AI Structured Summary
Not yet generated for this judgment
Judgment
What is challenged in these appeals is the order dated 28 February 2012 of the learned trial Judge of this Court, raising the following preliminary issue u/s 9A of the Code of Civil Procedure, 1908 as applicable in the State of Maharashtra:-
Whether the suit has been filed within the period of limitation
The learned Judge further directed that this issue will be rendered as preliminary issue in the suit and the evidence shall be recorded on Commission. The learned Judge further directed that the cost of the Commissioner shall be paid by 3 sets viz., the plaintiff, defendant No. 1 and defendant Nos. 2 and 3 initially and the same shall be subject to further orders in the suit. The examination-in-chief shall be filed by way of affidavit. The learned counsel for the appellants-plaintiffs submits that the question of limitation cannot be raised as a preliminary issue and that u/s 9A of C.P.C., only an issue as to jurisdiction of 2 To the Court can be raised as a preliminary issue. It is further submitted that the question of limitation may be raised as a preliminary issue only under Order 14 Rule 2 of C.P.C., but that can be done only after the defendants file written statement and not at the stage of Section 9A of C.P.C. In support of the above contention the learned counsel for the appellants-plaintiffs has relied upon the decisions of the Supreme Court in Gunwantbhai Mulchand Shah and Others Vs. Anton Elis Farel and Others, and Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, .
On the other hand the learned counsel for the respondent Nos. 2 and 3 (original defendant Nos. 2 and 3 in the suit) has opposed the appeals and submitted that the appeals are not maintainable as the learned trial Judge has not decided any controversy between the parties, but has merely raised the issue of limitation as a preliminary issue u/s 9A of C.P.C. On merits it is submitted that in the case of Foreshore Co-operative Housing Society Limited Vs. Shri Praveen D. Desai, Indian Inhabitant of Bombay and Others, , a Division Bench of this Court has already examined this controversy at length and has held that if the suit is barred by limitation the Court has no jurisdiction to entertain it and the Court is duty bound to dismiss the same and that if the suit is barred by limitation the Court is precluded from proceeding with the contentions and bound to dismiss the suit. For reaching the above conclusion, the Division Bench of this Court relied on the decision of the Supreme Court in Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, of the Constitution Bench of the Supreme Court wherein the Supreme Court had held as under:-
It is well settled that a plea of limitation or plea of res judicata is plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court.
The Court also explained the object of inserting Section 9A in C.P.C., with the following words:-
The moment, the issue of jurisdiction is raised u/s 9-A of the Code of Civil Procedure, the said issue should be decided at first, and not to be adjourned to a later date. The main reason is that if the Court comes to finding that it does not have jurisdiction vested in it in law, then no further enquiry is needed and saves a lot of valuable judicial time. In fact, section 9-A itself mandates that when an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties, the Court will have to decide the issue expeditiously and in no case too be adjourned to the hearing of the suit.
The above decision in Foreshore Co-operative Housing Society Ltd., has also been followed by another Division Bench of this Court in Associated Bombay Cinemas Private Ltd. Vs. Jamni S. Ramchandani of Mumbai, Indian Inhabitant, . The above decisions of two Division Benches of this Court are binding on us.
The learned Counsel for the appellants further relied on the decision in Gunwantbhai Mulchand Shah and Others Vs. Anton Elis Farel and Others, in support of his contention that the question of limitation should not be raised as a preliminary issue u/s 9A of the C.P.C. Heavy reliance is placed on the observation made in para 12 of the decision to the effect that normally, the question of limitation can be dealt with only after evidence is taken and not as a preliminary issue.
Having heard the learned counsel for the parties, we are of the view that the decision of the Supreme Court in Gunwantbhai Mulchand Shah''s case does not advance the appellants'' case because in that case both the parties informed the trial Court by filing statements in writing in that behalf, that they did not want to lead any evidence on the issues to be tried as preliminary issues including the issue of limitation. In that context the Supreme Court observed that the trial Court should have insisted the parties to lead evidence on this question or the Court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial.
On the other hand what the learned trial Judge has directed is that the question of limitation has been raised as a preliminary issue and the parties have been asked to lead oral evidence and the Court Commissioner has been appointed to record oral evidence by way of cross examination of witnesses after the witnesses file their affidavits by way of examination in chief.
As regards the decision in the case of Ramesh B. Desai, (supra) the matter pertained to proceedings before the Company Court the and Supreme Court made the following observations in para 13 of the judgment:-
...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.
Though the above observations, prima facie, appear to be in favour of the appellant-plaintiffs, it needs to be noted that the observations were made while applying the provisions of Order 14 Rule 2 of the C.P.C., and the Supreme Court had no occasion to apply the provisions of Section 9-A of C.P.C. Therefore, the decision in Ramesh B. Desai''s case would not govern the controversy which is the subject matter of the present appeals.
The learned counsel for the appellants, however, submits that the decision in Ramesh B. Desai''s case will indicate that the Supreme Court is not in favour of trying a suit piecemeal and, therefore, the evidence is required to be recorded on all issues and not on preliminary issues. Otherwise the plaintiffs will be saddled with cost of the Court Commissioner at two stages, one at the stage of recording evidence on preliminary issue and again when the evidence will be recorded on all other issues in the suit.
Having heard the learned counsel for the parties, we are of the view that the interests of justice would be served if instead of requiring all the parties to deposit expenses of the Court Commissioner at this stage, the defendant Nos. 2 and 3 at whose instance the preliminary issue has been raised, be required to deposit the remuneration and expenses of the Court Commissioner subject to the same being treated as costs in the suit. Ultimately if the trial Court gives a finding on the preliminary issue in favour of the defendant Nos. 2 and 3 and against the plaintiffs, the defendant Nos. 2 and 3 will be entitled to claim the remuneration and expenses of the Court Commissioner as cost in the suit.
Subject to the above modification, the appeals are dismissed. Since the Appeals are disposed of, the Notices of Motion do not survive. Hence the Notices of Motion are disposed of accordingly.