TaxTMI 
TaxTMI 
2017 (1) TMI 1807
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.... 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 effect from 1st August 1863. It was the case of the appellant that by two Deeds of Assignment dated 22nd March 1945 and 5th April 1945, the appellant became lessee in respect of various lands incl....
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....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, the name of the appellant was restored back to the other rights column until new further entries were effected for implementing the provisions of Section 3 of the Salsette Act. 10. The Collector, Thane th....
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....ull 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 Court to entertain, try and dispose of the said suit filed by the respondent nos.1 and 2 under Section 158 of the Maharashtra Land Revenue Code, 1966. The appellant also raised various other issues including the i....
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....ation 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 also rejected the application of the appellant (Exhibit-29) for interim reliefs by the said order dated 16th May 2013. 18. Being aggrieved by the said order dated 16th May 2013 passed by the learned trial Judge in the said a....
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.... 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 could proceed with the application filed by the respondent nos.1 and 2 herein for setting aside the order of the learned trial Judge for not taking written statement in the counter claim on record which was proposed to be held on 14th ....
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....ion 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 & Ors. and more particularly on paragraphs 10, 11 and 16 in support of the submission that provisions of Section 9A of the CPC are mandatory and once the appellant herein had raised an issue under Section 9A of the CPC, the learned trial Judge....
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....nal 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 finally disposing of the applications (Exhibits-5 and 29). He submits that the appellant did not impugn the said order dated 26th June 2012 till date. He submits that the learned trial Judge thus rightly disposed of the applications (Exhibits-5 and 29) fi....
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....n 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 includes the issue of limitation and also the issue of 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. 36. It is submitted that the appellant thus cannot at th....
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.... 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.148 of 2012 in support of his submission that the appellant has proceeded with the application (Exhibit-5) filed by the respondent nos.1 and 2 and also the application (Exhibit-29) filed by the appellant on its own merits and having lost in those two applications has file....
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....e 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 December 2011 clearly indicates that Supreme Court while disposing of the said Special Leave Petition had clarified that the Civil Court shall be at liberty to decide the legality, correctness and propriety of the order passed by the Collector in accordance with law without being influenc....
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....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 filed an application for seeking amendment to the ground of challenge in the year 2016. The said application was opposed by the respondent nos.1 and 2 on various grounds. This Court while allowing the said application for amendment made it clear that though the amendment was being permitted wh....
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....f 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 Dhirendra Nath Gorai and Ors.(supra) has held that when the Court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. It is held that a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of t....
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....tuation 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 jurisdiction arises bonafide or whether it is wholly frivolous. It is clarified by the Division bench that this would contemplate only a minimal enquiry by the Court, since if at that stage a comprehensive adjudication were to be contemplated, that would virtually defeat the provisions of Section 9A. The provision....
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...., 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 this Court in the case of Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. (supra) has held that an objection regarding jurisdiction of the Court under Section 9A of the CPC must be raised at the very initial stage and once such an objection is raised, the law requires that the Court shall proceed to determine the is....
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....d 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 the issue as to whether the issue of jurisdiction raised under Section 9A of the CPC could be waived by the defendant no.1 or not is concerned, there is no dispute that the issue of jurisdiction was raised by the appellant in the written statement itself. Division Bench of this Court in the case of Mukund Ltd. (supra) and the ....
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....rmissible 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 has already framed issues under Order XIV Rule 2 of the CPC. 68. It is not in dispute that the learned trial Judge has already framed various issues including the issue of jurisdiction under Order XIV Rule 2 of the CPC on 13th June 2016. The appellant has not challenged the said order passed by the learned trial Judge. On the con....
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....een 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 other law should or should not be treated as preliminary issue. 72. It is held that this judicial discretion of the Court is then in no way controlled by the provisions of Section 9A of the CPC as the stage indicated by the legislative mandate under Section 9A is over. Division Bench has held that once the stage contemplated under Sec....
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....ue 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 propriety of the order passed by the Collector in the suit proposed to be filed by the respondent nos.1 and 2 herein. In my prima facie view, in view of the judgment of the Supreme Court granting such liberty to the trial Court to decide the legality, correctness and propriety of the order passed by the Collector, the issue of jurisdiction raised by ....