil Judge, Senior Division.
8. On 3rd April 2006, the writ petition (5118 of 1995) filed by the appellant came to be disposed of by which the Collector was ordered to send a notice to the appellant as and when the application of N.A. permission was received in respect of the land if the appellant was shown as a superior holder. A review petition (82 of 2006) filed against the said order dated 3rd April 2006 came to be dismissed on 30 th June 2006. It is the case of the appellant that the name of the appellant was shown as occupant (Kabjedar) in the record of rights in respect of the suit land as a superior holder and the names of the cultivators were shown below the name of the appellant as inferior holders.
9. In the year 1971, by an ex parte order, the name of the appellant was removed from other rights column altogether. By an order dated 28th January 1989 passed by this Court in the second appeal filed by the appellant, the name of the appellant was restored back to the other rights column until new further entries were effected for implementing the provisions of Section 3 of the Salsette Act.
10. The Collector, Thane thereafter initiated the proceedings under Section 3 of the Salsette Act by issuing notice to the appellant. The Collector, Thane came to the conclusion that the appellant was superior holder/land holder. This Court dismissed 13 writ petitions by a reasoned order and judgment on 14th July 2011 and 15th July 2011 including the writ petition filed by the respondents. 13 Letters Patent ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:22 ::: ppn 7 arbp-1169.13 wt ors.(j).doc Appeals filed by the respondents against the said order and judgment dated 14th July 2011 and 15th July 2011 delivered by the learned Single Judge of this Court also came to be dismissed by an order dated 11 th October 2011 and 12th October 2011. Special Leave petition challenging the orders passed by this Court in Letters Patent Appeals also came to be dismissed on 28th November 2011 and 8th December 2011. In the said orders, Supreme Court clarified that the civil Court shall be at liberty to decide the legality, correctness and propriety of the order passed by the Collector. It is clarified that there was no dispute that by virtue of the fact that the name of the appellant herein was being recorded as a superior holder, it would not be automatically entitled to claim possession, except in accordance with law. It was further clarified that civil Court would decide the matter in accordance with law without being influenced by any of the observations made in any of the orders.
11. It is the case of the respondent no.1 that pursuant to the said order passed by the Supreme Court, the respondent nos.1 and 2 filed a suit (Special Civil Suit No.149 of 2012) on 24 th February 2012 in the Court of the learned Civil Judge, Senior Division, Thane at Thane against the appellant herein, State of Maharashtra and the Collector, Thane inter alia praying for a declaration that they were in possession of and/or were the permanent holders or occupants of the suit property and had right to deal with and/or hold and/or to develop and/or to use and enjoy the suit property in any manner without recourse to the appellant. The respondent nos.1 and 2 also applied for a declaration that the original defendant no.1 (the appellant herein) was neither superior holder nor the land holder/Kabjedar/occupant nor the owner nor had any right in respect of the suit property.
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12. The respondent nos.1 and 2 also applied for order, decree and declaration that the order passed by the Collector on 5 th September 2008 was null and void, illegal, arbitrary, capricious and was not binding upon the respondent nos.1 and 2 and/or was not enforceable or could not be implemented as against the suit property. The respondent nos.1 and 2 also applied for an order, decree and declaration that the assignment of Deed of Indenture dated 7th November 1870 under the alleged deeds dated 22nd March 1945 and 5th April 1945 in favour of the appellant was null and void ab initio. The respondent nos.1 and 2 also applied for permanent injunction against the defendants in respect of the suit property.
13. The respondent nos.1 and 2 (original plaintiffs) filed an application (Exhibit-5) in the said Special Civil Suit on 24 th February 2012 inter alia praying for various interim reliefs against some of the defendants including the appellant. On 4 th May 2012, the appellant (original defendant no.1) filed a written statement and counter claim in the said suit. The appellant raised an issue of jurisdiction of the trial Court to entertain, try and dispose of the said suit filed by the respondent nos.1 and 2 under Section 158 of the Maharashtra Land Revenue Code, 1966. The appellant also raised various other issues including the issue of limitation. The appellant denied the claim and also opposed the suit on merits.
14. In the counter claim, it was stated that the appellant shall refer to and rely upon the contents of the foregoing written statement as its pleadings for the counter claim and adopts the written statement as part of the said counter claim. In the said counter claim, the appellant ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:22 ::: ppn 9 arbp-1169.13 wt ors.(j).doc prayed for a declaration that the N.A. Permission, if any, obtained by the respondent nos.1 and 2 or their predecessors in title with respect to the suit property from the Collector was illegal and null and void ab initio and non-est and applied for perpetual injunction and for an order and decree to dismantle and remove the construction, if any, carried out of any building or structure on the suit property and to reinstate the suit property to its original condition and for other reliefs. In the said counter claim, the appellant also filed an application (Exhibit-27) for interim relief in Special Civil Suit Nos.149 of 2012 and 147 of 2012 and an application (Exhibit-29) in Special Civil Suit Nos.146 of 2012 and 148 of 2012.
15. On 12th June 2012, the appellant filed an application under Section 9A of the CPC in the said Special Civil Suit No.147 of 2012 contending that the issue regarding status of the respondent nos.1 and 2 as the permanent holders or the occupants of the suit property is exclusively within the jurisdiction of the authorities constituted under the Maharashtra Land Revenue Code, 1966 and the Civil Court cannot deal with the said issue. It was contended that the learned Joint Civil Judge, Senior Division, Thane had no jurisdiction to entertain, try and dispose of the said suit and the said issue of jurisdiction thus be decided by the learned Judge as a preliminary issue at the time of hearing of the application for interim injunction filed by the respondent nos.1 and 2 and the appellant in the said suit. A copy of the said application was served on the advocate of the respondent nos.1 and 2 on 12 th June 2012. On 22nd June 2012, the respondent nos.1 and 2 (original plaintiffs) filed their affidavit opposing the application for interim injunction filed by ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:22 ::: ppn 10 arbp-1169.13 wt ors.(j).doc the appellant. On 26th June 2012, the learned Joint Civil Judge, Senior Division, Thane passed the following order on the said application (Exhibit-34) filed by the appellant under Section 9A of the CPC:-
"Since this application is not pressed, for the time being, it stands filed."
16. Both the parties thereafter proceeded with their respective arguments in the application for interim injunction filed by both the parties in the claim as well as the counter claim respectively. The appellant neither challenged the said order dated 26 th June 2012 nor revived the said application (Exhibit-34) at any point of time.
17. The learned trial Judge passed an order on 16 th May 2013 (below Exhibit-5) thereby allowing the said application (Exhibit-5) filed by the respondent nos.1 and 2 and granting injunction against the appellant and the other two defendants from implementing the order dated 5th September 2008 passed by the Collector in respect of the suit property in any manner till disposal of the suit and also disturbing the appellant and other two appellants from peaceful possession and enjoyment of the suit property by the respondent nos.1 and 2 in any manner. The learned trial Judge also rejected the application of the appellant (Exhibit-29) for interim reliefs by the said order dated 16 th May 2013.
18. Being aggrieved by the said order dated 16th May 2013 passed by the learned trial Judge in the said application (Exhibit-5) in Special Civil Suit No.148 of 2012 and other three suits and in the ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:22 ::: ppn 11 arbp-1169.13 wt ors.(j).doc application filed by the appellant for interim relief in its counter claim, the appellant has preferred the aforesaid four appeals. These four appeals are pending for admission before this Court since last three years. No ad-interim relief is granted by this Court in these appeals till date.
19. On or about 11th January 2016, the appellant filed Civil Application Nos.154 of 2016 in Appeal from Order No.1169 of 2013 inter alia praying for amendment of the grounds of appeal in the appeal memo. Similar applications are filed by the appellant in other connected appeals from order. By an order dated 5 th October 2016, this Court disposed of those eight civil applications by allowing the amendment as prayed, however, subject to the contention of the respondent no.1 as raised being kept open. It was made clear that this Court would consider whether such grounds which are allowed to be added in the appeals from order can be allowed to be raised while urging other grounds in the appeal memo or not. In the affidavit-in-reply to the said application, amendment was opposed on various grounds including the ground that the appellant had voluntarily not pressed the application under Section 9A of the CPC and the learned trial Judge thus had rightly passed an order on the said application. It was also contended that the civil suit was maintainable for seeking declaration that the applicant was neither superior holder nor land holder/Kabjedar/occupant nor the owner nor had any right in respect of the suit property. It was also contended that the appellant had not impugned the order already passed by the learned trial Judge thereby filing the application under Section 9A of the CPC in view of the appellant not having pressed the said issue. Pursuant to the said order passed by this Court, the appellant had carried out ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:22 ::: ppn 12 arbp-1169.13 wt ors.(j).doc amendment in the appeal memo and added ground (ee-1) contending that the impugned order dated 16th May 2013 came to be passed without framing any preliminary issue and determination thereof at the threshold before application for interim relief was disposed of. No other grounds were added to the grounds of appeal.
20. On 13th June 2016, the learned Civil Judge, Senior Division, Thane framed various issues including the issue of jurisdiction under Order XIV Rule 2 of the CPC.
21. On 16th October 2016, the appellant (original defendant no.1) made an application for recast of the issues framed by the learned trial Judge on 13th June 2016. In the said application, it was mentioned that the matter was now kept on 14th October 2016 for filing list of witnesses of the respondent nos.1 and 2. It was contended that recasting of the issue was necessary before the suit was proceeded further. The appellant suggested twelve issues including the issue of limitation and jurisdiction of the learned trial Judge to entertain the suit in its present form in view of Section 158 of the Maharashtra Land Revenue Code, 1966.
22. On 10th October 2016, the learned senior counsel for the respondent no.1 made a statement before this Court that till the next date, the respondent no.1 will not proceed with pending suits and counter claims therein before the learned trial Judge. By the said order, it was made clear that the learned trial Judge could proceed with the application filed by the respondent nos.1 and 2 herein for setting aside the order of the learned trial Judge for not taking written statement in ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 13 arbp-1169.13 wt ors.(j).doc the counter claim on record which was proposed to be held on 14 th October 2016. The said ad-interim order was continued by an order dated 30th November 2016 till the next date and the matter was adjourned to 19th December 2016.
23. Mr.Seervai, learned senior counsel appearing for the appellant invited my attention to some of the averments made in the plaint and prayers therein, some of the averments made in the written statement and counter claim and would submit that the appellant had at the threshold raised an issue of subject matter jurisdiction in the written statement itself and also the issue of limitation which also touches the issue of jurisdiction. He submits that the civil Court has no power and jurisdiction to grant any of the prayers in the plaint and each of the prayers is beyond the jurisdiction of the learned trial Judge and more particularly in view of Section 158 of the Maharashtra Land Revenue Code, 1966. It is submitted by the learned senior counsel that in addition to the said issue of jurisdiction raised by the appellant (original defendant no.1), the appellant had filed a separate application raising an issue of jurisdiction under Section 9A of the CPC immediately. The said application under Section 9A filed by the appellant was opposed by the respondent nos.1 and 2 by filing affidavit-in-reply.
24. It is submitted that in the counter claim filed by the appellant in the said suit, the appellant had adopted and reiterated the issue and contention raised by the appellant in the written statement filed in the said suit as if part of the counter claim. He submits that the said counter claim thus filed by the appellant was without prejudice to the rights and contentions of the appellant that the learned trial Judge had ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 14 arbp-1169.13 wt ors.(j).doc no subject matter jurisdiction to entertain the prayers made by the respondent nos.1 and 2. He submits that the learned trial Judge did not decide the said issue of jurisdiction raised by the appellant under Section 9A of the CPC and disposed of the application (Exhibits-5 and 29) filed by the respondent nos.1 and 2 finally.
25. It is submitted by the learned senior counsel that even if the appellant had not pressed the issue raised under Section 9A of the CPC, during pendency of the applications (Exhibits-5 and 29) which were filed by the parties, no action of alleged consent on the part of the appellant could confer jurisdiction on the learned trial Judge to dispose of the notice of motion without first deciding the issue of jurisdiction raised by the appellant under Section 9A of the CPC. In support of this submission, learned senior counsel placed reliance on the judgment of the Supreme Court in the case of Dhirendra Nath Gorai and Ors.
Vs.Sudhir Chandra Ghosh & Ors., reported in AIR 1964 SC 1300 and in particular paragraph 7 thereof. He submits that even if the appellant had not pressed the said application under Section 9A of the CPC, for the time being, the appellant could not have by waiver conferred jurisdiction on the learned trial Judge which the learned trial Judge did not have.
26. Learned senior counsel for the appellant placed reliance on the judgment delivered by the Division Bench of this Court on 19 th July 2012 in Appeal No.817 of 2010 in the case of Ferani Hotels Private Limited Vs.Nusli Neville Wadia and Ors. and in Appeal No.806 of 2010 in the case of Nusli Neville Wadia Vs. Ferani Hotels Private ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 15 arbp-1169.13 wt ors.(j).doc Limited & Ors. and more particularly on paragraphs 10, 11 and 16 in support of the submission that provisions of Section 9A of the CPC are mandatory and once the appellant herein had raised an issue under Section 9A of the CPC, the learned trial Judge was bound to proceed and to determine at the hearing of the said application under Section 9A the issue as to jurisdiction as a preliminary issue before granting or setting aside the order granting interim relief. Such an application could not be adjourned to the hearing of the suit. He submits that the learned trial Judge thus ought to have disposed of the preliminary issue of jurisdiction raised by the appellant first and then could have taken up the final disposal of the applications (Exhibits-5 and 29) for interim relief.
27. Learned senior counsel for the appellant placed reliance on the judgment of the Supreme Court in the case of Foreshore Co- operative Housing Society Limited Vs.Praveen D.Desai (dead) through LRs. and Ors., reported in AIR 2015 SC 2006 and in particular paragraphs 56 to 58 in support of the submission that Section 9A provides a self-contained scheme with a non-obstante clause which mandates the Court follow the provision and is a complete departure from the provisions contained in Order XIV Rule 2 of the CPC. Learned senior counsel for the appellant also placed reliance on the judgment delivered by this Court in the case of Immigrants Ideal Producers Co-operative Society Ltd. & Anr.Vs. Jahanara Moiz Dalal, reported in 2004 (1) Mh.L.J. 910 and in particular paragraphs 2, 8, 10, 13 and 14 in support of the submission that the learned trial Judge ought to have disposed of the preliminary objection of jurisdiction under Section 9A of the CPC before disposing of the application (Exhibit-5) for interim relief filed by ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 16 arbp-1169.13 wt ors.(j).doc the respondent nos.1 and 2 and the application (Exhibit-29) filed by the appellant.
28. Mr.Seervai, learned senior counsel appearing for the appellant strongly placed reliance on the judgment of the Division Bench of this Court in the case of Mukund Ltd. Vs.Mumbai International Airport & Ors., reported in 2011 (2) ALL MR 510 and in particular paragraphs 4 to 15 and would submit that once the objection of jurisdiction under Section 9A of the CPC is raised during the pendency of the application for interim relief, even if it is abandoned or not pressed or withdrawn, it is the duty of the trial Court to dispose of the said objection of jurisdiction raised under Section 9A before disposing of the application (Exhibit-5) for interim relief.
29. Mr.Jahagirdar, learned senior counsel appearing for the respondent nos.1 and 2 (original plaintiffs), on the other hand, submits that the Court while deciding the application under Section 9A of the CPC has to first consider as to at what stage such an application under Section 9A is filed by the defendants. He submits that the suit was admittedly filed by the respondent nos.1 and 2 for various reliefs on 12th June 2012. He submits that though the appellant had raised an issue of jurisdiction before the learned trial Judge in the written statement filed by the appellant, the appellant did not press the said issue before the learned trial Judge. The learned trial Judge disposed of the said application on 26th June 2012 filed by the appellant under Section 9A of the CPC by recording that "since this application is not pressed, for the time being, it stands filed."
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30. It is submitted by the learned senior counsel that the said order dated 26th June 2012 passed by the learned trial Judge was admittedly passed before finally disposing of the applications (Exhibits-5 and 29). He submits that the appellant did not impugn the said order dated 26th June 2012 till date. He submits that the learned trial Judge thus rightly disposed of the applications (Exhibits-5 and 29) filed by the respondent nos.1 and 2 and the appellant respectively. He submits that there was thus compliance of the provisions of Section 9A of the CPC by the learned trial Judge before disposing of the said two applications.
31. Learned senior counsel for the respondent nos.1 and 2 invited my attention to the averments made by the appellant in the civil applications inter alia praying for amendments to the appeals from order and the affidavit-in-reply filed by the respondent no.1 opposing those amendments and also to the order passed by this Court allowing such amendments. He submits that all contentions raised by the respondent no.1 while allowing the said civil applications for amendments are kept open including the issue as to whether grounds proposed to be amended in the appeals from order itself could be allowed to be raised or not by the appellant. He also invited my attention to the additional grounds raised by the appellant pursuant to the liberty granted by this Court and more particularly ground (ee-1).
32. It is submitted that even in the said additional ground, the appellant has not impugned the order dated 26 th June 2012. He submits that even otherwise, the said order dated 26th June 2012 passed by the learned trial Judge thereby disposing of the application filed by the ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 18 arbp-1169.13 wt ors.(j).doc appellant under Section 9A of the CPC is not appealable under Order XLIII Rule 1 of the CPC.
33. It is submitted that though the appellant had filed these four appeals as far back as on 5 th September 2013, no ground under Section 9A of the CPC came to be raised by the appellant in the grounds of appeal. Though an opportunity was granted by this Court to carry out amendments to the appeals from order, the order dated 26th June 2012 is not impugned nor any separate proceeding is filed for impugning the said order dated 26th June 2012.ig
34. Learned senior counsel for the respondent no.1 invited my attention to the order dated 8th December 2011 passed by the Supreme Court while disposing of the Special Leave to Appeal filed by the respondent no.1 making it clear that the Civil Court shall be at liberty to decide the legality, correctness and propriety of the order passed by the Collector and there was no dispute that by virtue of fact that the name of the appellant herein was being recorded as a superior holder, it would not be automatically entitled to claim possession, except in accordance with law. He submits that in view of the liberty granted by the Supreme Court to the Civil Court to decide the legality, correctness and propriety of the order passed by the Collector, the suit filed by the respondent no.1 for seeking various declarations including the challenge to the order passed by the Collector was rightly filed.
35. It is submitted by the learned senior counsel that no interim order was granted by this Court in these four appeals during the period between 2013 and 2016. He submits that the learned trial Judge has ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 19 arbp-1169.13 wt ors.(j).doc admittedly already framed issues under Order XIV Rule 2 of the CPC as far back as on 13th June 2016. He invited my attention to the application dated 6th October 2016 filed by the appellant herein requesting the learned trial Judge to recast the issue already framed by the learned trial Judge on 13th June 2016. He submits that the appellant itself has suggested twelve issues which includes the issue of limitation and also the issue of jurisdiction of the learned trial Judge to entertain the suit in its present form in view of Section 158 of the Maharashtra Land Revenue Code, 1966.
36. It is submitted that the appellant thus cannot at this stage urge before this Court that the impugned order passed by the learned trial Judge disposing of the applications (Exhibits-5 and 29) shall be set aside and the issue of jurisdiction under Section 9A of the CPC shall be decided at stage. He submits that there is no dispute that the issue of jurisdiction of the learned trial Judge to entertain, try and dispose of the suit on the ground of subject matter of the plaint and on the ground of limitation is already framed by the learned trial Judge.
37. It is submitted by the learned senior counsel that the respondent no.1 did not raise any issue of jurisdiction to entertain, try and dispose of the counter claim filed by the appellant herein or to entertain the application (Exhibit-29) for interim relief filed by the appellant on the ground of the learned trial Judge not having jurisdiction to entertain, try and dispose of the counter claim. He submits that the suit is ready for recording evidence. The appellant has filed these appeals and are pursuing these appeals on the issue of jurisdiction under Section 9A of the CPC at this stage by multiplying the proceedings.
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38. Learned senior counsel for the respondent no.1
distinguishes the judgment of the Division Bench of this Court in the case of Mukund Ltd. (supra) and other judgments relied upon by Mr.Seervai, learned senior counsel for the appellant on the ground that the facts before the Courts in those cases and in this case are totally different. In this case, the appellant had pursued their counter claim and also the application for interim relief and did not challenge the order passed by the learned trial Judge disposing of the application under Section 9A of the CPC till date. He submits that the appellant never revived the said application under Section 9A of the CPC at any stage till today. It is submitted that the issue under Order XIV Rule 2 of the CPC including the issue of jurisdiction are already framed and thus the issue of jurisdiction under Section 9A cannot be applied at this stage. He submits that at this stage, the clock cannot be put back and if such submission of the appellant is allowed at this stage, it will cause greater hardship to the respondent nos.1 and 2 and cause further delay in the suit which is ready for recording evidence. He submits that the purpose of Section 9A is defeated in this case in view of conduct of the appellant and in view of subsequent events. He submits that the issue of Section 9A cannot be allowed to be raised at this stage which was required to be raised at the stage. Reliance is also placed on an unreported order of this Court delivered on 1st July 2015 in the case of Phoenix Mills Ltd. Vs. Amar Tea Pvt. Ltd. in Writ Petition No.10207 of 2013.
39. Mr.Jahagirdar, learned senior counsel for the respondent no.1 placed reliance on the judgment of the Division Bench of this Court in the case of Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. Vs. ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 21 arbp-1169.13 wt ors.(j).doc Jagruti Industries and Anr., reported in 2008 (4) Mh.L.J. 471 and in particular paragraphs 4, 6, 7, 9, 10, 14, 34 and 36 thereof. It is submitted that this judgment of the Division Bench of this Court was not brought to the notice of the Division Bench of this Court in the case of Mukund Ltd. (Supra).
40. My attention is also invited to the Roznama in Special Civil Suit No.148 of 2012 in support of his submission that the appellant has proceeded with the application (Exhibit-5) filed by the respondent nos.1 and 2 and also the application (Exhibit-29) filed by the appellant on its own merits and having lost in those two applications has filed these appeals and that also without raising any ground of jurisdiction in these appeals.
41. Mr.Seervai, learned senior counsel for the appellant in rejoinder submits that the appellant had raised an issue of jurisdiction in the written statement and counter claim and had also filed a separate application under Section 9A of the CPC though no such separate application was required to be filed. He submits that issue of jurisdiction of the Court could be raised even orally. It is submitted that once an objection of jurisdiction was raised by the defendants before the learned trial Judge disposing of the application (Exhibit-5) or the application (Exhibit-29), it was the duty of the Court to frame and dispose of that issue before disposing of the applications for interim relief finally. He submits that nothing else was required to be done by the defendants after raising such issue of jurisdiction. He once again led emphasis on the view taken by the Division Bench of this Court in the case of ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 22 arbp-1169.13 wt ors.(j).doc Mukund Ltd. (supra) in support of his submission that even if the said application under Section 9A of the CPC was not pressed by the appellant as stated in the said order dated 26th June 2012, it would not confer jurisdiction on the learned trial Judge which he did not have. He submits that the learned trial Judge has committed misconduct by not deciding the issue of jurisdiction before disposing of the applications (Exhibits-5 and 29). Learned senior counsel distinguishes the judgment of the Division Bench of this Court in the case of Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd.(supra). He submits that the said judgment of the Division Bench of this Court would assist the case of the appellant and not the respondent nos.1 and 2 (original plaintiffs).
42. In so far as the submission of the learned senior counsel for the respondent no.1 that the appellant has not impugned the order dated 26th June 2012 in the appeal memo is concerned, learned senior counsel invited my attention to ground (ee-1) which is inserted in the grounds of appeal in view of liberty granted by this Court and also to the impugned order dated 16th May 2013 which was admittedly impugned by the appellant which refers to the said order 26th June 2012. He submits that the said order dated 26th June 2012 is a part of the impugned order dated 16th May 2013 and thus both the orders are impugned by the appellant.
43. In so far as the counter claim filed by the appellant is concerned, it is submitted by the learned senior counsel that the counter claim is also in the nature of the separate suit and was filed without prejudice to the rights and contentions of the appellant that the civil Court had no jurisdiction to entertain the suit filed by the respondent ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 23 arbp-1169.13 wt ors.(j).doc no.1 and another and thus that would not confer jurisdiction on the learned trial Judge.
REASONS AND CONCLUSIONS :-
44. There is no dispute that against the order of the Collector holding that the appellant herein was the superior holder in respect of the suit land on 5th September 2008 and against various orders passed in the proceedings arising out of the said order, the respondent no.1 (original plaintiff no.1) had filed Special Leave to Appeal in the Supreme Court of India.
45. A perusal of the orders dated 28th November 2011 and 8th December 2011 clearly indicates that Supreme Court while disposing of the said Special Leave Petition had clarified that the Civil Court shall be at liberty to decide the legality, correctness and propriety of the order passed by the Collector in accordance with law without being influenced by any of the observations made in any of the orders. It is also recorded that there was no dispute that by virtue of the fact that the name of the appellant herein was being recorded as a superior holder, it would not be automatically entitled to claim possession, except in accordance with law.
46. A perusal of the plaint filed by the respondent nos.1 and 2 filed before the learned trial Judge after disposal of the special civil suit filed by them indicates that it was the case of the respondent nos.1 and 2 that the suit was filed pursuant to the liberty granted by the Supreme Court thereby granting liberty to the Civil Court to decide the legality, correctness and propriety of the order dated 5 th September 2008 passed ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 24 arbp-1169.13 wt ors.(j).doc by the Collector. The averments made in the plaint indicates that the respondent nos.1 and 2 have applied for declaration that they are in possession of and/or are the permanent holders or occupants of the suit property and has a right to deal with and/or hold and/or to develop and/or to use and enjoy the suit property in any manner without recourse to the appellant (original defendant no.1). The respondent nos.1 and 2 have also applied for a declaration that the original defendant no.1 (the appellant herein) was neither superior holder nor the land holder/ Kabjedar/occupant nor the owner nor has any right in respect of the suit property.
47. A perusal of the written statement filed by the appellant (original defendant no.1) indicates that the appellant has raised an issue of jurisdiction of the learned Joint Civil Judge, Senior Division, Thane to entertain, try and dispose of the suit under Section 158 of the Maharashtra Land Revenue Code, 1966 and has also raised an issue of limitation. The appellant has also raised various other issues on merits of the claim made by the respondent nos.1 and 2. In the counter claim filed by the appellant, the appellant has reiterated the contentions and issues raised by the appellant in the written statement in the Civil Suit No.148 of 2012. It is also not in dispute that the appellant had filed a separate application on 12 th June 2012 under Section 9A of the CPC raising an issue of jurisdiction of the trial Court and had prayed for deciding the said issue as a preliminary issue under Section 9A of the CPC. It is also not in dispute that the appellant had also filed a separate application (Exhibit-29) for interim relief against the said counter claim filed by the appellant.
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48. A perusal of the order dated 16th May 2013 passed by the learned trial Judge indicates that the learned trial Judge has recorded a statement in the said order that the said application (Exhibit-34) filed under Section 9A of the CPC was not pressed, for the time being, the same stood filed. A perusal of the record indicates that the appellant never applied for revival of the said application at the subsequent stage though the application (Exhibit-5) filed by the respondent nos.1 and 2 and the application (Exhibit-29) filed by the appellant were argued by both the parties on several dates before the learned arbitrator.
49. A perusal of the grounds raised in the appeals from order filed by the appellant indicates that there was no ground of challenge to the said order dated 26th June 2012. The appellant had belatedly filed an application for seeking amendment to the ground of challenge in the year 2016. The said application was opposed by the respondent nos.1 and 2 on various grounds. This Court while allowing the said application for amendment made it clear that though the amendment was being permitted whether such grounds could be allowed to be raised by the appellant or not itself was kept open and would be considered by this Court at the stage of arguments of the appeals from order.
50. In my view, the learned senior counsel for the respondent no.1 is right in his submission that no such order recording the statement of the appellant not pressing an application under Section 9A of the CPC, for the time being and disposing of the said application is appelable under Order XLIII Rule 1 of the CPC. Be that as it may, a perusal of the additional ground (ee-1) indicates that the appellant has raised a ground ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 26 arbp-1169.13 wt ors.(j).doc that the impugned order dated 16th May 2013 passed by the learned trial Judge without framing any preliminary issue and determination thereof at the threshold and before deciding the application for interim relief.
Even by the said additional ground (ee-1), the appellant has not challenged the said order dated 26th June 2012 passed by the learned trial Judge.
51. There is no dispute that during the pendency of these appeals from 2013 till 10th October 2016, there was no ad-interim relief in these appeals. On 10th October 2016, learned senior counsel for the respondent no.1 had made a statement before this Court that till the next date, the respondent no.1 would not proceed with the pending suits and counter claim therein before the learned trial Judge between the parties. There was no other ad-interim injunction granted by this Court in these appeals in favour of the appellant.
52. There is no dispute that during the pendency of these appeals, the learned trial Judge has already framed several issues on 13th June 2016 under Order XIV Rule 2 of the CPC. On 6 th October 2016, the appellant itself had made an application for recast of the issue framed by the learned trial Judge on 13th June 2016 and has suggested twelve issues including the issue of limitation and also the issue of jurisdiction of the learned trial Judge to entertain, try and dispose of the suit in its present form in view of Section 158 of the Maharashtra Land Revenue Code, 1966.
53. In these circumstances, with these facts in hand, this Court has to consider (i) whether the issue of jurisdiction raised under Section ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 27 arbp-1169.13 wt ors.(j).doc 9A of the CPC in the written statement and by making a separate application under Section 9A could be waived by the appellant (ii) whether the appellant could raise an issue of jurisdiction in respect of the reliefs claimed by the respondent nos.1 and 2 though the appellant itself had filed a counter claim in the said suit and had filed an application for interim reliefs therein (iii) what is the effect of the appellant not challenging the order dated 26 th June 2012 passed by the learned trial Judge disposing of the application under Section 9A of the CPC filed by the appellant even till today (iv) what is the effect of the learned trial Judge already having framed the issues under Order XIV Rule 2 of the CPC including the issue of jurisdiction and the appellant itself making an application for recast of the issues already framed and suggesting twelve issues at this stage and (v) whether the same would preclude the appellant from pursuing the objection of jurisdiction under Section 9A of the CPC now at this stage.
54. Supreme Court in the case of Dhirendra Nath Gorai and Ors.(supra) has held that when the Court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. It is held that a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it.
55. This Court in the case of Immigrants Ideal Producers Co- operative Society Ltd. & Anr.(supra) had considered the issue that when the jurisdiction of the Court is questioned at the hearing of an application for grant of interim relief or for setting aside the order granting interim ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 28 arbp-1169.13 wt ors.(j).doc relief, the Court must determine the issue of jurisdiction as a preliminary issue and the same shall be determined before granting or setting aside the order granting interim relief. This Court held that there cannot be any general principle that once an objection has been raised under Section 9A, the Court is completely disabled from the exercise of its jurisdiction save and except for deciding that application. This Court held that though the application under Section 9A was pending, an application for amendment could be made and the learned trial Judge was within his authority in granting the application for amendment.
56. The division bench of this Court in the case of Ferani Hotels Private Limited Vs.Nusli Neville Wadia and Ors.(supra) had considered a situation where the learned trial Judge had refused to grant ad-interim relief having regard to the delay on the part of the respondent nos.1 and 2 and had held that a preliminary issue on the ground of limitation would have to be framed under Section 9A. However, since submissions have been heard at length following the filing of affidavits, the entirety of the Motion for interim relief would have to be disposed of.
57. The Division Bench of this Court has held that the object of the State legislature in introducing the provisions of Section 9A was to ensue that when an objection on the ground of jurisdiction is raised, that must be addressed first before an application for interlocutory relief is finally disposed of. It is held that though the object of the legislature was thus to protect against an abuse of process on the part of the respondent nos.1 and 2, experience of trial Judges in this Court would be suggestive of the fact that in certain cases, the provision can be capable of being abused by a defendant. The defendant may conceivably raise ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 29 arbp-1169.13 wt ors.(j).doc an objection as to jurisdiction merely with a view to delay the final disposal of a motion for interim relief, cognizant of the fact that an ad- interim application of the kind which is contemplated under Sub-
Section(2) of Section 9A may not in a given situation result in the grant of wide ranging interim reliefs of the kind that may be sought by the respondent nos.1 and 2.
58. This Court indicated prima facie that the objection as to jurisdiction therein cannot by any means be regarded as being frivolous or lacking in bonafides but the possibility of an abuse by the defendants, which the practical unfolding of the provision of Section 9A indicates, in the experience of the trial Judges of this Court, would emphasize the necessity of allowing a modicum of discretion on the part of the trial Judge while dealing with an application for raising of a preliminary issue under Section 9A. It is held that in order to ensure that Section 9A is not susceptible to grave abuse at the behest of an unscrupulous defendant, it would be within the jurisdiction and authority of the trial Judge to consider as to whether the objection as to jurisdiction arises bonafide or whether it is wholly frivolous. It is clarified by the Division bench that this would contemplate only a minimal enquiry by the Court, since if at that stage a comprehensive adjudication were to be contemplated, that would virtually defeat the provisions of Section 9A.
The provisions of Section 9A therefore would not be inconsistent with the trial Judge exercising a minimal enquiry at the very threshold to satisfy the conscience of the Court that the objection of jurisdiction had been raised bonafide and was not a frivolous or irrelevant exercise meant only to delay or defeat the process of the Court.
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59. Supreme Court in the case of Foreshore Co-operative Housing Society Limited (supra) held that Section of the Maharashtra Amendment Act is mandatory in nature and makes a complete departure from the procedure provided under Order XIV Rule 2 of the CPC. It is held that Section 9A mandates the Court to decide the jurisdiction of the Court before proceeding with the suit and granting interim relief by way of injunction. Section 9A provides a self-contained scheme with a non- obstante clause which mandates the Court to follow the provision. It is held that even though no party has raised objection with regard to jurisdiction of the court, the court has power to determine its own jurisdiction. In other words, in a case where the Court has no jurisdiction; it cannot confer upon it by consent or waiver of the parties.
60. The Division Bench of this Court in the case of Mukund Ltd. (supra) has held that once an objection to the jurisdiction of the Court to entertain a suit was taken by any of the parties to the suit, the Court has to proceed to determine at the hearing of such application the issue as to jurisdiction as a preliminary issue. The determination of the issue cannot be postponed to the trial of the suit and the issue of jurisdiction has to be decided before granting or setting aside an order granting interim relief. It is held that the defendant who raised an objection to the jurisdiction, may well be entitled to abandon the objection but it is not open to a defendant, having raised an objection to the jurisdiction of the Court at the hearing of an application for interim relief, to obviate an adjudication by the Court upon that issue as to preliminary issue by merely postulating that the objection is not pressed for the purpose of the notice of motion. It is held that the objection to ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 31 arbp-1169.13 wt ors.(j).doc jurisdiction under Section 9A is required to be determined not only for the purpose of the motion for the interim relief, but the objection as to jurisdiction goes to the root of the jurisdiction of the Court to entertain the suit itself. Once raised, the objection has to be decided by the Court as a preliminary issue. It is held that the statement of the defendant in the present case that the objection was not being pressed for the purpose of the motion for interim relief was meaningless because the objection relates not to the maintainability of the motion, but to the very jurisdiction of the Court to entertain and try the suit. It is held that provision of Section 9A cannot be utilized as a matter of litigational strategy by the defendant or, for that matter, by the plaintiff depending upon whether an ad-interim order has or has not been passed by the Court under Sub-Section (2) of Section 9A. It is held that the object and underlying purpose of Section 9A is that once an objection is raised, it must be decided as a preliminary issue before an application for interim relief is taken up.
61. Division Bench of this Court in the case of Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. (supra) has held that an objection regarding jurisdiction of the Court under Section 9A of the CPC must be raised at the very initial stage and once such an objection is raised, the law requires that the Court shall proceed to determine the issue in regard to jurisdiction as a preliminary issue. The Court is expected not to shift the determination of the issue of jurisdiction along with the hearing of the suit. It is held that in the proceedings, an objection in regard to the jurisdiction of the Court ought to be taken by the parties who desire to have such issue determined at the initial stage ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 32 arbp-1169.13 wt ors.(j).doc itself. In that event, the Court is expected to deal with the application by framing a preliminary issue of jurisdiction and after granting the parties an opportunity even to lead evidence to decide such an issue at the first instance and not to defer it for determination along with the suit.
62. It is held by the Division bench that once an application for the relief of injunction, appointment of Court receiver, stay etc. has been finally decided by the Court in accordance with law, the rigours of Section 9A would lose their significance and statutory application.
Thereafter, the test applicable would be that of Order XIV Rule 2 of the CPC, where the Court is to form an opinion as to whether along with other issues, the issue relating to the jurisdiction or bar to the maintainability of the suit under any other law should or should not be treated as preliminary issue. It is held that whether it should be decided preferably at the initial stage or along with all issues relating to the merits of the case, is in judicial discretion of the Court. This judicial discretion of the Court is then in no way controlled by the provisions of Section 9A of the CPC as the stage indicated by the legislative mandate under Section 9A is over. Similar power obviously could be exercised by the appellate Court as well. It is held that there is no conflict between the provisions of Section 9A and Order XIV Rule 2 of the CPC. On their correct and harmonious interpretation, the said provisions are intended to achieve the same object i.e. expeditious disposal of the preliminary issue relating to the jurisdiction of the Court.
63. It is held by the Division Bench that the provisions of Section 9A of the CPC are attracted only when the conditions stated in that provisions are satisfied at the time when question of jurisdiction is ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 33 arbp-1169.13 wt ors.(j).doc raised before the Court. Once the stage contemplated under Section 9A of the CPC is over i.e. the application for interim orders has been decided, then those provisions loose their mandatory character and significance. Whereafter the application for framing an issue relating to jurisdiction and its determination in accordance with law would be controlled by the provisions of Order XIV Rule 2 of the CPC. It is further held that if an application for grant or vacation of reliefs specified under Section 9Aof the CPC has already been decided by the Court of competent jurisdiction, in that event the proceedings in the suit would be controlled by the provisions of Order XIV Rule 2 of the CPC. The formation of the opinion and exercise of discretion by the Court cannot be regulated by any strait-jacket formula and essentially it must be left in the discretion of the Court, depending on the facts and circumstances of a given case.
64. By keeping the aforesaid statement of law in mind, this Court will now answer the questions fell for consideration.
65. In so far as the issue as to whether the issue of jurisdiction raised under Section 9A of the CPC could be waived by the defendant no.1 or not is concerned, there is no dispute that the issue of jurisdiction was raised by the appellant in the written statement itself. Division Bench of this Court in the case of Mukund Ltd. (supra) and the other judgments referred to aforesaid has already held that the issue of jurisdiction once raised by the defendants in the written statement cannot be waived. The question, however, that arises for consideration of this Court is whether the issue of jurisdiction raised by the appellant was raised as a matter of ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 34 arbp-1169.13 wt ors.(j).doc litigational strategy by the appellant and whether the appellant was taking a chance by raising such issue and not pressing the said issue till the present appeals were heard or not. Division Bench of this Court in the same judgment has held that the provisions of Section 9A cannot be utilized as a matter of litigational strategy by the defendant or, for that matter, by the plaintiff depending upon whether an ad-interim order has or has not been passed by the Court under Sub-Section (2) of Section 9A. It is held that the object and underlying purpose of Section 9A is that once an objection is raised, it must be decided as a preliminary issue before an application for interim relief is taken up. A perusal of the record indicates that the appellant in this case had not only filed a counter claim in these matters but also filed a separate application for interim relief in the said counter claim and had pursued the said interim relief simultaneously while opposing the application for interim relief filed by the respondent nos.1 and 2.
66. A perusal of the record further indicates that though the learned trial Judge had recorded the statement made by the appellant that since the application was not pressed at this stage, the application stood filed, the appellant never applied for revival of the said application but pursued the arguments on the interim application filed by both the parties. A perusal of the record further indicates that though the appellant had filed these appeals as far back as in the year 2013, no ground was raised in the memorandum of appeal that the learned trial Judge ought to have decided the issue of jurisdiction raised under Section 9A of the CPC as a preliminary issue before disposing of the interim application filed by both the parties.
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67. Though this Court granted an opportunity to the appellant to amend the memorandum of appeal in the year 2016 keeping all the issues open, the appellant did not challenge the order passed by the learned trial Judge as far back as on 16th May 2013 till date by filing appropriate proceedings permissible under the provisions of the Code of Civil Procedure, 1908. In my view, it is thus clear that the plea of jurisdiction raised by the appellant under Section 9A of the CPC was utilized as a matter of litigational strategy by the appellant and it was waiting for outcome of the application for interim relief filed by the respondent nos.1 and 2 as well as by the appellant. In my view, a party who has utilized the provisions of Section 9A of the CPC as and by way of litigational strategy and has taken a chance by prosecuting the application for interim relief and thereafter by not raising any issue of jurisdiction in the memorandum of appeal for last three years cannot be allowed to raise this issue at this stage and more particularly when there is no ad-interim relief granted by this Court in these appeals in last three years and when the trial Court has already framed issues under Order XIV Rule 2 of the CPC.
68. It is not in dispute that the learned trial Judge has already framed various issues including the issue of jurisdiction under Order XIV Rule 2 of the CPC on 13th June 2016. The appellant has not challenged the said order passed by the learned trial Judge. On the contrary, the appellant made an application on 16 th October 2016 before the learned trial Judge for recasting the issues which were framed by him on 13th June 2016. In the said application, the appellant suggested twelve issues. It was clearly mentioned in the said application that the matter was kept on 14th October 2016 for filing list of the witnesses of the ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 36 arbp-1169.13 wt ors.(j).doc respondent nos.1 and 2 (original plaintiffs). It was contended by the appellant in the said application that recast of issues was necessary before the suit was proceeded further. Learned senior counsel for the appellant could not dispute these facts brought on record by the learned senior counsel for the respondent nos. 1 and 2. Learned senior counsel for the appellant also could not dispute the present stage of the matter before the learned trial Judge.
69. With these admitted facts on record, this Court has to consider whether at this stage, when the issues under Order XIV Rule 2 of the CPC having already framed by the learned trial Judge including the issue of jurisdiction as raised by the appellant in the written statement and the appellant already having made an application on 16 th October 2016 unconditionally for recast of some of the issues by suggesting additional issues and the learned trial Judge already having directed the respondent nos.1 and 2 to file the list of witnesses, this Court can put the clock back and set aside the impugned order passed by the learned trial Judge granting interim relief. It is not in dispute that no ad-interim reliefs are granted by this Court in these four appeals and other connected four appeals.
70. In my view, it would be in the interest of justice that in view of there being no ad-interim relief granted by this Court in these appeals in last three years and the learned trial Judge already having framed issues under Order XIV Rule 2 of the CPC, the submissions now belatedly urged by the appellant cannot be entertained at this stage. In my view, the purpose and object of Section 9A of the CPC is to decide the issue of jurisdiction once raised expeditiously and before deciding ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 37 arbp-1169.13 wt ors.(j).doc the interim application finally and not to adjourn the said issue for determination along with the suit is with a view to expedite the hearing of such jurisdictional issue at the initial stage.
71. In my view, at this stage when the issues under Order XIV Rule 2 of the CPC have already been framed and the suit is ready for recording evidence, if the impugned order passed by the learned trial Judge is set aside and if the learned trial Judge is directed to hear the application under Section 9A of the CPC and to decide the issue of jurisdiction as a preliminary issue, in this situation, the whole purpose and object of Section 9A of the CPC would be defeated. Division Bench of this Court in the case of Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd.(supra) has held that the objection regarding jurisdiction of the Court under Section 9A of the CPC must be raised at the very initial stage. It is held that the test applicable would be that of Order XIV Rule 2 of the CPC, where the Court is to form an opinion as to whether along with other issues, the issue relating to the jurisdiction or bar to the maintainability of the suit under any other law should or should not be treated as preliminary issue.
72. It is held that this judicial discretion of the Court is then in no way controlled by the provisions of Section 9A of the CPC as the stage indicated by the legislative mandate under Section 9A is over. Division Bench has held that once the stage contemplated under Section 9A of the CPC is over i.e. the application for interim orders is decided, then those provisions loose their mandatory character and significance. Whereafter the application for framing an issue relating to jurisdiction and its determination in accordance with law would be controlled by the ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 38 arbp-1169.13 wt ors.(j).doc provisions of Order XIV Rule 2 of the CPC. It is further held that if an application under Section 9A of the CPC has been decided by the Court of competent jurisdiction, in that event the proceedings in the suit is controlled by the provisions of Order XIV Rule 2 of the CPC. In my view, at this stage when the issues are already framed under Order XIV Rule 2 including the issue of jurisdiction, which orders are passed after participation of the appellant and those orders not having been challenged by the appellant setting aside of the interim order at this stage and to remand the matter would delay the trial further and would defeat the whole purpose and object of Section 9A of the CPC ig and would encourage such appellant whose application under Section 9A was made with a view to delay the outcome of the suit.
73. In so far as the submission of Mr.Seervai, learned senior counsel for the appellant that the learned trial Judge has committed misconduct by not deciding the issue of jurisdiction is concerned, in my view, the learned trial Judge ought to have decided the issue of jurisdiction raised by the appellant as a preliminary issue under Section 9A of the CPC. The appellant, however, did not pursue the said application for interim relief filed by the appellant and did not challenge the order passed by the learned trial Judge disposing the said application as 'filed' nor revived the said application filed under Section 9A of the CPC, I am not inclined to accept the submission of the learned senior counsel for the appellant that in this case, the learned trial Judge has committed any misconduct by not deciding the said application first. Be that as it may, the appellant who has not only pursued its application for interim relief in the counter claim but has even subsequently participated ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 39 arbp-1169.13 wt ors.(j).doc in the trial when the issues were framed by the learned trial Judge under Order XIV Rule 2 of the CPC and has also made an application for recast of those issues, such party cannot be allowed to allege misconduct on the part of the learned trial Judge in not deciding the said issue of jurisdiction as a preliminary issue under Section 9A of the CPC in these circumstances.
74. There is no dispute about the propositions of law laid down by the Supreme Court in the cases of Dhirendra Nath Gorai and Ors.
(supra), Foreshore Co-operative Housing Society Limited (supra) and other judgments referred to by the learned senior counsel appearing for the parties including the judgment of this Court in the cases of Ferani Hotels Private Limited Vs.Nusli Neville Wadia and Ors. (supra), Mukund Ltd. (supra) and Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd.(supra). Those judgments, however, do not assist the case of the appellant.
75. A perusal of the order passed by the Supreme Court clearly indicates that Supreme Court had made it clear that the the Civil Court shall be at liberty to decide the legality, correctness and propriety of the order passed by the Collector in the suit proposed to be filed by the respondent nos.1 and 2 herein. In my prima facie view, in view of the judgment of the Supreme Court granting such liberty to the trial Court to decide the legality, correctness and propriety of the order passed by the Collector, the issue of jurisdiction raised by the appellant even otherwise did not have any substance. It is, however, made clear that this observation of this Court is restricted to the decision in these appeals. The learned trial Judge, however, shall decide the suit on its own merits ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 40 arbp-1169.13 wt ors.(j).doc and without being influenced by the aforesaid observations made by this Court.
76. In so far as the issue as to whether the appellant could raise an issue of jurisdiction in respect of the reliefs claimed by the respondent nos.1 and 2 (original plaintiffs) though the appellant itself had filed a counter claim in the said suit and the application for interim relief therein is concerned, in my view, the counter claim is also in the nature of a suit. Even if the suit filed by the respondent nos.1 and 2 is dismissed on the ground of jurisdiction, the learned trial Judge is bound to decide the counter claim filed by the appellant independently in view of the respondent nos.1 and 2 not having raised an issue of subject matter jurisdiction in respect of the counter claim. The appellant could thus maintain an application under Section 9A of the CPC in so far as the suit filed by the respondent nos.1 and 2 is concerned. In my view, the learned trial Judge, in this case, has already disposed of the application under Section 9A filed by the appellant in view of the appellant not pressing the said relief at that stage, the said order not having been impugned by the appellant admittedly till date has attained finality. The appellant thus could not make any grievance in respect of the said order in these appeals at this stage across the bar.
77. For the reasons recorded aforesaid, in my view, there is no substance in the issue of jurisdiction raised by the appellant at this stage. I am not inclined to accept the request of the appellant to set aside the impugned order passed by the learned trial Judge allowing the application for interim relief filed by the respondent nos.1 and 2 and to set aside the order rejecting the interim application filed by the appellant ::: Uploaded on - 16/01/2017 ::: Downloaded on - 17/01/2017 01:31:23 ::: ppn 41 arbp-1169.13 wt ors.(j).doc and remand the matter back to the learned trial Judge for deciding the application under Section 9A of the CPC at this stage. The said prayer of the appellant is rejected.
78. Office is directed to place the aforesaid appeals along with Appeal from Order Nos.1118 of 2013, 1173 of 2013, 1281 of 2013 and 1172 of 2013 before the learned Judge hearing appeals from order for 'Directions' to enable the Court to proceed further in those appeals for final disposal thereof on merits.
ig R.D. DHANUKA, J.
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