Gujarat High Court
Gujarat Water Supply And Sewerage Board vs Heirs And L.R. Of Pravinbhai Patel on 21 February, 2002
Equivalent citations: 2002 A I H C 3505
JUDGMENT H.H. Mehta, J.
1. This is a group of four Appeals From Orderarising from a common order dated 29th September, 1998passed under Order 7 Rule 10, Civil Procedure Code, bylearned 7th Joint Civil Judge (S.D.), Nadiad in fourdifferent suits viz. Special Civil Suit Nos. 321 of1989, 322 of 1989, 323 of 1989 and 324 of 1989..
2. As the appellants and respondents are common inall the appeals and a common question of law is involved,these four appeals are disposed of, at the request oflearned Advocates for both the parties by this commonjudgment.
3. The appellant, being plaintiff, filed fourdifferent Special Civil Suits referred to in Para 1hereinabove against one Pravinbhai H. Patel to recoverdifferent amounts as compensation on the ground thatdefendant failed to complete execution of contract workentrusted by plaintiff under the contract, as a result oftender filled-in and submitted by contractor PravinbhaiH. Patel which was ultimately accepted by the plaintiff.
4. During the pendency of aforesaid suits, originaldefendant Pravinbhai H.Patel died, as a result of which,his heirs and legal representatives were brought onrecord in each suit.
5. As stated earlier, plaintiff filed aforesaid foursuits to recover different amounts of compensation aslisted in Para 2 of the impugned order Ex.27 on theground that as original contractor failed to complete theexecution of contract work, the plaintiff got that'incomplete' contract work 'completed' through a thirdagency and for getting such 'incomplete-contract work'completed through the third party, the plaintiff had topay excess amount to third party, and therefore, theplaintiff filed aforesaid four suits to recovercompensation from the defendant.
6. Defendant -Contractor appeared in aforesaid foursuits and resisted the suits by filing written statementswherein he has denied stopping of contract work. He hasfurther pleaded that relevant maps and outlines weresupplied to him late by the plaintiff, and as such,prices have been increased. It is his case thatdefendant Contractor was already ready and willing toperform his duties but plaintiff Board failed to performits duties on its part, and as such, the plaintiff Boardis not entitled to any compensation as prayed for.
7. It appears from record that the learned Judge ofthe trial Court framed following issue and decided toanswer that issue as a Preliminary Issue:
(1) Whether this Court has jurisdiction to try thissuit in view of the provisions contained in theGujarat Public Works Contracts DisputesArbitration Provision Act, 1992 ?
After hearing the learned Advocates for both theparties, the learned judge of the trial Court answeredthat issue in negative and came to a conclusion that inview of Sec. 13(1) of the Gujarat Public Works ContractsDisputes Arbitration Act 1992, all the four suits oughtto have been transferred to the Tribunal constitutedunder the aforesaid Act, and thereby, he passed an orderEx.27 under Order 7 Rule 10, C.P.C. directing the officeof his Court to return the plaint of each suit to theplaintiff for presentation to the proper Court, andaccordingly, the learned Judge further intimated theplaintiff as per provisions of Order 7 Rule 10-A, C.P.C.
8. Being aggrieved against and dissatisfied with theaforesaid order dated 29th September, 1998 passed belowEx.27 by which the learned Judge of the trial Courtordered to return the plaint of each suit to theplaintiff for presentation to the proper Court, theoriginal plaintiff has preferred these present appeals.
9. Before these appeals could be taken up forhearing, pursuant to the order of this Court dated 4thOctober, 2001, the Office has placed records of CivilRevision Application Nos. 1286 of 1996 and 1287 of 1996along with these four appeals.
10. Heard Mr. Mehul H. Rathod, learned Advocate forthe appellant and Mr. D.V.Shah, learned Advocate for therespondents. Mr. Mehul Rathod has taken me through theimpugned order and judgments rendered in Civil RevisionApplication Nos. 1286 of 1996 and 1287 of 1996 by thisCourt, the records of which had already been called forand produced with these appeals.
11. At the outset, Shri Mehul H. Rathod brought tothe notice of this Court, the following certain factswith relevant dates so as to enable this Court to decidethe issue in its correct perspective:
(1) 30-11-1979 As submitted by Mr. Rathod,there is no dispute with regardto fact that four differentcontracts for laying pipe-lineswere entrusted by plaintiff todefendant and for that workorders for respective works wereissued to the original defendant.
(2) 06-12-1089 As submitted by Mr. Rathod, therespondent did not complete thework as per the contract andhence the appellant (originalplaintiff) filed aforesaid fourdifferent suits bearing SpecialCivil Suit Nos. 321/89, 322/89,323/89 and 324/89 in the CivilCourt at Nadiad to recover thedamages from the defendant.
(3) In 1991 Gujarat Government promulgatedthe Gujarat Public WorksContracts Disputes ArbitrationTribunal Ordinance, 1991.
(4) in 1992 The Gujarat Public WorksContracts Disputes ArbitrationTribunal Act, 1992 (for short"Act") was passed, replacing theaforesaid Ordinance.
(5) 05-12-1991 As per Government Gazette, VolumeXXXIII (Part V) dated 7thFebruary, 1992, only Sec. 1 of theGujarat Public Works ContractsDisputes Arbitration Act, 1992came into force. As per the saidGovernment Gazette, the remainingprovisions of the Act would comeinto force on such date as theState Government may, byNotification in the OfficialGazette, appoint. Thus onlySec. 1 of the aforesaid Act cameinto force in Gujarat State, andremaining provisions of the saidAct did not come into force on5/12/1991.
(6) 01-01-1994 As per Notification dated 10thDecember, 1993 of LegalDepartment, Government ofGujarat, all the remainingprovisions of the aforesaid Actcame into force with effect from1/1/1994 in the Gujarat State.
(7) 29-09-1998 The learned Judge of the trialCourt passed an order below Ex.27directing the Office of his Courtto return the plaint of each suitto the plaintiff for presentationto the proper Court.
12. Shri Rathod has argued that if we scrutinize theimpugned order, we find that the learned Judge of thetrial Court, by placing reliance on Sec. 13(1), of the Actcame to a conclusion that the Civil Court has nojurisdiction to try the Civil Suits filed on 6/12/1989.He has argued that the provisions of the Gujarat PublicWorks Contracts Disputes Arbitration Tribunal Act, 1992(for short "the Act of 1992 ") came into force witheffect from 1/1/1994. Nothing is mentioned about thedate as to from which date the effect of the provisionsof the Act has been given. He has argued that in absenceof clause for either "retrospective effect" or"prospective effect" in the Act, it should mean thateffect of the provisions has been given prospectively andnot retrospectively, and therefore, the learned Judge ofthe trial Court has seriously erred in coming to aconclusion that plaint be returned to the plaintiff forpresentation to the proper Court in view of Secs. 13(1),of the Act. He has argued that the learned Judge of thetrial Court has not transferred the suits to the Tribunalconstituted under the Act. He has simply returned theplaints of the suits to the plaintiff for presentation tothe proper Court. He has argued that this is not a casein which the learned Judge of the trial Court has simplytransferred the suits to the Tribunal.
13. He has further argued that question of similarnature arose before this Court in Civil RevisionApplication No. 1286 of 1996. By referring the recordand proceeding of Civil Revision Application No. 1286 of1996, he has argued that a suit bearing Special CivilSuit No. 82 of 1989 was filed by the Contractor againstthe Government in Civil Court at Himatnagar in the year1989. During the pendency of said suit, the defendanti.e. State Government submitted one application Ex.54taking objection regarding the jurisdiction of CivilCourt in view of the provisions of the Act. It wascontended for and on behalf of the defendant -StateGovernment in that suit that in view of Sec. 8 of the Act,Civil Court has no jurisdiction and further that theTribunal constituted under the Act has jurisdiction totry the suit. The defendant had requested in hisapplication Ex.54 to transfer the suit to the Tribunal.The learned Judge of the trial Court rejected thatapplication Ex.54 on the ground that the provisions ofthe Act will not be applicable to the facts of the suitfiled in the year 1989. The learned Judge of the trialCourt in his final order held that Sec. 8 of the Act isnot applicable and Civil Court has got jurisdiction toentertain the suit. The defendant of that suit carriedthe said matter further by preferring Civil RevisionApplication No. 1286 of 1996 to this Court.
14. This Court by its judgment dated 4/4/1998 hasheld in Para 4 of order as follows:
"The Gujarat Public Works Contracts DisputesArbitration Tribunal Act, 1992 came into forcewith effect from 1.1.1994 as notified by theState of Gujarat. The Act of 1992 was enacted inorder to provide for the constitution of theTribunal to arbitrate in disputes arising fromthe works contracts to which the State Governmentor a public undertaking is a party and to providefor matters connected therewith. Thus thepurpose as disclosed in the preamble, Section 8 provides that where any dispute arises betweenthe parties to the works contracts, either partyshall, irrespective of whether such contractcontains an arbitration clause or not, refer,within one year from the date when the disputehas arisen after 1.1.1994. It is only theTribunal under the Act of 1992 has thejurisdiction to adjudicate the disputes betweenthe parties to works contract irrespective of thefact that whether such works contract containsarbitration clause or not. Section 21 providesthat all the Arbitration Proceedings in relationto such disputes pending before an arbitrator,umpire, Court or authority shall standtransferred to the Tribunal. Section 8 providesfor adjudication of all disputes relating toworks contract by the Arbitration Tribunal Act of1992. Section 21 provides for transfer of allthe Arbitration Proceedings pending as on1.1.1994. Admittedly, no arbitration proceedingswere pending on 1.1.1994 in the instant matters,as such provision of section 21 is not attracted.Thus I find no infirmity in the impugned order."
14.1. Shri Rathod has argued that when this Court hasspecifically held that suits filed prior to 1/1/1994cannot be transferred to the Tribunal constituted underthe Act, Civil Court has jurisdiction to try such suitsfiled before 1/1/1994.
15. Shri D.V.Shah, learned Advocate for therespondent has vehemently argued that in view of Sec. 13 of the Act, jurisdiction of Civil Court is ousted. Hehas argued that as per Section 9 of the Civil ProcedureCode, Civil Court shall have jurisdiction to try all thesuit of a civil nature except the suits of which theircognizance is either expressly or impliedly barred. Hehas argued that looking to Sec. 13 of the Act,jurisdiction of the Civil Court is ousted, and therefore,the learned Judge of the trial Court has rightly orderedto return the plaint to the plaintiff for presentation tothe proper Court. He has put much stress on the words"to deal with or decide" used in Sec. 13(1) of the Act.In support of his arguments, he has cited certainauthorities which will be dealt with at appropriatestage.
16. It may be noted that in aforesaid four suits,defendant Contractor appeared and took effective part incontesting the suits by filing written statements. It isnot the case of the defendant that at his instance,particular issue was decided to be heard as a PreliminaryIssue. From impugned order, it appears that the learnedJudge of the trial Court suo motu framed following issueand decided to hear it as a Preliminary Issue:
Whether this Court has jurisdiction to try thesuit in view of provisions contained in theGujarat Public Works Contracts DisputesArbitration Tribunal Act 1992 ?
17. Here in this case, the learned Judge of the trialCourt has, by passing order Ex.27, directed the Office toreturn the plaint to the plaintiff for presentation tothe proper Court. It is clear that the learned Judge ofthe trial Court has not transferred the whole suit to theTribunal in view of the provisions of the Act. Lookingto provisions of Order 7 C.P.C., the Court has to examinethe facts stated in the plaint as to whether on the dateof filing of the suit, it had jurisdiction to try, decideand dispose of the suit in a normal course. After filingthe suit, the suit proceeds further and ultimately, onfiling of the written statement, if an attention of theCivil Court is drawn that on the date of filing of thesuit, the Civil Court had no jurisdiction, then in thatcase, the Court has no other option but to return theplaint to the plaintiff for presentation to the properCourt, meaning thereby, he has to decide the point as toon the date of filing of the suit, that particular CivilCourt had jurisdiction or not. If from the facts andcircumstances stated in the plaint as well as thecontentions taken by the defendant in the writtenstatement if it is found that some other Civil Court hasjurisdiction to try and decide the suit, then in thatcase, plaint can be returned. So the material date wouldbe the date of filing of the suit. Admittedly, in thisset of facts of the case, the suits were filed on6/12/1989. On that day, there was no Act on the statutebook. That Act came into force with effect from1/1/1994, and therefore, the learned Judge of the trialCourt has grossly erred in returning the plaints to theplaintiff for presentation to the proper Court.
18. If the learned Judge of the trial Court hadtransferred the suits to the Tribunal by applyingprovisions of the Act, then the position would beotherwise.
19. Admittedly, on 6/12/1989, the plaintiff filed suitsand on that day, Civil Court had jurisdiction to try anddecide the suits. As per the arguments of Shri D.V.Shah,the learned Advocate for the respondent, because ofintroduction of the provisions of the Act, thejurisdiction of the Civil Court has been ousted, andtherefore, on and from 1/1/1994, in view of Sec. 13(1) ofthe Act, the learned Judge of the trial Court has nojurisdiction to deal with and decide the suits. So asper arguments of Shri D.V.Shah, in normal course, CivilCourt had jurisdiction on the date of filing of the suit,but because of introduction of the Act, the jurisdictionof the Civil Court has been ousted, and therefore, theimpugned order is not bad in law and the same cannot bedisturbed as submitted by the appellant.
20. In case of Vankamamidi Venkata Subba Rao Vs.Chatlapalli Seetharamaratna Ranganayakumma, reported inAIR 1997 SC 3082, the Hon'ble Supreme Court hasspecifically observed in Para 15 (Page 3085) as follows:
"......... Therefore, the normal rule of law isthat civil Courts have jurisdiction to try allsuits of civil nature except those of whichcognizance is either expressly or by necessaryimplication excluded. The Rule of constructionbeing that every presumption would be made infavor of the existence of a right and remedy in ademocratic set up governed by rule of law andjurisdiction of the civil Courts is assumed. Theexclusion would, therefore, normally be anexception. Courts generally construe theprovisions strictly when jurisdiction of thecivil Courts is claimed to be excluded." ........
21. Keeping in mind the aforesaid provisions andlegal position with regard to exclusion of jurisdictionof civil Court, now we will examine the provisions of theAct on which the respondent has placed reliance fordismissal of these appeals.
22. Relevant provisions for consideration will be asfollows:
Sec. 8(1) Where any dispute arises between the partiesto the works contract, either party shall,irrespective of whether such works contractcontains an arbitration clause or not, refer,within one year from the date when the disputehas arisen, such dispute in writing to theTribunal for arbitration in such form andaccompanied by such documents or other evidenceand by such fees, as may be prescribed.
(2) On receipt of a reference undersub-section (1), the Tribunal may, if satisfiedafter such inquiry as it may deem fit to make,that the requirements under this Act in relationto the reference are complied with, admit suchreference and where the Tribunal is not sosatisfied, it may reject the reference summarily.
(3) Where the Tribunal admits the referenceunder sub-section (2), it shall, after recordingevidence if necessary, and after perusal of thematerial on record and on affording anopportunity to the parties to submit theirarguments, make an award or an interimaward/giving its reasons therefor.
(4) The Tribunal shall use all reasonabledispatch in entering on and proceeding with thereference admitted by it and making the award,and an endeavour shall be made to make an awardwithin four months from the date on which theTribunal had admitted the reference.
(5) The award including the interim awardmade by the Tribunal shall, subject to an order,if any, made under section 11 or 12, be final andbinding on the parties to the dispute.
(6) An award including an interim award asconfirmed or varied by an order, if any, madeunder section 11 or 12 shall be deemed to be adecree within the meaning of section 2 of theCode of Civil Procedure, 1908 of the principalCourt of original jurisdiction within the locallimits whereof the award or the interim award hasbeen made and shall be executed accordingly.
Sec. 13(1) Save as otherwise provided by section 12 ,no Civil Court shall have jurisdiction to dealwith or decide any question which the Tribunal isempowered to deal with and decide by or underthis Act and no injunction shall be granted byany Civil Court in respect of any action taken orto be taken in pursuance of any power by or underthis Act.
(2) No award or interim award or order madeor proceedings taken under this Act by theTribunal shall be called in question in any CivilCourt.
Sec. 21 The provisions of the Arbitration Act,shall in so far as they are inconsistent with theprovisions of this Act, cease to apply to anydispute arising from a works contract and allarbitration proceedings in relation to suchdispute before an arbitrator, umpire, court orauthority shall stand transferred to theTribunal.
23. Shri D.V.Shah has argued that in view of Sec. 13 of the Act, jurisdiction of civil Courts is barred.Looking to sub-sec.(1) of Sec. 13 of the Act all civilsuits are not barred by Sec. 13 of the Act. Shri D.V.Shahhas skillfully argued only for the words " to deal withor decide any question", by breaking the sentence. Onreading Sec. 13(1) of the Act, it is crystal clear thatcivil Court shall have no jurisdiction to deal with ordecide any question which the Tribunal is empowered todeal with and decide under the Act. So only those suitscannot be tried by civil Courts in which the question isof such a nature that, that question can only be decidedby the Tribunal constituted under the Act. Under thecircumstances, it is necessary to know as to what type ofsuits can be tried and decided by the Tribunal. For thispurpose, Sec. 8 will be useful to answer the query. Onreading Sec. 8(1) of the Act, it is crystal clear thatwhere any dispute arises between the parties to the workscontract, either party shall, irrespective of whethersuch works contract contains arbitration clause or not,refer within one year from the date when the dispute hasarisen, such dispute in writing to the Tribunal forarbitration. It may be noted that in the beginning, inbetween words "where any dispute" and "between theparties", word "arises" is used. If intention of thelegislature was to include dispute which had alreadyarisen in the past, possibly the legislature would haveused the word "arose" or words "has arisen". Thus,intention of the legislature is to the effect thatdispute which arises after 1/1/1994 must be referred tothe Tribunal constituted under the Act. Section 8 clearly suggests that it does not apply to disputes whichhad already arisen in the past before 1/1/1994. At thecost of repetition, again it is stated that theprovisions of the Act are given effect, perspectively andnot retrospectively. Under the circumstances, oncombined reading of section 8 and section 13 together, itmakes the position of law clear that whatever disputearises after 1/1/1994 must be referred to the Tribunalconstituted under the Act. At this stage, the provisionsof analogous Act viz. [The] Recovery of Debts Due ToBanks and Financial Institutions Act, 1993 (Act No.51 of1993) (for short the "Act of 1993") are necessary to beexamined in light of provisions of the Act. This Act of1993 came into force on 25th day of June, 1993. Section 18 of the Act of 1993 is analogous to section 13 of theAct. Section 18 of the Act of 1993 reads as follows:
Section 18: Bar of Jurisdiction- On and from theappointed day, no Court or otherauthority shall have, or be entitled toexercise, any jurisdiction, powers orauthority (except the Supreme Court, anda High Court exercising jurisdictionunder Arts. 226 and 227 of theConstitution) in relation to the mattersspecified in section 17.
Section 17 of the Act of 1993 deals withjurisdiction, powers and authority of Tribunal.Sub-section (1) or section 17 reads as follows:
Sub-section(1): A Tribunal shall exercise, on and fromthe appointed day, the jurisdiction,powers and authority to entertain anddecide applications from the banks andfinancial institutions for recovery ofdebts due to such banks and financialinstitutions.
24. Despite the fact that jurisdiction of civil Courthas been ousted by section 18 of the Act of 1993, thelegislature has placed on statute book a specificprovision of Section 31 of the Act. Section 31 of theAct of 1993 reads as follows:
Section 31 Transfer of pending cases.-
(1) Every suit or other proceeding pendingbefore any court immediately before the date ofestablishment of a Tribunal under this Act, beinga suit or proceeding the cause of action whereonit is based is such that it would have been, ifit had arisen after such establishment, withinthe jurisdiction of such Tribunal, shall standtransferred on that date to such Tribunal;
Provided that nothing in this sub-sectionshall apply to any appeal pending as aforesaidbefore any Court.
(2) Where any suit or other proceeding standstransferred from any courts to a Tribunal undersub-section (1),-
(a) the court shall, as soon as may be aftersuch transfer, forward the records ofsuch suit or other proceeding to theTribunal; and
(b) the Tribunal may, on receipt of suchrecords, proceed to deal with such suitor other proceeding, so far as may be, inthe same manner as in the case of anapplication made under section 19 fromthe stage which was reached before suchtransfer or from any earlier stage or denovo as the Tribunal may deem fit.
25. If really an intention of the legislature was totransfer all civil suits even filed before 1/1/1994 tothe Tribunal constituted under the Act, the provisionssimilar to section 31 of the Act of 1993, would have beenincorporated in the Act. An absence of such type ofsection analogous to section 31 of the Act of 1993clearly suggests that provisions of the Act will not beapplied to the civil Suits filed prior to 1/1/1994.
26. A futile attempt has been made by Mr. D.V.Shah,learned Advocate for the respondent to apply Sec. 21 ofthe Gujarat Public Works Contracts Disputes ArbitrationTribunal Act, 1972. Caption of Section 21 clearlysuggests that Section 21 will be applicable to all theproceedings in relation to the disputes arising under theprovisions of Arbitration Act. These are not theproceedings under the Arbitration Act and therefore, inmy view, section 21 of the Gujarat Public Works ContractsDisputes Arbitration Tribunal Act, 1972 cannot be madeapplicable to the facts of the present case.
27. The learned Judge of the trial Court has referredto in his judgment, a decision in case of Soni VrajlalJethalal Vs. Soni Jadavji Govindji Decd. and Ors.,reported in 1972 G.L.R. 555. This authority is on thepoint where a suit is instituted in one court and if thatcourt is of the opinion that he had no jurisdiction toentertain the suit, it is not open to that court todismiss the suit on that count, but the court is requiredto proceed under Rule 10, C.P.Code, directing that theplaint should be returned to the plaintiff forpresentation to the proper Court. This authority will beapplicable only if on the date of filing of the suit,civil court had no jurisdiction to entertain the suit.If subsequent to filing of the suit, some proceeding hastaken place and if jurisdiction of civil court ischallenged, then in my view, instead of returning theplaint to the plaintiff for presentation to the properCourt, the Judge ought to have transferred the whole suitto the Tribunal. Here in this case, the learned Judge ofthe trial Court has not attempted to apply provisions ofOrder 7 Rule 10, C.P.C. in its correct perspective.Admittedly, on the date of filing of the suit, civilcourt had the jurisdiction. According to the learnedJudge, on coming into force the Act, Civil Court ceasesto have jurisdiction over the suit. In this set of factsand circumstances of the case, the learned Judge of thetrial Court ought to have transferred the whole suit tothe Tribunal by assigning reasons sustainable in law,instead of returning the plaints.
28. Shri D.V.Shah, learned Advocate for the respondenthas cited following authorities:
(1) M/s. Sardar Construction Co. Vs. State ofGujarat, reported in AIR 1999 SC 2422. This authority isnot applicable to the present case because in that citedcase, award under the Arbitration Act had already beenpassed prior to 1/1/1994 and for that award, proceedingswere pending. Looking to section 8 and section 21 of theAct, the Hon'ble Supreme Court held as under:
" ........the arbitration proceedings in relationto the dispute were pending before the Court andhence the High court has rightly transferredthese proceedings to the Tribunal........"
Under the circumstances, arguments of Mr.D.V.Shah are not acceptable to this case, because section 21 applies to all proceedings under the Arbitration Actand not to the proceedings under the Civil ProcedureCode.
(2) Sardar Patel University Vs. Patel & Co.reported in 1999(2), 40(2) GLR 1264. In this case, amoot question arose for determination as to whetherSardar Patel University is a Public Undertaking withinthe meaning of clause (ii) of sub-sec.(1) of section 2 ofthe Act. The Court held-
" Sardar Patel University is a body corporatecontrolled by the State Government and therefore,it is a Public Undertaking within the meaning ofclause (2) of sub-section (1) of section 2 of theAct.
In that case, this Court did not decide anythingabout the suit filed prior to 1/1/1994. In that case,awards were passed by Arbitrators on 16/12/1992 and boththe Arbitrators had submitted the awards to the CivilCourt, Anand under Sec. 14(2) of the Arbitration Act, 1940on 19/9/1992, and therefore, in view of Sec. 21 of theAct, the proceeding under the Arbitration Act was rightlytransferred to the Tribunal. Thus, the facts andcircumstances of that case are totally different to thepresent case.
(3) Munshi Ram and others Vs. Municipal Committee,Chheharta, reported in AIR 1979 SC 1256,, the Hon'bleSupreme Court held as under:
"Where a Revenue Statute provides for a personaggrieved by an assessment thereunder, aparticular remedy to be sought in a particularforum, in a particular way, it must be sought inthat forum and in that manner, and all otherforums and modes of seeking it are excluded."
In view of the above, there is no analogous Actto Sec. 31 of the Act of 1993 in the present case. Thus,this authority will not be applicable to the present setof facts.
29. The suits were filed in the year 1989 and the Acthas come into force from 1/1/1994, and therefore, thejurisdiction of Civil Court cannot be said to have beenousted, more particularly when there is no provisionanalogous to Sec. 31 of the Act of 1993 in the Act. Moreover, the effect of provisions of the Act of 1993 isgiven prospectively and not retrospectively, andtherefore, also jurisdiction of Civil Court cannot besaid to have been ousted in view of Sec. 13(1) of the Act.
30. In my view, the learned Judge of the trial Courthas grossly erred in interpreting Sec. 13(1) of the Act of1993 and passed illegal order of returning the plaints tothe plaintiff for presentation to the proper Court. Atthis stage, this Court observes that the learned Judge ofthe trial Court has not followed the mandatoryrequirements of Order 14 Rule 2(1) of the Code of CivilProcedure. As per Order 14 Rule 2(1), C.P.C. he oughtto have decided the suits on all issues. Instead of it,he picked up an issue with regard to jurisdiction of theCourt for which he did not form an opinion that byanswering particular issue, whole suit would be finallydecided, and therefore, he has not complied with theprovisions of Order 14 Rule 2(1), C.P.C. before framingparticular issue referred to in the impugned order. Hewas required to form an opinion that issue is aPreliminary Issue which needs consideration at theearliest. Here in this particular case, he straightwayframed issue and answered the same in such a way that theplaintiff's suit is put to "nowhere" and passed such anorder by wrong exercise of powers under Order 7 Rule 10,C.P.C.
31. In view of what is discussed hereinabove, theseappeals deserve to be allowed. The common impugned orderdated 29/9/1998 below Ex.27 passed in main Special CivilSuit No. 321 of 1989 (together with Special Civil SuitNos. 322 of 1989 to 324 of 1989), by the learned 7thJoint Civil Judge (S.D.), Nadiad, is set aside. In viewof the fact that the suits are of the year 1989, they arerequired to be expedited at the earliest. The learnedJudge of the trial Court is directed to decide anddispose of aforesaid suits without being influenced bythis order within nine months from the date of receipt ofwrit of this order of this Court. There shall be noorder as to costs.
32. Mr. Dharmesh V. Shah, learned Advocate for therespondents requests this Court to stay the operation andimplementation of this judgment as respondents want tomove higher forum to challenge this judgment. In view ofthe facts and circumstances of the case, request isgranted and period of six weeks is granted from the dateof receipt of writ of this order to the respondents toapproach the higher forum. Till then, operation of thisjudgment is stayed.