Bombay High Court
Shri Govinda Goga Donde } vs Shri Mayur Ramesh Bora on 20 August, 2013
Author: Ravi K.Deshpande
Bench: Ravi K.Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.6769 OF 2011
1.Shri Govinda Goga Donde }
Age 60 yrs, Occu:Agriculturist
Residing at Pathardi Taluka }
& Dist Nasik
2. Shri Huashi Goga Donde
@Shri Huashi Murlidhar Ghatsav }
Age 67 yrs, Occu: Labour
Residing at Murambital: Igatpuri Dist.Nasik } .. Petitioners
V/s.
1.Shri Mayur Ramesh Bora
Age 30 yrs, Occu:Service }
Residing at 206, Abhyankar Plaza
M.G.Rd, Nasik }
2.Smt Manisha Ramesh Bora
Age 27 years Occu: Housewife }
Residing at 206,Abhyankar Plaza
M.G.Road, Nasik }
3.Smt Mangala Ramesh Bora
Age 50yrs, Ococu: Housewife }
Residing at 206,Abhyankar Plaza
M.G.Road, Nasik } .. Respondents
Appearances :
Mr.S.B.Deshmukh for Petitioners
Mr.S.S.Shah for Respondents
CORAM : RAVI K.DESHPANDE, J
DATE: 20.8.2013
ORAL JUDGMENT
1. This Petition challenges the order dated 9.6.2011 passed by the learned 5th Joint Civil Judge, Junior Division, Nasik below Exhibit 62 in Regular Civil Suit No. 45 of 2011. By this order, the Court has directed ::: Downloaded on - 27/08/2013 21:19:08 ::: RNG 2/15 6769.11.sxw framing of preliminary issue of limitation in exercise of its power conferred by section 9-A of the Code of Civil Procedure.
2. In Regular Civil Suit No.45 of 2011 the Plaintiff has claimed a relief as under :
(a) It may kindly be declared that sale deed Day-Book serial No. 1357/1965 dated 2nd August, 1965 is illegal and not binding on the plaintiff and defendant Nos. 4 to 8 and the said sale deed may be cancelled.
(b) Defendant Nos. 1 to 3 through themselves and any other persons on their behalf may kindly be restrained from dispossessing the plaintiff and defendant No.6 from the suit property illegally and by coercion by granting permanent injunction against the defendant Nos. 1 to 3.
(c) Costs of the suit may be awarded to the plaintiff from the defendant Nos. 1 to 3.
(d) Any other justifiable relief to which the plaintiff is entitled may be granted.
Prayed accordingly.
3. In prayer clause (a) a declaration is sought that the Sale Deed dated 2.8.1965 bearing Registration No.1357 of 1965 be declared as illegal and not binding upon the Plaintiff and Defendant Nos.4 to 8 and to further cancel the same. In prayer clause (b) a relief of permanent injunction ::: Downloaded on - 27/08/2013 21:19:08 ::: RNG 3/15 6769.11.sxw restraining the Defendant Nos.1 to 3 from illegally dispossessing the Plaintiff and Defendant No. from the Suit property is claimed.
4. It is urged by the learned Counsel for the Petitioner that by the impugned order, the trial court has ordered to frame a preliminary issue regarding jurisdiction of the Court to entertain, try and decide the Suit.
According to him, even if the Court holds that the Suit is barred by limitation, it only disposes of the part of the cause of action and the Suit survives in respect of the relief in prayer clause (b), claiming permanent injunction restraining the Defendants from forcibly dispossessing the Plaintiff and Defendant nos.4 to 8 from the Suit property. In such a situation, according to him, the trial Court had no jurisdiction to frame such an issue in exercise of its powers under section 9-A of the Code of Civil Procedure, which shall not completely dispose of the Suit.
5. As against this, the contention of the learned Counsel for the Respondents is that the relief in terms of prayer clause (b) is consequent upon the grant of relief in terms of prayer clause (a). According to him, if it is held that the Suit is barred by limitation then the Plaintiff would not be ::: Downloaded on - 27/08/2013 21:19:08 ::: RNG 4/15 6769.11.sxw entitled to the reliefs in terms of prayer clause (a) and consequently he would not be entitled to reliefs in terms of prayer clause (b). Hence according to him the Suit is liable to be dismissed if the issue is answered in the affirmative. Alternatively, the learned Counsel has urged that the trial Court is competent in exercise of its powers under section 9-A of the Code of Civil Procedure to frame a preliminary issue which can dispose of the Suit partly or the cause of action in part. He has relied upon the Division bench of this Court delivered in Appeal No.817 of 2010 in the case of Ferani Hotels Private Limited vs Nusli Neville Wadia & ors decided on 19.7.2012 .
6. After going through the averments made in the Plaint, it appears that the question as to whether the relief claimed in terms of prayer clause (b) is a consequential relief, flowing from the grant of reliefs in terms of prayer clause (a), also needs to be gone into. At this stage, it is suffice to say that even if it is held that the Suit claiming reliefs in terms of prayer clause (a) is barred by limitation that would not be sufficient to dispose of the Suit as a whole. At the most, the Suit would be disposed of in part.
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7. The question relates to the interpretation of section 9-A of the Code of Civil Procedure and hence it is reproduced below:
"9-A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the court as a preliminary issue.- (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of an application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the court to entertain such a suit is taken by any of the parties to the suit, the court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the to the hearing of the suit."
"(2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction"-Maharashtra Act (65 of 1977) (w.e.f. 19.12.1977)."
8. The question has been squarely dealt with by the Division Bench of this Court. Para 19 is reproduced below:
"19. On the first leg of the submission,it has been urged before the court by learned Senior Counsel that Section 9A uses the expression "to entertain such a suit". Based on this, it was submitted that an objection to the jurisdiction of the Court must be to the entertainment of a suit in its entirety. In other words, the submission is that where ::: Downloaded on - 27/08/2013 21:19:08 ::: RNG 6/15 6769.11.sxw an objection as to jurisdiction could not result in the complete disposal of the suit, in the event that is upheld, the issue as to jurisdiction need not be framed as a preliminary issue.
20. At the outset, when we consider the submission it would be necessary to note that a restrict of the kind that is suggested on behalf of the administrator is not contained in the plain terms of section 9A. The first part of Section 9A(1) makes a reference at the stage at which the objection is raised while the second part adverts to the nature of the objection. The nature of the objection is that it has to be "an objection to the jurisdiction of the Court to entertain such a suit". An objection to the jurisdiction may in a certain conceivable situation be to the jurisdiction of the Court to entertain the suit in its entirety as for instance where the court lacks the jurisdiction to entertain the subject matter of the suit on the ground that properly construed the suit relates to the relationship of a lessor and lessee falling within the exclusive domain of the Small Causes Court in the city of Mumbai. Alternately, the objection may be to the lack of territorial jurisdiction or on the ground of a lack of pecuniary jurisdiction. Equally an objection as to jurisdiction can be well be in respect of a part of cause of action which is set up in the suit. For instance, even on the issue of territorial jurisdiction, a part of the cause of action may fell within the jurisdiction of the court while another part may fall outside. An illustration of that nature is to be found in the judgment of the Supreme Court in Sandeep Polymers (P) Ltd vs Bajaj Auto Ltd. The significant aspect is that if an objection to the jurisdiction of the Court to entertain a part of the cause of action would fall outside the scope of adjudication in the suit before the court before which the objection is raised. The object of the legislature was to preclude the Plaintiff from pursuing an application for interlocutory relief though the claim on the basis of which the application is founded falls outside jurisdiction. This rationale would be relevant both to a situation where the entirety of the claim lies outside the jurisdiction of the court as well as in a situation where a part of the cause of action is outside the jurisdiction, though the rest falls within. An objection as to the jurisdiction of the court "to entertain such a suit" must bear its natural and ordinary connotation which would mean an objection to ::: Downloaded on - 27/08/2013 21:19:08 ::: RNG 7/15 6769.11.sxw the jurisdiction of a court to entertain even a part of the cause of action raised in a suit. For this Court to hold that section 9A would not apply in a situation where the objection of jurisdiction would not result in the disposal of the entire suit, even if it were to be upheld would be to introduce a condition which has not been imposed by the legislature. In the course of interpreting Section 9A, it would not be open to this court either to rewrite the provision or to introduce a condition, which the legislature has not found it fit to impose. If as a result of the experience which has been gained over the years on the practical working of the statutory provision, an amendment to the provision is necessitated, the remedy would not lie before this Court but before the legislature which must consider a possible amendment."
The Division Bench has repelled the contention that where an objection as to the jurisdiction raised under section 9-A of the Code of Civil Procedure, could not result in the complete disposal of the suit, in the event that is upheld, the issue of jurisdiction cannot be framed. It has been held by the Division Bench that the objection as to the jurisdiction of the court "to entertain such a suit" must bear its natural and ordinary connotation which would mean an objection to the jurisdiction of a Court to entertain even a part of cause of action raised in the suit. It has held that if it is not construed in this fashion, then it would amount to introducing a condition which has not been imposed by the legislature.
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9. No doubt, I am bound by the decision of the Division Bench of this Court stated above. It was expressed to the learned Counsels appearing for the Petitioners that if the Single Judge of this Court thinks that the question decided by the Division Bench needs a fresh look or reconsideration by a larger bench, then what is the course left open. The learned Counsels have invited my attention to Rule 7 in Chapter I of the Bombay High Court Appellate Side Rules, 1960 which is reproduced below:
" 7. Reference to two or more Judges- If it shall appear to any Judge, either on the application of a party or otherwise, that an appeal or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice 2 who shall make such order thereon as he shall thinks fit."
The learned Counsel for the Petitioner has invited my attention to para 20 of the Full Bench decision of this Court in Vinayak Hari Kulkarni vs State of Maharashtra reported in 2010 (4) Mh.L.J. 868 the relevant portion of which is reproduced below.
"20. As noted earlier, the Division Bench in the instant petition by its order dated 18.3.2009 has not framed any specific issues for consideration by the Full bench nor the referral order passed by the Hon'ble the chief Justice has framed any specific questions for determination/decision by the Full Bench. Having regard to the scheme of Rule 7 of Chapter 1 of the Appellate Side Rules 1960, the Single Bench or the Division Bench has the power to direct the ::: Downloaded on - 27/08/2013 21:19:08 ::: RNG 9/15 6769.11.sxw office to place the petitions before the Hon'ble Chief Justice for reference and such a bench on its own has no power to make a reference directly to the larger bench. The referral order is required to be passed by the Chief Justice and while exercising such powers he must be satisfied that there is a case made out to make a reference. As no issues were framed to be decided by the Full Bench, in the instant petition, the Full Bench has framed the above mentioned two issues and that too after hearing all the parties concerned. If any of the parties are aggrieved by framing of the issues or any such issue, by the Full Bench, their remedy would be before the Appellate forum."
10. Thus, it is clear that under Rule 7 of Chapter I if the Single Judge is of the view that the matter can be more advantageously be heard by the Bench of two or more Judges, then he can make a report to that effect to the Chief Justice who shall make such an order thereon as he shall think fit.
The Full Bench has held that the learned Judge has to direct the Office to place the Petition before the Hon'ble Chief Justice for reference and for referral as required to be passed by Hon'ble the Chief Justice.
11. After hearing the learned Counsel appearing for the parties, I am of the view that the matter requires a fresh look and re-consideration and can be more conveniently decided by a bench of two or more Judges, for the following reasons :-
::: Downloaded on - 27/08/2013 21:19:08 :::RNG 10/15 6769.11.sxw (1) To read the expression "to entertain a Suit" employed under section 9-A of the Code of Civil Procedure to mean " to entertain even a part of cause of action" amounts to addition of the words in provisions and creating casus omissus which is contrary to the principle of interpretation to avoid addition of the words in the section, when the language of the provision is clearly unambiguous.
(2) The object of introducing section 9-A is to explore possibility of working out the complete litigation pending in the Suit before the trial Court, on the basis of the preliminary objection, so that the parties are not burdened with process of protracted litigation.
(3) The language employed under section 9-A of the CPC is in contradiction with the language employed under Order 14 Rule (2) of the Code of Civil Procedure which states that where issues on both law and on facts arise in the same Suit and the Court is of the opinion that the cause or any part thereof may be disposed of on the issue of law only it may try that issue first. Section 9-A has been ::: Downloaded on - 27/08/2013 21:19:08 ::: RNG 11/15 6769.11.sxw given a overriding effect to mean thereby that the Suit is completely disposed of upon deciding of the preliminary issue which shall be framed.
(4) While deciding the question, the observations in paras 8 and 10 of the Division Bench of this Court in Meher Singh vs. Deepak Sawhney & anr reported in 1999 (1) Bom.C.R. 107 which is reproduced below, need to be considered.
"8. In the case of Institute Indo-Portuguese vs. Dr.T.Borges)) reported in 1958 Bom.L.R. 660 the Court appointed Receiver with regard to Trust property and a contention was raised whether the court has jurisdiction to entertain the suit in the first instance and to appoint Receiver thereafter,. In that case the Court has observed that the question whether the court has jurisdiction to entertain the suit for the reliefs claimed therein would be an appropriate question in the suit itself and may if the defendants so choose be made the subject matter of a separate issue that might be properly raised in the suit itself. To avoid the situation, which is arising out of the said decision section 9-A was added in December, 1969. After amendment of the code of Civil Procedure in 1973, section 9-A in the present form is substituted in the year 1977."
" 10. Section 9-A is a departure from the procedure established for deciding the preliminary issue as prescribed under Order XIV, Rule 2 of Civil Procedure. On many occasions, it is not always proper to pass an order of hearing the preliminary issue with regard to maintainability of a suit at the time of final hearing of the ::: Downloaded on - 27/08/2013 21:19:08 ::: RNG 12/15 6769.11.sxw suit. If such issue is decided at an earlier stage, rights of the parties can be crystallized. As stated earlier, section 9-A is a departure from the procedure prescribed under Order XIV, Rule 2 of the Code of Civil Procedure for achieving that object. For determination of the preliminary issue, which may be mixed question of law and facts, the parties are required to lead evidence. Without permitting the parties to lead evidence the issue of jurisdiction cannot be finally determined. If it was to be decided only for prima facie purpose for granting interim relief, then there was no necessity of adding section 9-A in the Civil Procedure Code. Secondly, on the basis of prima facie determination without proper adjudication, in our view, suit cannot be disposed of. The plaintiff cannot be non-suited on the basis of the averments made in the plaint or in the Written Statement. If the issue is a pure question of law, then it may be decided without recording evidence but if it is a mixed question of law and fact then parties should be permitted to lead evidence on the facts of the case. Question of jurisdiction, even if it is a mixed question of law and fact, it is required to be decided first. For deciding the said issue, the parties are entitled to lead evidence, oral as well as documentary, as that issue, is required to be tried and adjudicated finally by the Court. The determination of the said issue is not only for the limited purpose of granting interim relief or vacating interim relief. It is true that this procedure requires piecemeal determination of the suit, but that cannot be avoided because of the mandate of section 9-A."
(5) In the decision of the Apex Court in the case of Gunvantbhai Mulchand Shah vs Anton Ellis Farel reported in (2006) 3 Mh.L.J.66, it was a suit for specific performance of contract and the issue of limitation had been framed under section 9-
A of the CPC. It was answered holding that the Suit is barred by limitation as prescribed under Article 54 and hence, it was dismissed.
::: Downloaded on - 27/08/2013 21:19:08 :::RNG 13/15 6769.11.sxw The Apex Court had reversed the decision holding that it was mixed questions of law and facts and the parties could have been asked to lead evidence and the issue could have been decided along with other issues. In para 8 of the decision, the Apex Court has held as under :
"8. It is seen that the suit was dismissed by the trial court on the finding that the claim for the relief of specific performance was barred by limitation. The plaint contains not only a prayer for specific performance but also a prayer for perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs and from creating any documents or entering into any transaction in respect of the suit property. Of course the latter part of that prayer is directly linked to the claim for specific performance but the suit as regards the prayer for perpetual injunction to protect the possession of the plaintiff over the suit property on the claim that the predecessor of the plaintiffs was put in possession of the property pursuant to the agreement for sale, on a subsequent date could not have been held to be not maintainable on any ground. Of course the grant of the relief of injunction in a sense is discretionary and the court ultimately might or might not have granted the relief to the plaintiffs. The defendants could have also shown that the relief of injunction is claimed is merely consequential to the relief of specific performance and was not an independent relief. But that is different from saying that the suit could be dismissed merely on the finding that the prayer for specific performance of the agreement was barred by limitation. In any event, therefore, the dismissal of the suit as a whole as not maintainable, could not be justified or said to be correct."
It has been held by the Apex Court that a Plaint containing not only ::: Downloaded on - 27/08/2013 21:19:08 ::: RNG 14/15 6769.11.sxw prayer for specific performance but also a prayer for perpetual injunction restraining the defendants from interfering with possession of the plaintiff and from granting and/or entering into any transaction in respect of the suit property it has been held that of course the latter part of that prayer is directly linked to the claim for specific performance but the suit as regards prayer for perpetual injunction to protect possession of the Plaintiff over the suit property on the claim that the predecessor of the plaintiff was put in possession of the property pursuant to the agreement for sale on a subsequent date could not have been held to be not maintainable on any ground. It was held that disposal of the suit as well as is not maintainable could not be justified or said to be correct.
In view of the above, following question need to be considered by a large Bench.
Whether in exercise of the powers under section 9-A of the Code of Civil Procedure, the trial Court is competent to frame an issue, disposing of the Suit in part or the cause of action in part ?
::: Downloaded on - 27/08/2013 21:19:08 :::RNG 15/15 6769.11.sxw The matter be placed before the Hon'ble the Chief Justice for placing it before the larger Bench of two or more Judges.
JUDGE ::: Downloaded on - 27/08/2013 21:19:08 :::