Bombay High Court
Shri Yashwant Dagdu More vs Mayuresh Builders And Ors. on 23 June, 2008
Equivalent citations: 2009 (2) AIR BOM R 152, 2009 A I H C 2019
Author: R.M. Savant
Bench: R.M. Savant
JUDGMENT R.M. Savant, J.
1. Rule. With the consent of the parties made returnable forthwith and heard. This Petition takes exception to the order dated 12.9.2006, passed by the learned Civil Judge Senior Division, Dhule by which order, the Application exhibit 116, filed by the Respondents herein came to be partly allowed and resultantly the orders passed by the learned Civil Judge Junior Division, Dhule, in Regular Civil Suit No. 337 of 1994, from 7.2.1998, till 18.7.2003 were declared to be null and void.
2. Such of the facts which are necessary to be cited are stated thus:
The Petitioner is the Original Plaintiff who had filed Regular Civil Suit No. 337 of 1994, seeking vacant and peaceful possession of shop bearing No. 2 in City Survey No. 1307 situated at lane No. 4 Dhule and also for injunction against the Defendants from creating any third party interest in the Suit property. The Petitioner also claimed mesne profits and in the alternative damages. The suit was valued for jurisdiction at Rs. 2,400/-. In the said Suit an order of temporary injunction came to be passed on 31.8.1994 against the Defendants i.e. the developers and the trustees of the Trust which owned the property in question. The Defendants were restrained from alienating the property in question.
After the said injunction came to be granted it was noticed by the Petitioner that one Parasmal Jain had painted the name of M/s. Sameer Medicals on the suit ship. According to the Petitioner the Suit shop was transferred by the Defendants inspite of the injunction operating against them. The Petitioner accordingly moved an Application and brought on record the events which had occurred after the filing of the Suit. The amendment Application of the Petitioner was allowed by the learned Civil Judge Senior Division, by order dated 2.2.1998. Thereafter the issues were framed by the Court on 7.2.1998. The hearing of the said Suit was adjourned from time to time and ultimately looking to the claim made in the suit, on account of the amendment the Court by its' order dated 18.7.2003 directed the said Regular Civil Suit to be registered as a Special Civil Suit. Thereafter on 19.3.2004, the Defendants to the said Suit namely the Defendants Nos. 3,4,7,8 and 9 filed Application Exhibit 116 and prayed for a declaration that the orders passed by the learned Civil Judge Junior Division after the amendment of the Suit be declared as null and void. The said declaration was stayed on the ground that looking to the claim made in the Suit, the learned Civil Judge Senior Division did not have the jurisdiction and therefore after the amendments were allowed by the learned Civil Judge Junior Division i.e. on 2.2.1998 all the orders passed in the said Suit were passed without jurisdiction. The said Application was resisted by the Petitioner by filing his reply which was numbered as exhibit 117. It was stated by the Petitioner in the said reply that the orders passed by the learned Civil Judge Junior Division would amount to an irregularity and not an inherent lack of jurisdiction. It was further averred that there is no prejudice caused to the Defendants however in order to prolong the matter an Application was filed. The said Application was considered by the learned Civil Judge Senior Division who by the impugned order dated 12.9.2006 partly allowed the said Application by ordering that the orders passed since 7.2.1998 till 18.7.2003 are null and void. The learned Judge, however refused the prayer for issuance of fresh summons by observing that the filing of the said Suit was within the knowledge of the Defendants.
As indicated above it is the said order dated 12.9.2006 which is impugned in the present Petition.
3. I have heard Shri P.M. Shah learned senior counsel appearing for the Petitioner and Shri Amol Sawant appearing for the Respondent No. 1 and Shri C.V. Korhalkar for the Respondent Nos. 3,4 and 6. The learned senior counsel appearing for the Petitioner submitted that exercise of jurisdiction by the learned Civil Judge Junior Division after the amendment Application was allowed on 7.2.1998 and passing of the various orders thereafter would at the most amount to an irregularity and was not an inherent lack of jurisdiction. The learned senior counsel relying upon the Roznama of the said Suit submitted that save and except the no written statement order passed, and the framing of the issues, the orders passed on the various dates mentioned in the Roznama are merely procedural. The learned Counsel relying upon the judgment of a learned Single Judge of this Court reported in 2005 Mh.L.J. 950 in the matter of Basant Kumar Jain v. Chief Executive Officer, Maharashtra Industrial Chief Executive Officer, Development Corporation and Ors., wherein it has been held that objection to pecuniary jurisdiction is the most technical of technicalities and even if it is held that because of undervaluation of the Suit, Civil Court (J.D.) a Court of inferior in hierarchy to the Civil Court (S.D.) has decided the Suit without it having the pecuniary jurisdiction, even then the defendants cannot succeed unless they demonstrate that they have suffered any prejudice or that there was consequent failure of justice on merits. Relying upon the said judgment the learned senior counsel submitted that in the instant case most of the orders being procedural in nature no prejudice as such is caused to the Respondents. The learned Counsel also relied upon the judgment of the Apex Court in the matter of Gokaraju Rangraju v. State of Andhra Pradesh, wherein the Apex Court was concerned with the doctrine of De-facto. It has been held in the said judgment, that if a defect is later on found in the title of the Judge, whatever be the defect in his title the judgment pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de-jure. The Supreme Court has further held that the doctrine of de-facto is borne out of necessity and public policy to prevent needless confusion and endless mischief. The learned senior counsel relied upon paragraph 17 of the said judgment which is reproduced hereinunder:
17. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective an may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge's appointment in an appeal against his judgment is, of course, such a collateral attack.
Relying upon the said judgment the learned Senior counsel submitted that even when a defect is found in the title, the orders passed by the person having a defective title could not be rendered null and void. The learned senior counsel therefore submitted that the order impugned in the present Petition deserves to be set aside as otherwise the Petitioners/Plaintiffs would have again to go through the rigmarole of various procedural compliances de-novo.
4. On the other hand, Shri C.V. Korhalkar learned Counsel appearing for the contesting Respondents 3,4 and 6 submitted that the orders have been passed by a Court which had no jurisdiction. The learned Counsel submitted that the apprehension expressed by the learned senior counsel appearing for the Petitioners is misplaced as the Trial Court had specifically ordered that the there was no need to issue fresh summons. The learned Counsel also submitted that the temporary injunction granted in favour of the Petitioners/Plaintiffs has also not been interferred with. Reliance of the learned senior counsel on the judgment of the Apex Court (supra) in respect of the doctrine of de-facto was misplaced. The learned Counsel submitted that in the context wherein there is a hierarchy of Courts, the exercise of jurisdiction by the learned Civil Judge Junior Division after the amendment was carried out on plaint on 7.2.1998 was illegal.
5. The learned Counsel also submitted that the No W.S. order passed on 25.8.2000, and the framing of issues on 16.6.2000 are orders which are prejudicial to the Defendants and therefore applying even the test laid down in the judgment of a learned Single Judge of this Court cited by the learned Senior counsel appearing on behalf of the Petitioners, the orders are required to be rendered null and void. The learned Counsel lastly submitted that since the corrective measures have been taken at the interim stage itself, this Court should not interfere in it's writ jurisdiction. Shri Amol Sawant learned Counsel appearing for the Respondent No. 1 adopted the arguments of Shri Korhalkar.
6. I have given my anxious consideration to the rival contentions. It would be significant to note that the Trial Court in the impugned order has rendered the orders passed from 7.2.1998 till 18.7.2003 as null and void. The Trial Court in Clause 3 of the impugned order however has rejected the prayer for issuance of fresh summons as was sought by the Defendants. A perusal of the Roznama discloses that right from 7.2.1998 till 18.7.2003 save and except the No W.S. order and the framing of issues raised in the orders are procedural.
7. The suit as filed initially considering the claim in the suit was rightly filed before the learned Civil Judge Junior Division, however it is only on account of the amendment which was allowed that the Suit went out of the jurisdiction of the Civil Judge Junior Division and lay before the Court of the learned Civil Judge Senior Division. Oblivious of this fact the learned Civil Judge Junior Division passed various orders which have been reflected to in the Roznama. Considering the view taken by the learned Single Judge in the judgment 2005 (2) Mh.L.J. 950 wherein the learned Judge has held that even if a suit has been decided by the learned Civil Judge Junior Division, who did not have the pecuniary jurisdiction, the Defendants can not succeed unless they demonstrate that some prejudice has been caused to them. If ultimately the decree passed by a Court not competent to hear the suit cannot be set aside, except on the ground of prejudice, considering the orders passed in the instant matter there is merit in the submission of the learned senior counsel appearing for the Petitioners that the orders passed which are mostly relating to procedural matters, would amount to an irregularity at the highest and not an illegality so as to nullify them in toto.
8. In sofar as the alleged prejudice as is sought to be contended by Shri Korhalkar on account of the No W.S. order it would be pertinent to note that since by the impugned order the Court has refused the prayer of Defendants for issuance of fresh summons, the alleged prejudice on account of the No W.S. order loses it's significance as the written statement is to be filed in terms of Order 8(1) of the Code of Civil Procedure within the period stipulated in the said provision after summons are served upon the Defendants. The Court having refused the prayer for issuance of fresh summons, I do not find any merit in the said contention of Shri Korhalkar. It would also be significant to note that the Respondents have not filed any proceedings to challenge the said No W.S. order. Having not done so the Respondents cannot take shelter of the impugned order so as to get the said No W.S. order set aside. In my view it would amount to the Respondents getting a relief indirectly which they could not get directly. However the Respondents would be entitled to adopt such proceedings as are permissible in law for getting the No W.S. order set aside.
9. In sofar as the framing of issues are concerned, the issues in question have been framed by the learned Civil Judge Junior Division and the said issues would be transmitted to the Court of the learned Civil Judge Senior Division, Dhule. If the Petitioners have any grievance about any of the issues framed the Petitioners would be entitled to agitate the same, before the learned Civil Judge Senior Division, Dhule. Save and except as mentioned hereinabove the said two orders, i.e. No W.S. order passed on 25.8.2000 and the framing of the issues on 16.6.2003 the rest of the orders as disclosed in the Roznama are merely procedural. Considering the fact that the Trial Court has refused the prayer for issuance of fresh summons, in my view, there is no warrant to render the orders passed from 7.2.1998 to 18.7.2003 as null and void as held by the Trial Court. The same would also be in the interest of expeditious disposal of the said Suit. Resultantly the above Writ Petition is allowed. The impugned order dated 12.9.2006 passed by the Joint Civil Judge Junior Division, Dhule in sofar as it directs in Clause 2 thereof that the orders from 7.2.1998 till 18.7.2003 are held to be null and void is set aside. Rule is accordingly made absolute to the aforesaid extent with parties to bear their respective costs.