Writ Petition Nos. 5775 of 2012, 722 of 2013 and Civil Revision Application No. 482 of 2012. Case: Walchandnagar Industries Limited Vs Indraprastha Developers and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition Nos. 5775 of 2012, 722 of 2013 and Civil Revision Application No. 482 of 2012 |
| Counsel | For Appellant: Shri S.G. Aney, Sr. Adv. assisted by Shri G. Datar, Advocate in W.P. No. 722/2013, Shri P.B. Shah and Smt. Jaymala Oswal, Advs. in W.P. No. 5775/2012 and C.R.A. No. 482/2012 and For Respondents: Shri G.S. Godbole and Shri G.S. Baj, Advs. for Respondent Nos. 1 and 2 in W.P. No. 722/2013 |
| Judges | R.K. Deshpande, J. |
| Issue | Bombay Civil Courts Act, 1869 - Sections 24, 8; Bombay Court-fees Act, 1959 - Section 10, 11, 14, 24, 6, 8, 9; Code of Civil Procedure, 1908 (CPC) - Order II Rule 2; Order VI Rule 17; Order VII Rule 11,11(a), 11(b), 11(c), 11(d), 13; Code of Civil Procedure, 1908 (CPC) - Order XIV Rule 1, 2, 2(1), 2(a); Code of Civil Procedure, 1908 (CPC) - ... |
| Citation | 2015 (3) MahLJ 786 |
| Judgement Date | September 25, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
R.K. Deshpande, J.
1. Writ Petition No. 722 of 2013 filed by the original defendant No. 1 takes exception to the order dated 28-11-2012 passed by the learned Civil Judge, Senior Division, Pune, allowing Exhibit 68 - the application for amendment under Order VI, Rule 17 of the Civil Procedure Code filed by the plaintiffs in Special Civil Suit No. 590 of 2011, after conclusion of cross-examination of one witness, viz. Mahendra Maniklal Shah, examined by the plaintiffs. It was a suit for declaration that there is a concluded conditional contract between the plaintiffs and the defendant No. 1 for transfer of right, title and interest in the suit property in favour of the defendant No. 2 and for permanent injunction restraining the defendant No. 1 from dealing with the suit property in any manner prejudicial to the interest of the plaintiffs. By way of amendment, which has been allowed by the Trial Court, a relief of specific performance of contract and for possession of the suit property, has been asked for.
2. The Trial Court has recorded the finding that the plaintiffs have indirectly sought relief of specific performance of contract in the original suit and, therefore, the plaintiffs were directed to pay the deficit court fee. The further finding recorded is that the amendment sought does not change the basic structure of the suit, so also the additional pleadings and prayer are necessary for deciding the real controversy in the suit, and in peculiar circumstances of the case, it cannot be said that the plaintiffs are not diligent in filing an application for amendment of the plaint.
3. Initially, the matter was listed before this Court on 6-2-2013, and an order of status quo was passed. The learned counsels have put their appearance for the respondents. On 24-7-2013, the matter was taken up for final disposal. Shri S.G. Aney, the learned Senior Counsel, appeared for the petitioners; whereas Shri GS. Godbole, the learned counsel, appeared for the respondent Nos. 1 and 2, the original plaintiffs. The respondent Nos. 3 and 4 supported the case of the respondent Nos. 1 and 2/plaintiffs.
4. During the course of arguments, in the beginning, it was expressed to the learned counsels for the parties that there is a board of at least 125 matters listed daily in the form of writ petitions or civil revision applications challenging the interlocutory orders, and hence in order to adopt some uniform criteria about entertaining all such petitions or revision applications, can certain guidelines not be laid down? The learned counsels have agreed to address this Court on such question to be framed. Accordingly, a question of law is finalized in consultation with the learned counsels for the parties, and an order was passed on 24-7-2013 as under:
1. After hearing the learned Counsels appearing for the parties for quiet sometime, it is proposed that the Counsels should address this Court on the following question;
Where a Court subordinate to the High Court, passes an interlocutory order in any suit or other proceedings, deciding an issue or determining some right or liability based upon the conspectus of facts, should this Court exercise its Revisional jurisdiction under Section 115 of the CPC or as the case may be, a Writ Jurisdiction under Article 226 or 227 of the Constitution of India, to interfere, when such decision or determination, can be more conveniently and effectively challenged by exercising a statutory right of appeal available, after the final decision in such a Suit or proceedings.
2. Since the question is repeatedly coming up for consideration of this Court in exercise of its Revisional Jurisdiction under Section 115 of Code of Civil Procedure or a Writ Jurisdiction under Article 226 and 227 of the Constitution, the Members of the Bar are at liberty to address this Court on this question. Hence, notice be given to the Members of Bar that the matter is kept on 1st August 2013 at 3.00 p.m.
5. Some of the lawyers sitting in Court room expressed their desire to address the Court on the point and suggested that the notice be given to the members of the Bar. Accordingly, a notice of the aforesaid order was given to the Bar Council of Maharashtra & Goa on 26-7-2013; in response to which, this Court had pleasure to hear the arguments of the learned counsels Shri A.V. Anturkar, Shri Shriram Kulkarni, Ms Deepa Ahuja, Shri Amit A. Gharte and Shri Advit M. Sethna, who have voluntarily come forward to assist the Court in deciding such question of law.
6. In Writ Petition No. 5775 of 2012, the order passed by the learned Civil Judge, Junior Division, rejecting the application Exhibit 18 under Order VII, Rule 11(b) of CPC objecting to the valuation of the suit property, has been challenged. In Civil Revision Application No. 482 of 2012, the order passed by the learned Civil Judge, Junior Division, rejecting the applications Exhibits 20 and 38 raising objections under Sections 9A and Order VII, Rule 11(b) and (c) of CPC, has been challenged. In these matters, I have heard the learned counsels Shri P.B. Shah, Smt. Jaymala Oswal for the petitioners, and Shri Kiran Kandipile for the respondents.
7. It is not the argument by any of the learned counsels appearing for the parties or otherwise that merely because the interlocutory order can be challenged after the final decision, the jurisdiction of the revision under Section 115 of CPC or the jurisdiction under Article 226 or 227 of the Constitution of India cannot be invoked. All the learned counsels are at consensus ad idem in their arguments that the exercise of jurisdiction by the High Court under the aforesaid provisions will depend upon the facts and circumstances of each case and there is no absolute bar by way of an alternate remedy of challenging an interlocutory order after the final decision of the case. I accept this proposition of the learned counsels. By this judgment, I am also not laying down any law that there would be an absolute bar for the High Court to entertain either a revision under Section 115 of CPC or a petition under Article 226 or 227 of the Constitution of India. By this judgment, I am merely laying down certain guidelines for exercise of such jurisdiction in certain situations and that too, to a possible extent. The judgment does not take care of all situations, but deals with certain recurrent orders so as to maintain consistency in the approach, which is to be made known to all.
8. I must put a word of appreciation for the efforts taken by all the learned counsels appearing for the parties and those who have voluntarily come forward before this Court to spare their time and assist the Court in laying down the guidelines by exposing various shades of arguments and bringing to the notice of this Court the provisions of law and precedents. In order to reduce the length of this judgment, I have not referred to the arguments advanced by each and every counsel, who has addressed this Court, but the arguments advanced will find answers in the judgment. Almost all the citations referred to by the learned counsels have also been dealt with.
Kinds of Judgments
9. There are three kinds of judgments, as has been held by the Apex Court in the case of Shah Babulal Khimji v. Jayaben D. Kania & another, reported in (1981) 4 SCC 8, which are as under:
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A final judgment;
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A preliminary judgment; and
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An intermediary or interlocutory judgment
Final Judgment
10. 'A final judgment' means a formal expression of an adjudication, which, so far as regards the Courts expressing it, conclusively determines the rights of the parties with regard to all matters in controversy so as to put an end to the litigation pending before it. In such a case, the suit is either dismissed or allowed or partly dismissed or partly allowed. It becomes a 'decree' within the meaning of sub-section (2) of Section 2 of the Civil Procedure Code ('CPC'), which can be challenged on facts and law both, by exercising a statutory right of appeal under Section 96 read with Order XLI, Rule 1 of CPC. In such case, there is no question of entertaining either a revision under Section 115 of CPC, or a writ petition under Article 226 or 227 of the Constitution of India.
Preliminary Judgment
11. 'A preliminary judgment' in a suit is normally of two kinds, viz. (i) where a suit is dismissed without going into the merits, but only on the preliminary objection raised by the other side, it gets finally decided and no proceedings remain pending before the Court; and (ii) where a preliminary objection raised before the Court is rejected and the Court proceeds to decide the suit on merits. In a suit, a preliminary judgment is delivered, ordinarily and mostly in exercise of the power under Section 9A or under Order VII, Rule 11, or under Order XIV, Rule 2 of CPC, either by dismissing the suit; by rejecting a plaint, upholding a preliminary objection; or by rejecting such preliminary objection.
Stage to invoke power under Section 9A
of CPC12. The power of the Trial Court to decide an issue of jurisdiction under Section 9A of CPC can be invoked, only at the time of deciding an application for grant of interim relief's, as contemplated by sub section (1) therein. When such an objection is raised, the Court is obliged to decide an issue at that stage only, without proceeding to decide the suit on merits. Once the Court proceeds to decide the suit on merits and no objection is raised as to the jurisdiction of the Court while deciding the application for grant of interim relief's, as contemplated therein, the power under Sub-section (1) of Section 9A cannot be invoked. This however, does not preclude the Court from deciding such an issue raised in the written statement by invoking its discretionary power under Order XIV, Rules 2(a) and (b).
Stage to invoke power under Order VII
Rule 11(d) of CPC13. The power of the Court to reject a plaint under Order VII, Rule 11(d) of CPC for want of...
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