TMI Blog2017 (1) TMI 1807X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 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 6th 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. This Court has to consider whether at this stage, when the issues under Order XIV Rule 2 of the CPC having already framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 16th 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 eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the said order dated 27th January 1988 came to be dismissed on 3rd November 1988. 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 30th 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the owner nor had any right in respect of the suit property. 12. The respondent nos.1 and 2 also applied for order, decree and declaration that the order passed by the Collector on 5th 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 24th February 2012 inter alia praying for various interim reliefs against some of the defendants including the appellant. On 4th 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. 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 26th June 2012 nor revived the said application (Exhibit-34) at any point of time. 17. The learned trial Judge passed an order on 16th 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 19th 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 Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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 final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 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.14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned 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 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 Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 12th 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, with these facts in hand, this Court has to consider (i) whether the issue of jurisdiction raised under Section 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 26th 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 Dhirend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by a defendant. The defendant may conceivably raise 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 adinterim 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 jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of the notice of motion. It is held that the objection to 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttracted only when the conditions stated in that provisions are satisfied at the time when question of jurisdiction is 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed by both the parties. 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once raised expeditiously and before deciding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f in the counter claim but has even subsequently participated 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 propri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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