Kisanrao vs Sunil
2012 Latest Caselaw 348 Bom

                            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.

4. 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.

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

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

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

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







       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

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

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

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

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

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.

The 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.)

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