1 W.P.No.8206/12
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.8206 OF 2012.
Kisanrao S/o Raghvendrarao Kulkarni,
Age 88 years, Occ.Agri. &
bond writer R/o Dapka (Gondopant),
Tq. Mukhed, Dist.Nanded at present
R/o Shantinagar, Degloor, Tq.
Degloor, Dist.Nanded. ... Petitioner.
Versus
1. Sunil S/o Vyankatrao Kulkarni,
Age 38 years, Occ.Agri.,
R/o Dapta (Gundopant), Tq.
Mukhed, Dist.Nanded.
2.Sudhakar S/o Kisanrao Kulkarni,
Age 51 years, Occ.Agri. & Service,
R/o Shantinagar, Degloor,
Tq.Degloor, Dist.Nanded.
3. Devrao S/o Santuka Sangve,
Age 58 years, Occ.Labour,
R/o Dapka (Gundopant), Tq.Mukhed,
Dist.Nanded. ... Respondents.
...
Mr.S.K.Kulkarni, advocate holding for
Mr.P.K.Deshmukh, advocate for the Petitioner.
Mr.M.V.Deshpande, advocate for the Respondents.
...
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2 W.P.No.8206/12
CORAM : S.V.GANGAPURWALA,J.
Date : 06.11.2012.
JUDGMENT :
1. The Respondent/plaintiff has filed suit bearing RCS No.79/2008 against the present petitioner and others for declaration of ownership and perpetual injunction in respect of 5 hectares 16 ares portion from Gat No.688, old S.No.207 of village Dapka, Tq.Mukhed.
2. The petitioner by filing the Written Statement denied the claim of the plaintiff. The petitioner averred that the earlier litigation between the plaintiff No.1's father and the petitioner would operate as res-judicata within the meaning of Section 11 of the C.P.C. The Respondents had also filed application Exh.5.
3. The petitioner filed an application purportedly invoking Section 9-A of the C.P.C.
for framing the issue of resjudicata vis-a-vis jurisdiction. The said application was 'filed' by the Court. Aggrieved thereby, the present petition.
::: Downloaded on - 09/06/2013 19:22:36 ::: 3 W.P.No.8206/124. Earlier the petitioner had also filed an application requesting the trial Court to frame issue U/s 11 of the C.P.C. and decide the said issue before hearing of temporary injunction application. The same is also rejected.
5. Mr.Kulkarni, learned counsel for the petitioner submits that the present suit filed by the plaintiff is barred by the principle of res-
judicata in view of the judgment and decree passed in previous suit bearing RCS No.60/1975.
The said suit was filed by the present petitioner against the Respondent No.1's father and in the said suit, the petitioner has been held and declared owner and in possession of the suit land. The said judgment is confirmed upto the High Court. The learned counsel submits that the principle of res-judicata debars the Court from exercising its jurisdiction and the said issue will be an issue concerning the jurisdiction of the Court and as such is required to be framed U/s 9-A of the C.P.C. as a preliminary issue.
The learned counsel relies on the judgment of the Apex Court in a case of "Bhanu Kumar Jain Vs. ::: Downloaded on - 09/06/2013 19:22:36 ::: 4 W.P.No.8206/12 Archana Kumar and another" reported in AIR 2005 Supreme Court 626(1). The learned counsel also relies on the judgment of the learned Single Judge of this Court in a case of "Thomas M.Periera and another Vs. Anna R. D'Silva and others" reported in 1992 B.C.J. 38, to contend that an objection U/s 12 in effect raises a question of jurisdiction to maintain the suit.
If the suit is not maintainable, the Court will have no jurisdiction to go on with the suit and as such will have to be decided as a preliminary issue U/s 9-A of the C.P.C.
6. The learned counsel further submits that when an objection to the jurisdiction is raised, it is duty of the Court to frame the said issue as a preliminary issue U/s 9-A of the C.P.C., more particularly, as temporary injunction application is pending. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Arjun Dada Gadage Vs. Mallappa Gurappa Chougule and another" reported in AIR 2003 Bombay 441 and in a case of "Radhakishin N. Advani Vs. Mrs. Sheila ::: Downloaded on - 09/06/2013 19:22:36 ::: 5 W.P.No.8206/12 Gobind Mirchandani and another" reported in AIR 1977 Bombay 35(1).
7. Mr.Deshpande, learned counsel for the Respondent/plaintiff submits that while dismissing the earlier application, the Court has observed that the boundaries of the suit property in the earlier suit appears to be different as that of the present suit and it would require evidence to be led by the parties.
8. According to the learned counsel the issue of jurisdiction as contemplated U/s 9-A of the C.P.C. is question of jurisdiction as contemplated U/s 9 of the C.P.C. The learned counsel relies on the judgment of the Apex Court in a case of "State of A.P. Vs. Manjeti Laxmi Kantha Rao (Dead) by L.Rs. and others" reported in (2000) 3 Supreme Court Cases 689 and the judgment of the Apex Court in a case of "Konda Lakshmana Bapuji Vs. Govt. of A.P. and others"
reported in (2002) 3 Supreme Court Cases 258. It is only if the jurisdiction of the Court is expressly or impliedly barred by the other ::: Downloaded on - 09/06/2013 19:22:36 ::: 6 W.P.No.8206/12 statute then only the said question can be considered U/s 9-A of the C.P.C. The learned counsel contends that the Court has rightly dealt with the matter and no case for interference is made out.
9. With the assistance of the learned counsels, I have gone through the orders.
10. It would be seen that earlier, the petitioner had filed an application for dismissing the suit as barred by Section 11 of the C.P.C. The Court while deciding the said application framed the issue of res-judicata and directed that the said issue shall be decided at the final disposal of the suit. Thereafter, the present application is filed U/s 9-A of the C.P.C, contending that the issue of res-judicata also goes to the root of the jurisdiction of the Court and has to be decided U/s 9-A of the C.P.C.
The Court did not allow the said application and passed the order 'filed'.
11. The trial Court while dealing with ::: Downloaded on - 09/06/2013 19:22:36 ::: 7 W.P.No.8206/12 earlier application seeking framing of the issue of res-judicata as preliminary issue has observed that boundaries of suit property in earlier suit appear to be different. The Court has framed issue of res-judicata to be tried along with all other issues.
12. The moot question is whether the issue of res-judicata can be framed and tried within the meaning of Section 9-A of the C.P.C. It can not be a matter of debate that question of res-
judicata, limitation are matter of rules of procedure. On account of the principle of res-
judicata, the Court would not try the issue which was direrctly and substantially in issue in a previous suit. There are many instances of rules of procedure by virtue of which the Court would not grant relief to a party in a suit, such as the suit being barred by limitation, the relief being barred by virtue of provisions of Order 2 Rule 2 of the C.P.C., res-judicata, etc. Section 9-A of the C.P.C. reads as under :
"9-A. Where at the hearing of ::: Downloaded on - 09/06/2013 19:22:36 ::: 8 W.P.No.8206/12 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 ig of any 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 issue before granting or setting aside the order granting the interim relief.
Any such application shall be heard ::: Downloaded on - 09/06/2013 19:22:36 ::: 9 W.P.No.8206/12 and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned 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."
The learned Single Judge of this Court in a case of "Popat Jaysingh Rajpure Vs. State of Maharashtra and others" reported in 2012 (5) Mh.L.J. 884, had observed that the issue of jurisdiction encompasses within itself the issue as regards (a) territorial jurisdiction; (b) pecuniary jurisdiction; and (c) the jurisdiction relating to considering the subject matter of the suit. It was further observed by the learned Single Judge that the issue of jurisdiction has to be addressed by considering the frame of the ::: Downloaded on - 09/06/2013 19:22:36 ::: 10 W.P.No.8206/12 suit as it is, as otherwise the entire object of introducing Section 9-A of the C.P.C. would be lost. In said case it was held and observed that whether certain defendants can be joined or have been wrongly joined to the suit is not an issue which would be within the domain of the trial Court while deciding the jurisdictional issue raised U/s 9-A of the C.P.C. In the said case, the trial Court had dismissed the suit against the defendants Nos.1 to 8 on the ground that it had no jurisdiction against said defendants.
13. Provisions of Order XIV Rule 2(2) of the C.P.C. enjoins the power to the Court to frame preliminary issue in two contingencies as enshrined in the said provision. The said sub-
rule (2) of Rule 2 of Order XIV reads as under :
Rule 2. Court to pronounce judgment on all issues. - (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-
rule (2), pronounce judgment on all ::: Downloaded on - 09/06/2013 19:22:36 ::: 11 W.P.No.8206/12 issues.
(2) Where issues both of
law and of fact arise in the same
suit, and the Court is of opinion
that the case or any part thereof
may be disposed of on an issue of
law only, it may try that issue
first if that issue relates to -
ig (a) the jurisdiction of
the Court, or
(b) a bar to the suit
created by any law for the time
being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
Perusal of the said provision it is manifest that if a suit can be disposed of on an issue of law relating to jurisdiction of the Court or a bar to ::: Downloaded on - 09/06/2013 19:22:36 ::: 12 W.P.No.8206/12 suit created by any law for the time being in force, the Court may decide the issue as preliminary issue. The issue of jurisdiction as contemplated in Order XIV Rule 2 (2)(a) is an issue contemplated U/s 9-A of the C.P.C. The issue of res-judicata would be a mixed question of law and fact and not a pure question of law.
At the most issue of res-judicata could be the one contemplated under Order XIV Rule 2(2) (b) of the C.P.C. i.e. bar to the suit created by any for the time being in force. The said issue under order XIV Rule 2(2)(b) of the C.P.C. would not be referable to Section 9-A of the C.P.C.
14. The Apex Court in a case of "Bhanu Kumar Jain Vs. Archana Kumar and another"
referred supra has observed that principle of resjudicata debars a Court from exercising jurisdiction. So also the Apex Court in "Lachhman Singh (Deceased) through legal representatives and others Vs. Hazara Singh (Deceased) through legal representatives and others" reported in (2008) 5 Supreme Court Cases 444, had observed that limitation is a question ::: Downloaded on - 09/06/2013 19:22:36 ::: 13 W.P.No.8206/12 of jurisdiction. Still, the Apex Court in case of "Gunwantbhai Mulchand Shah and others Vs. Anton Elis Farel and others" reported in 2008 Supreme Court 1556, has held that normally the issue of limitation could be dealt with only after evidence is taken and not a preliminary issue. The learned Single Judge of this Court in case of "Fedroline Anthoney Joseph Vs. Vinod Vishanji Dharod and Hazol Rodriques and others"
reported in 2002 (3) Mh.L.J.865, held that issue of limitation can not be regarded as an objecton as to jurisdiction of the Court, so as to invoke Section 9-A of the C.P.C.
15. For deciding the issue of res-judicata the evidence will have to be led. The issue of res-judicata is mixed question of law and fact.
The parties will have to adduce evidence about the identity of the properties in both the suit i.e. earlier adjudicated suit and present suit, so also the Court will be required to consider the prayer involved in the earlier suit, whether the issue involved was directly and substantially in issue in earlier suit or colateral in issue.
::: Downloaded on - 09/06/2013 19:22:36 ::: 14 W.P.No.8206/12The competency of the Court deciding earlier suit etc., all these facets will have to be considered by the Court. It is not such an issue which is contemplated U/s 9-A of the C.P.C.
16. A distinction will have to be made in respect of a suit without jurisdiction and the suit wherein the Court is refrained from trying the suit on the basis of various other principles such as res-judicata, limitation, bar of Order 2 Rule 2 of the C.P.C. etc. If the suit is barred by any law, the same can also be dealt with U/o VII Rule 11 of the C.P.C., or a issue can be framed and dealt U/o XIV Rule (2)(2)(b) of the C.P.C. but certainly not U/s 9-A of the C.P.C.
17. In light of the above, the Writ Petition is dismissed. However, there shall be no order as to costs.
(S.V.GANGAPURWALA,J.) asp/office/wp820612 ::: Downloaded on - 09/06/2013 19:22:36 ::: 15 W.P.No.8206/12 ::: Downloaded on - 09/06/2013 19:22:36 :::