Bombay High Court
Mumbai International Airport ... vs Edward Alias Adward Paul Machado & ... on 4 December, 2013
Bench: R.M. Savant
wp-9577-13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9577 OF 2013
Mumbai International Airport Pvt. Ltd. ..Petitioner
Vs.
Edward alias Adward Paul Machado & Ors. ..Respondents
Mr. Vineet Naik Senior Advocate with Ms Shoma Maitra and Mr. Prabhav
Shroff i/b Wadia Ghandy & Co. for the Petitioner
Mr. S. U. Kamdar, Senior Advocate with Mr. Vishal Kanade i/b Negandhi
Shah & Himayatullah for Respondent No.1
Mr. Rakesh Singh i/b M. V. Kini & Co. for the Respondent No.2
Mr. D. P. Singh for the Respondent No.3
ig CORAM : R. M. SAVANT, J.
DATE : 4th December 2013
ORAL JUDGMENT
1 Rule, with the consent of the Learned Counsel for the parties made
returnable forthwith and heard.
2 The Writ Jurisdiction of this Court under Article 227 of the Constitution
of India, is invoked against the order dated 1-3-2013, passed by the Learned
Judge of the City Civil Court, Dindoshi, Mumbai to the extent it decides the
application raising the issue of limitation and questioning the inherent
jurisdiction of the City Civil Court, Bombay to entertain the Suit, is concerned.
By the said order, three issues were decided namely the pecuniary jurisdiction
of the City Civil Court, Bombay to entertain the Suit, the issue of bar of
limitation and the inherent jurisdiction of the City Civil Court Bombay. As
indicated above the challenge is restricted to the decision rendered on the two
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other issues other than the issue of pecuniary jurisdiction.
3 The Respondent No.1 herein is the original Plaintiff who has filed the
Suit in question for an injunction apprehending that the Petitioner/Defendant,
as also the other Defendants to the Suit would dispossess him from the suit
property. The Plaintiff by way of an amendment vide Chamber Summons
No.513 of 2011 which was allowed on 5-11-2011 included a prayer seeking
declaration of perfection of title by adverse possession. Against the order
allowing the amendment application, the matter had reached this Court by
way of a Writ Petition No.10404 of 2011 filed by the Petitioner by order dated
12-12-2011 this court had dismissed the said Petition. Against the said
dismissal the Petitioner herein had carried the matter to the Apex court by way
of Special Leave Petition No.1038 of 2012, the Apex Court by order dated 12-1-
2012, confirmed the order passed by this Court and thereby upheld the
amendments which were allowed. However, the Apex Court granted liberty to
the parties to take up all points in issue including the question of jurisdiction
and limitation. By the said order, the Apex Court also expedited the hearing of
the Suit and directed that the same to be disposed of within 6 months. It
appears that issues in the Suit came to be framed on 14-2-2012 and thereafter
the Petitioner herein filed an application that the issues relating to the inherent
jurisdiction, limitation and the pecuniary jurisdiction of the City Civil Court,
Bombay be tried as preliminary issues under Order 14 Rule 2 of the CPC. It
appears that the said application filed by the Petitioner was consented to by the
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parties to the Suit. The Trial Court accordingly allowed the said application
filed by the Petitioner and decided to take up the said three issues as issues
which could be decided under Order 14 Rule 2 of the CPC. Pursuant thereto,
the Petitioner and the Respondent No.2 being Defendant Nos.2 and 3 were
directed to lead evidence first. It appears that the evidence was lead on behalf
of the Petitioner i.e. the Defendant No.3 in the Suit and the first witness of the
Petitioner was also cross-examined at length and the said cross-examination
was completed. The affidavit of evidence of the second witness was also filed.
It seems that the Respondent No.1 herein i.e. the original Plaintiff filed Notice
of Motion No.924 of 2012 seeking review of the order dated 27-2-2012 on the
ground that he had been incorrectly advised to give consent. The said Notice
of Motion filed by the Respondent No.1 was dismissed by the Learned Judge of
the City Civil Court Bombay by imposing costs of Rs.10,000/-. The Respondent
No.1 challenged the said order by way of Writ Petition No.3863 of 2012 which
Petition came to be dismissed and thereafter the Special Leave Petition filed by
the Respondent No.1 in the Apex Court came to be dismissed by the Apex
Court by order dated 6-6-2012. The parties thereafter completed their evidence
in respect of the said three issues and the parties proceeded to make their
submissions on the said three issues. The Trial Court has by the impugned
order dated 1-3-2012, has held that considering the subject matter of the Suit
where the Plaintiff has claimed perfection of title by adverse possession and
considering the value of the land involved in the Suit, the subject matter of the
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Suit would not lie within the pecuniary jurisdiction of the City Civil Court
Bombay and therefore returned the plaint under Order 7 Rule 10A of the CPC,
for presentation to the Court having jurisdiction. The Trial Court also held that
the Suit as filed is within limitation and also held that the City Civil Court
Bombay would have inherent jurisdiction to entertain the Suit. It is not
necessary to dilate on the findings recorded by the Trial Court on the said two
issues looking to the nature of the challenge to the order passed as also in view
of the nature of the order that is to be passed in the above Petition. As
indicated above, the impugned order is challenged to the extent that it decides
the issue of limitation as well as the inherent jurisdiction of the City Civil Court
Bombay after holding that it does not have the pecuniary jurisdiction to
entertain the Suit.
4 Heard the Learned Counsel for the parties. The Learned Senior Counsel
for the Petitioner Mr. Naik principally contended that once the Trial Court came
to a conclusion that it is coram non judice it ought not to have proceeded to
render its decision on the other two issues namely the issues of limitation and
the inherent jurisdiction. The Learned Senior Counsel Mr. Naik in support of
the said contention would seek to rely upon the Judgment of the Apex Court
reported in AIR 1965 SC 338 in the matter of Aathmanathaswami
Devasthanam Vs. K. Gopalaswami Ayyangar wherein the Apex Court has
observed that since the Civil Court did not have the jurisdiction it could not
have decided any question on merits. The Learned Senior Counsel then relied
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upon the Judgment of a Learned Single Judge of this Court reported in
2004(1) MhLJ 50 reported in Shreyans Industries Vs. State of U.P. & Ors.
wherein the principle enunciated by the Apex Court has been followed by the
Learned Single Judge of this Court.
5 Per contra, the Learned Senior Counsel for the Respondent No.1 would
submit that the Petitioner having proceeded with the other two issues before
the Trial Court has thereby acquiesced in the adjudication of the said two
issues. The Learned Counsel would contend that the other two issues namely
the issue of limitation as well as the inherent jurisdiction are the issues which
concerned the jurisdiction of the City Civil Court Bombay to entertain the Suit
and therefore the Trial Court was required to decide the said issues as they
were raised by the Petitioner herein i.e. the Defendant No.1.
6 Having heard the Learned Senior Counsel for the parties, I have
considered the rival contentions. No doubt in the instant case the issues which
are raised are the issues which go to the root of the matter and can be said to
be the issues which impinge upon the jurisdiction of the Court to entertain the
Suit. However, the issue of pecuniary jurisdiction can be said to be the defining
issue as the other two issues can be only tried by the Court which has the
jurisdiction to entertain the Suit. This is a case where three issues which can be
said to be the issues of jurisdiction were raised and the issue of pecuniary
jurisdiction was not a stand alone issue. Hence once the Trial Court came to a
conclusion that it did not have the pecuniary jurisdiction to entertain the Suit it
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ought not to have proceeded to decide the other two issues, rendering a
decision on the other two issues when it did not have the pecuniary
jurisdiction, would result in the said issues being decided by a Court which is
coram non judice. In the said context, the Judgment of the Apex Court in case
of Anthmanthaswami (Supra) can be gainfully referred to paragraph 13 of
the said report is material and is reproduced hereinunder:
13. The last point urged is that when the Civil Court had no
jurisdiction over the suit, the High Court could not have
dealt with the cross-objection filed by the appellant with
respect to the adjustment of certain amount paid by the
respondent. This contention is correct. When the Court had
no jurisdiction over the-subject matter of the suit it can- not
decide any question on merits. It can simply decide on the
question of jurisdiction and coming to the conclusion that it
had no jurisdiction over the matter had to return the plaint.
The Apex court has laid down the proposition that once the court comes
to a conclusion that it had no jurisdiction it could not have dealt with the Suit
on merits. The said proposition of the Apex Court has been followed by a
Learned Single Judge of this court in Judgment of Shreyans (supra) paragraph
6 of the said report is material and is reproduced hereinunder :
6. I have considered the contentions canvassed by the
learned Counsel for the parties. On the backdrop of the
above referred facts, it is evident that the plaint was
returned to the appellant/plaintiff under Order VII Rule 10
of Code of Civil Procedure since the trial Court had held
that it does not have jurisdiction to try the suit and,
therefore, appellant is required to present the plaint in the
competent Court having jurisdiction to try the suit. Once
the Court comes to the conclusion that it has no
jurisdiction to entertain the suit, the only course open to
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the Court is to return the plaint to the plaintiff to be
presented in the competent Court and any finding recorded
on merits of the matter would be of no consequence. If
plaint is returned for want of jurisdiction and the same
Court also records findings on merits, such findings are
without jurisdiction and null and void. Similarly, the very
purpose of returning the plaint for want of jurisdiction
would be frustrated and that would also foreclose the issue
in the plaint, which was returned to the plaintiff to be
presented to the competent Civil Court. In view of this
legal position, the findings recorded by the trial Court on
issue Nos. 1, 2 and 3 are without jurisdiction and it will be
open for the competent Court at Lucknow to consider the
entire claim of the appellant/plaintiff on its own merits. In
the circumstances, the appellant is entitled to take back the
plaint from the trial Court at Nagpur and file the same in
the appropriate Court at Lucknow within a period of ninety
days from today, failing which the suit shall be deemed to
have been dismissed.
7 In my view, therefore, once the Trial Court came to a conclusion that did
not have the pecuniary jurisdiction to entertain the Suit it ought not to have
proceeded for rendering its decision on the other two issues and ought to have
left the said issues to be decided by the Court which has the pecuniary
jurisdiction to entertain the Suit. The impugned order to the extent it renders
the decision on the issue of limitation and the inherent jurisdiction of the City
Civil Court would therefore have to be quashed and set aside and is
accordingly quashed and set aside. The impugned order would therefore be
restricted to the decision rendered on the issue of pecuniary jurisdiction only.
The Petitioner would be at liberty to raise the issue of bar of limitation and the
inherent jurisdiction before this Court where the Suit is already filed pursuant
to the impugned order. The concerned Court would have to de-novo consider
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the said issues.
8 Rule is accordingly made absolute in the aforesaid terms with parties to
bear their respective costs of the Petition.
9 At this stage, the Learned Counsel appearing for the Respondent No.1
seeks stay of the instant order to approach the Apex Court. In the facts and
circumstances of the case, the instant order is stayed for a period of 6 weeks
from date.
ig [R.M.SAVANT, J]
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