Ladda

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SUIT No.1861 OF 2002

Raishi S. Chheda & Ors ..Plaintiffs.

Vs
Dhirajlal R. Chheda & Ors ..Defendants.

Mr. Yahya Ghoghari a/with Uttam S. Rane i/by Jatin

Sheth for the Plaintiffs.
Mr. A.S. Khandeparkar and Mr. P.A. Sarwankar i/by
Sarwankar & Co. for Defendant Nos. 1 and 2.

CORAM : B.P. COLABAWALLA, J.

DATED :- 11th March, 2020.

ORAL JUDGMENT:-

1. Before dealing with the arguments that were canvassed

before me, I would have to mention that originally Notice of Motion

4507 of 2006 was filed by Defendant Nos. 1 and 2 for striking off the

plaint under Order VI Rule 16 read with Section 151 of the Code of

Civil Procedure (for short “the CPC”) and under Article 215 of the

Constitution of India. Defendant Nos. 1 and 2 also sought an order

rejecting the plaint as being barred by limitation and for dismissing

the Suit as being not maintainable. This Notice of Motion was heard

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by a learned Single Judge of this Court (Shri S.J. Vazifdar, J) and by

order dated 26th February, 2008, after a detailed discussion, the

learned Single Judge dismissed the said Notice of Motion. This order

of the learned Single Judge dated 26th February, 2008 was subjected

to an appeal being Appeal No. 509 of 2008. The Appeal Court passed

the following order by consent of parties:-

(i) The learned trial Judge may try the issue of limitation and
jurisdiction first as provided for under Order XIV Rule 2 of the
C.P.C. The suit may be decided, as expeditiously as possible. No
other interference is called for with the order in the appeal;

(ii) Appeal is disposed of in the above terms.

(iii) The learned counsel for the respondents states that the
respondents will file an affidavit of evidence within a period of
two weeks from 17.4.2009.
(emphasis supplied)

2. After the order of the Appeal Court, another learned

Single Judge of this Court (Shri R.Y. Ganoo, J) by order dated 30th

November, 2010 inter alia framed the following issues under Order

XIV Rule 2 of the CPC:-

(i) Does Defendant No.1 prove that this Court has no jurisdiction
to try and entertain this Suit?

(ii) Does Defendant No.1 prove that the Suit is barred by the
period of limitation?

3. The learned Judge further observed that looking to the

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aforesaid issues, defendant Nos. 1 and 2 stated that they will have to

lead evidence. In view of the aforesaid statement, the matter was

set down for recording of evidence on 13th January, 2011 on which

date Defendant No.1 was directed to file his evidence affidavit as

well as compilation of documents limited to the aforesaid issues.

Pursuant to this order, it has been brought to my notice that

evidence has been led on the aforesaid issues by the Plaintiffs as well

as Defendant No.1 and the evidence is complete.

4. Mr. Khandeparkar, the learned Advocate appearing on

behalf of Defendant Nos. 1 and 2 therefore submitted that

considering the past orders and the fact that the evidence is now

complete, the Court may hear and decide the preliminary issues

framed by this Court vide its order dated 30th November, 2010.

5. On the other hand, Mr. Ghoghari, the learned Counsel

appearing on behalf of the Plaintiffs, submitted that in view of a

recent decision of the Supreme Court in the case of Nusli Neville

Wadia vs. Ivory Properties & Ors [2019 SCC ONLine SC 1313],

an issue that required evidence cannot be heard as a preliminary

issue but would have to be decided with all other issues in the suit.

He therefore submitted that it would in the interest of all parties if

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all the issues are decided together so that there is no further delay

in the suit going to trial.

6. I have heard the learned Counsel for the parties at some

length and have perused the papers and proceedings in the present

suit.

7. The order passed by the Division Bench in Appeal dated

23rd March, 2009 inter alia recorded that the learned Judge may try

the issue of limitation and jurisdiction first as provided for under

Order XIV Rule 2 of the C.P.C. It further directed that the suit be

decided as expeditiously as possible. No other interference was

called for with the order under appeal, was the finding of the

Division Bench.

8. Order XIV Rule 1 of the C.P.C. deals with framing of

issues. Order XIV Rule 2 contemplates that the Court is to

pronounce judgment on all issues and reads thus:-

“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.

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 (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---

(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 supplied)

9. From the aforesaid Rule, it is clear from sub-rule (1) 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. An exception is carved out under

sub-rule (2) which stipulates that 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) jurisdiction of

the Court; or (b) a bar to the suit created by any law for the time

being in force. For this purpose, the Court 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.

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10. On a plain reading of Order XIV Rule 2 and more

particularly sub-rule (2) thereof, it is clear that the Court has the

power to decide the question of jurisdiction or a bar to a suit created

by any law for the time being in force, only on an issue of law. The

aforesaid provision confers no jurisdiction on the Court to decide a

mixed question of fact and law, unless the facts are clear from the

plaint itself and the mixed question of fact and law can be

determined on the principle of demurrer. This, in fact, has been so

held by the Supreme Court in the case of Ramesh B. Desai vs. Bipin

Vadilal Mehta & Ors [(2006) 5 SCC 638]. The relevant portion of

this decision reads thus:-

“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that

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. The provisions of this Rule came up
for consideration before this Court in Major S.S.
Khanna v. Brig. F.J. Dillon [(1964) 4 SCR 409 : AIR 1964 SC
497] and it was held as under: (SCR p. 421)

“Under Order 14 Rule 2, Code of Civil Procedure 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 the issues of law only, it
shall try those issues first, and for that purpose may, if
it thinks fit, postpone the settlement of the issues of
fact until after the issues of law have been
determined. The jurisdiction to try issues of law apart
from the issues of fact may be exercised only where in

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 the opinion of the court the whole suit may be
disposed of on the issues of law alone, but the Code
confers no jurisdiction upon the court to try a suit on
mixed issues of law and fact as preliminary issues.
Normally all the issues in a suit should be tried by the
court; not to do so, especially when the decision on
issues even of law depend upon the decision of issues
of fact, would result in a lopsided trial of the suit.”

Though there has been a slight amendment in the language
of Order 14 Rule 2 CPC by the amending Act, 1976 but the
principle enunciated in the above quoted decision still
holds good and there can be no departure from the
principle that the Code confers no jurisdiction upon the
court to try a suit on mixed issues of law and fact as a
preliminary issue and where the decision on issue of law
depends upon decision of fact, it cannot be tried as a
preliminary issue.”
(emphasis supplied)

11. In the present case, admittedly, the issues framed by the

learned Judge involve mixed questions of fact and law. This, in fact,

is conceded by the parties themselves in view of the fact that both

the parties have sought to lead evidence on the aforesaid issues. This

being the case, I do not think that Mr. Khandeparkar is right in

contending that these issues have to be decided first and until they

are decided the other issues ought to be postponed. If the argument

of Mr. Khandeparkar is accepted, it would run directly contrary to

the provisions of Order XIV Rule 2 reproduced above. Even sub-rule

(2) of Rule 2 of Order XIV gives a discretion to the Court to decide a

particular issue as a preliminary issue only on a point of law

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provided the same relates to (a) jurisdiction of the Court; or (b) a

bar to the suit created by any law for the time being in force. This is

clear from the use of the words “it may try that issue first”. In a

given case, even if a preliminary issue regarding jurisdiction or a

bar to a suit can be decided on a point of law, the Court always has

the discretion not to decide the said issue as a preliminary issue but

decide it along with all other issues in the suit. This being the

position from the clear and unambiguous language of Order XIV

Rule 2, I think that the insistence of Mr. Khandeparkar to hear the

aforesaid two issues as preliminary issues is misconceived.

12. I must also mention that in a recent decision of the

Supreme Court in the case of Nusli Neville Wadia (supra), the

Hon’ble Supreme Court also took a similar view in relation to Section

9A of the C.P.C. (in so far as it relates to the State of Maharashtra).

Paragraph Nos. 59, 60 and 61, and which are relevant for our

purpose, read thus:-

“59. When we consider what colour expression “jurisdiction”

has in Section 9A, it is clearly in the context of power to
entertain, jurisdiction takes colour from accompanying word
‘entertain’; i.e. the Court should have jurisdiction to receive
a case for consideration or to try it. In case there is no
jurisdiction, court has no competence to give the relief, but if
it has, it cannot give such relief for the reason that claim is
time-barred by limitation or is barred by the principle of res
judicata or by bar created under any other law for the time
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 being in force. When a case is barred by res judicata or
limitation, it is not that the Court has no power to entertain it,
but it is not possible to grant the relief. Due to expiry of
limitation to file a suit, extinguishment of right to property is
provided under Section 27 of the Limitation Act. When Court
dismisses a suit on the ground of limitation, right to property
is lost, to hold so the court must have jurisdiction to entertain
it. The Court is enjoined with a duty under Section 3 of the
Limitation Act to take into consideration the bar of limitation
by itself. The expression “bar to file a suit under any other
law for the time being in force” includes the one created by
the Limitation Act. It cannot be said to be included in the
expression “jurisdiction to entertain” suit used in Section 9A.
The Court has to receive a case for consideration and
entertain it, to look into the facts constituting limitation or
bar created by any other law to give relief, it has to decide
the question on merits; then it has the power to dismiss the
same on the ground of limitation or such other bar created by
any other law. Thus, the meaning to be given to jurisdiction to
entertain in Section 9A is a narrow one as to maintainability,
the competence of the court to receive the suit for
adjudication is only covered under the provisions. The word
entertain cannot be said to be the inability to grant relief on
merits, but same relates to receiving a suit to initiate the very
process for granting relief.
60. The provision has been carved out under Section 9A, CPC
to decide, question of jurisdiction to entertain, at the stage of
deciding the interim application for injunction and the very
purpose of enactment of the same was that the suits were
being instituted without serving a notice under Section 80,
which at the time of initial incorporation of provisions could
not have been instituted without serving a notice of two
months. There was a bar to institute a suit. It became practice
that after obtaining injunction, suit was allowed to be
withdrawn with liberty to file fresh suit after serving the
notice. To take care of misuse of the provisions, Section 9A
was introduced in the year 1970 and had been re-introduced
again in 1977 to consider question of jurisdiction to entertain
at the stage of granting injunction or setting aside. The
provision has been inserted having the narrow meaning as at
the stage of granting ex parte injunction; the question can be
considered. The written statement, set-off and counterclaim
are not filed, discovery, inspection, admission, production
and summoning of the documents stage has not reached and
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 after the stages described above, framing of issues takes
place under Order XIV. As per Order XIV Rule 1, issues arise
when a material proposition of fact or law is affirmed by the
one party and denied by the other. The issues are framed on
the material proposition, denied by another party. There are
issues of facts and issues of law. In case specific facts are
admitted, and if the question of law arises which is dependent
upon the outcome of admitted facts, it is open to the Court to
pronounce the judgment based on admitted facts and the
preliminary question of law under the provisions of Order
XIV Rule 2. In Order XIV Rule 2(1), the Court may decide the
case on a preliminary issue. It has to pronounce the judgment
on all issues. Order XIV Rule 2(2) makes a departure and
Court may decide the question of law as to jurisdiction of the
Court or a bar created to the suit by any law for the time
being in force, such as under the Limitation Act.
61. In a case question of limitation can be decided based on
admitted facts, it can be decided as a preliminary issue under
Order XIV Rule 2(2)(b). Once facts are disputed about
limitation, the determination of the question of limitation also
cannot be made under Order XIV Rule 2(2) as a preliminary
issue or any other such issue of law which requires
examination of the disputed facts. In case of dispute as to
facts, is necessary to be determined to give a finding on a
question of law. Such question cannot be decided as a
preliminary issue. In a case, the question of jurisdiction also
depends upon the proof of facts which are disputed. It cannot
be decided as a preliminary issue if the facts are disputed and
the question of law is dependent upon the outcome of the
investigation of facts, such question of law cannot be decided
as a preliminary issue, is settled proposition of law either
before the amendment of CPC and post amendment in the
year 1976.”
(emphasis supplied)

13. In fact, in Paragraph 61, the Hon’ble Supreme Court held

that in a case where a question of limitation can be decided based on

admitted facts, it can be decided as a preliminary issue under Order

XIV Rule 2 (2) (b). However, once facts are disputed about

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limitation, the determination of the question of limitation also

cannot be made under Order XIV Rule 2 (2) as a preliminary issue

or any other such issue of law which requires examination of

disputed facts. This being the position, I do not think that the issues

as framed under Order XIV Rule 2 by the order dated 30th

November, 2010 can be decided as preliminary issues.

14. Faced with this situation, Mr. Khandeparkar submitted

that on the issue of jurisdiction and limitation he would be able to

demonstrate on the admitted facts and documents that the suit

ought to be dismissed. I am afraid, I am unable to accept this

argument for two reasons. Firstly, both the parties have led

substantial evidence on both the aforesaid issues. From this, it is

quite clear that there are serious disputed questions of fact that

arise for deciding the aforesaid issues. In fact, in the order dated

30th November, 2010 (when the aforesaid issues were framed), a

statement was recorded on behalf of Defendant Nos. 1 and 2

themselves that they would want to lead evidence in relation to

these two issues. I am therefore unable to allow Mr. Khandeparkar

to now contend that there are no disputed questions of fact and that

he would be able to demonstrate that the suit ought to be dismissed

on admitted facts. This ship has long sailed. Secondly, even

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otherwise, as mentioned earlier, whether a particular issue under

Order XIV Rule 2 is to be decided as a preliminary issue or whether

the same ought to be decided with all other issues, is entirely at the

discretion of the Court. Under Order XIV Rule 2 no party can insist

that the issue of jurisdiction or limitation ought to be tried as a

preliminary issue. That would depend on the facts of each case and

the discretion exercised by the Court in that regard. Therefore, even

this submission of Mr. Khandeparkar, namely, that issue of

jurisdiction and limitation should be decided as a preliminary issue

as he would be able to demonstrate that this Court has no

jurisdiction and/or the same is barred by the law of limitation on the

admitted facts, is wholly misconceived and is of no assistance to

Defendant Nos. 1 and 2.

15. For all the aforesaid reasons, I direct that the issues of

jurisdiction and limitation as already framed by the order dated 30th

November, 2010 shall be tried along with all other issues in the

present suit.

16. It has been brought to my attention that the other issues

in the present suit have not yet been framed.

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17. In these circumstances, at the request of Mr.

Khandeparkar, place this matter on 17th March, 2020 on the

supplementary board for framing of further issues.

(B. P. COLABAWALLA, J)

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