Jagdish Hari Thatte & Ors. v. Municipal Corporation Of Greater Bombay & Anr.

Sathe S.R, J.:— The following issue is referred to this Division Bench for consideration.

“While deciding the suit finally after parties have led evidence on all issues when a Court comes to the conclusion that it lacks jurisdiction to hear and decide the suit, whether it is necessary for the Court to decide other issues on merits at the time of or before passing the order of return of plaint.”

2. It would be worthwhile to mention the facts giving rise to the above reference. Jagdish Hari Thatte and 6 others filed L.C Suit No. 3856 of 1985 against the Municipal Corporation of Greater Bombay and State of Maharashtra in Bombay City Civil Page: 578Court for declaration and permanent injunction restraining the defendants from implementing the threatened action in their several notices. The defendant No. 1 filed its written statement and raised several contentions. One of the said contention was that the City Civil Court has no jurisdiction to try the said suit in view of the provision of section 149 of the Maharashtra Regional and Town Planning Act, 1966 (hereafter referred to as MRTP Act).

3. On the pleadings of the parties the learned triad Judge framed as many as six issues. One of the said issues was “Does the defendant prove that this Court has no jurisdiction under section 149 of the MRTP Act, as alleged in the written statement”.

4. On all the issues framed by the Court, parties adduced evidence and the matter was fully heard. While deciding the suit and writing final judgment the learned trial Judge first dealt with the issue regarding jurisdiction and came to the conclusion that in view of the provisions of section 149 of the MTRP Act, the suit filed by the plaintiff was not tenable. He, therefore, observed that under such circumstances it was not necessary for him to deal with the other issues and therefore without recording finding on the other issues, he directed that plaint be returned to the plaintiffs for presentation before the proper forum.

5. Being aggrieved by the said decision, the plaintiff filed Appeal against Order No. 1107 of 2001. When the said A.O was heard by the learned Single Judge, of this Court, the learned Advocate for the appellant made several submissions. One of which was, once the stage of deciding preliminary issue of jurisdiction under section 9-A of the Code of Civil Procedure, 1908 (hereafter referred to as the said Code) was over, and once the Court decides not to take up the issue of jurisdiction as a preliminary issue, the trial Court cannot pass the order returning the plaint at the time of the final hearing. In support of this submission the learned Advocate for the appellant plaintiff placed reliance on the case (Kusumkant T. Nagda v. Mariambi w/o. Ibrahim), 2005 (3) Bom. C.R 340 : 2005 (1) All M.R 255. That was a case where issue regarding jurisdiction was not tried as a preliminary issue and parties adduced evidence and the matter was fully heard and while deciding the same finally, the learned trial Judge came to the conclusion that the City Civil Court had no jurisdiction to decide the suit in view of the provisions of section 28 of the Bombay Rent Act and therefore plaint was returned for presentation to proper Court without answering the other issues on which parties had led evidence. The said order was challenged before the learned Single Judge of this Court and the learned Single Judge (Coram Mrs. Nishita Mhatre, J.) came to the conclusion that the trial Court ought to have decided all issues since evidence was led on all issues. The stage of deciding the preliminary issue under section 9-A had long gone by and it was therefore erroneous on the part of the trial Court to return the plaint without deciding the other issues framed by it.

6. When the above cited reported ruling was brought to the notice of the learned Single Judge who was hearing the Appeal from Order No. 1107 of 2001, the learned Single Judge felt that when the Court records the finding on issue of jurisdiction against the plaintiff, the Court lacks jurisdiction to decide the other issues on merits and even if findings are recorded by the Court on the issue relating to the merits, the said findings wall be of the Court having no jurisdiction and so under such circumstances, it is not necessary for the trial Court to record finding on all the issues. The learned Single Judge was therefore of the opinion that the view taken in the case of Kusumkant T. Nagda v. Mariambi needs reconsideration. The learned Single Judge, therefore, framed the above mentioned issue and expressed that the said issue requires consideration by a larger Bench and therefore directed the office to place the papers of the above mentioned Appeal from Order before the Honourable the Chief Justice.

7. The Honourable Chief Justice of this Court vide order dated 24-5-2006 directed the office to place the matter before this Division Page: 579Bench for consideration of the issue referred to above.

8. We have heard both the learned Advocates. Mr. Thatte, learned Advocate for the appellant submitted that there was infact no necessity to refer the issue to the larger Bench as the provision of Order XIV, Rule 2 of CPC is clear and the learned Single Judge of this Court in a case reported at 2005 (1) All M.R 255 has held that once the issue with regard to jurisdiction is not tried as preliminary issue and parties have led evidence on all issues then while passing the final order the Court has to record findings on all the Issues.

9. In order to decide the above referred issue correctly, it is necessary to see the relevant provisions of the said code.

“Order XIV, Rule 2 reads as under:

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 the 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-

(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. (Emphasis is ours)

Order VII, Rule 10 reads as under:

10. Return of Plaint:—

(1) Subject to the provisions of Rule 10-A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation- For the removal of doubts, it is hereby declared that a Court of appeal or revision may directed, after setting aside the decree passed in a suit, the return of the plaint, under this sub-rule.

(2) Procedure on returning plaint:—

On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

Section 149 of the MRTP Act reads as under:

149. Finality of orders:— Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planing Authority or Development Authority under this Act shall be final and shall not be question in any suit or other legal proceedings.

10. A perusal of sub-rule (2) of Rule 2 of Order XIV makes it clear that when issue of law and of fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on issue of law only, it may try that issue first when that issue relates to (a) jurisdiction of the Court; or (b) the bar to the suit created by any law for the time being in force. Thus, it is not disputed that issue of jurisdiction of the Court can be tried as a preliminary issue. But, now in view of Order XIV, Rule 2(2) of the said Code it gives discretion to the Court. It is not mandatory on the Court to decide the question of jurisdiction or other issue relating to the maintainability of the suit as preliminary issue. If we carefully read the wording of the issue that has been referred to this Division Bench for consideration, it is very clear that it contemplates the situation where the Court has decided not to try the issue with regard to jurisdiction as preliminary issue and parties have infact led evidence on all the issues and the suit is ready for final judgment. It is also needless to say that in view of the provisions of Order VII, Rule 10, plaint can be returned at any stage. It obviously means that it can be done so even while deciding the suit finally. The main question is whether it is necessary for the Court to record finding on all issues when the Court has not followed the course contemplated under Order XIV, Rule 2(2) of the said Code.

11. While answering the issue in question, one has to bear in mind the object with which that Rule 2(1) has been substituted by the Code of Civil Procedure (Amendment) Act, 1976 w.e.f 1-2-1977. It is substituted to provide that, although a suit can be disposed of on preliminary issue, the Court shall ordinarily Page: 580pronounce judgment on all issues. This is obviously in order to avoid picemeal trial and protraction of litigation. It may happen that in a given case issue with regard to jurisdiction of the Court or bar to the suit created by any law for the time being in force may not be tried as a preliminary issue and allowed to be tried alongwith other issues, and after parties adducing evidence fully, at the final stage the trial Court may come to the conclusion that it lacks jurisdiction and as such may dismiss the suit on that ground or direct to return the plaint to the plaintiff for presentation to the proper Court. In such a case, if the said order is challenged in the Appellate Court, and the Appellate Court comes to the conclusion that the finding recorded by the trial Judge with regard to jurisdiction or tenability of the suit is not correct then the Appellate Court would necessarily be required to remand the matter if no findings on other issues are recorded by the trial Judge. Naturally, then in that event there would be protraction of litigation. So, considering this aspect and to avoid to undergo gamut of litigation again, amendment has been introduced, whereby, it is made clear that 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. So, this is infact the mandate laid down by the amended provision. If we carefully consider the provisions of Order XIV Rules 2(1) and (2) together, then, it is absolutely clear that once the course contemplated under sub-rule (2) of Rule 2 of Order XIV of the said Code is not followed by the Court then the Court must necessarily follow the other course which says that the Court shall record the findings on all the issues. If, even after not adopting the course contemplated under sub-Rule (2) of Rule 2 of Order XTV, Court is allowed to dispose of the matter merely on one issue of jurisdiction or maintainability, even after full trial of the suit, then it would amount to allowing the Court to proceed against the letter and spirit of the amended mandatory provision of Order XIV Rule 2(1). So, once the parties and the Court have chosen not to try the issue with regard to jurisdiction or maintainability of the suit as a preliminary issue and on the contrary evidence is led on all the issues and the matter is fixed for final order or judgment then it is necessary for the Court to record findings on all the issues. If the Court is allowed to pass final order without giving finding on other issues and dispose of the matter simply on the point of jurisdiction at such stage, the very purport of the provision of Order XTV, Rule 2 would be defeated. We are, therefore of the considered opinion that the view taken by the learned Single Judge of this Court in a case Kusumkant T. Nagda v. Mariambi Ibrahim, 2005 (3) Bom. C.R 340 : 2005 (1) All. M.R 255 is correct. Incidently, it must be noted that recording of findings on all issues while deciding the matter finally after the time the parties have adduced evidence is not dependant on the nature of the final order that is to be passed, means whether Finally the suit is to be dismissed on the ground of jurisdiction or whether plaint is to be returned. Whatever be the order, when the same is to be passed finally after the parties have led evidence on all issues, then it is necessary for the Court to decide other issues on merits even if the Court comes to the conclusion that it lacks jurisdiction.

12. In view of the above, we answer the issue referred to this Court in the affirmative.

13. Answer accordingly.