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2009 DIGILAW 232 (BOM)

Jaiguru Shikshan Prasarak Mandal, Pusad v. Swami Vivekahand Sahakari Gruh Nirman Cooperative Society, Shrirampur

2009-02-17

J.H.BHATIA

body2009
JUDGMENT 1. Rule. Rule is made returnable forthwith. With consent of the parties, the matter is taken for final hearing immediately. 2. Heard the learned counsel for the parties. 3. The respondents had filed Reg.Civil Suit No.99 of 2004 against the present petitioners, alleging that petitioners have made encroachment on their piece of land. The petitioners filed the written statement. On the basis of the rival contentions, issues came to be framed by the trial court. The present petitioners made an application (Exh.36) before the trial court seeking direction to treat issue no.5 as a preliminary issue. According to the respondents/plaintiffs, the value of the land was about Rs.25000/- while according to the petitioners its value was about Rs.5,00,000/- and therefore, the issue was framed - ìwhether this court has jurisdiction over the subject matter of the suit property. The request made by the petitioners to treat that issue as a preliminary issue was opposed on behalf of the respondents on the ground that it is not a pure question of law but mixed question of facts and of law and it will be necessary to give an opportunity to both the parties to prove the market value of the property. The learned trial court rejected the application holding that it is not a pure question of law on which the matter could be disposed of and therefore, it cannot be treated as a preliminary issue. Accordingly, the application came to be dismissed. Hence, this petition is filed by the original defendants. 4. Learned counsel for the petitioner vehemently contended that under section 9-A of the C.P.C. as amended by the Maharashtra Amendment Act, 1977, for determination of the preliminary issue, the party may be given an opportunity to lead the evidence and in support of this, he placed reliance upon Meher Singh ..vs. Deepak Sawhny and anr. [1998(3)] Mh.L.J. 940, wherein the Division Bench of this court held that the parties may be given an opportunity to lead evidence for decision of preliminary issue under Section 9-A of C.P.C. 5. [1998(3)] Mh.L.J. 940, wherein the Division Bench of this court held that the parties may be given an opportunity to lead evidence for decision of preliminary issue under Section 9-A of C.P.C. 5. The learned counsel for the respondent has vehemently contended that Section 9-A of C.P.C. has no application in the present matter because there was no application for any interim relief in the suit and according to him, under Section 9-A, preliminary issue can be decided only if there is an application for interim relief and decision of that preliminary issue is necessary before granting that interim relief. 6. Section 9-A of C.P.C. reads as follows - (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the court to entertain such suit is taken by any of the parties to the suit, the court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit. (2) Notwithstanding anything contained in subsection (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary , pending determination by it of the preliminary issue as to the jurisdiction. 7. On perusal of the provisions of Section 9A, it is clear that if at the time of hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, if an objection to the jurisdiction of the court to entertain such suit is taken, the court shall proceed to determine the issue as to jurisdiction as a preliminary issue before granting or setting aside such interim relief. From the language of Section 9-A, it is clear that this will be applicable only where the court is required to decide as to whether interim relief may be granted or needs to be vacated and if such objection as to jurisdiction of the court is taken, that issue of jurisdiction should be decided by that court as preliminary issue and the court may give opportunity to both the parties to lead evidence for decision of that issue. However, if there is no application pending for grant of interim relief or for vacating the interim relief, Section 9-A has no application and the matter would be governed by order XIV Rule 2 of C.P.C., which reads as follows - 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 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. 8. From the language of Order XIV Rule 2, it is clear that the court shall pronounce the judgment on all the issues and under subrule 2, where there are issues both of law and of facts 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 the jurisdiction of the Court or a bar to the suit created by any law. 9. It means that any issue which relates to the jurisdiction of the court or to a bar to the suit created by any law, may be decided as a preliminary issue as issue of law only. 9. It means that any issue which relates to the jurisdiction of the court or to a bar to the suit created by any law, may be decided as a preliminary issue as issue of law only. In the present case, the trial court noted that the counsel for both the parties made a statement that for decision of issue no.5, it will be necessary to lead evidence because without that evidence it is impossible for the court to decide whether value of the suit property was of Rs.25000/- or Rs.5,00,000/- or whether that valuation is more than the pecuniary jurisdiction of the Civil Judge (Jr.Dn.). As no application for interim relief was filed and was required to be decided, Section 9-A has no application and as issue no.5 is a mixed question of law and of facts, it cannot be decided as a preliminary issue in view of language of Order XIV Rule 2 of C.P.C. 10. Taking into consideration the facts and legal position, I find that the trial court was right in refusing to decide issue no.5 as a preliminary issue. The petitioners have unnecessary filed this petition challenging the impugned order and dragging the plaintiff/respondent in further litigation before this court. For the aforesaid reasons, the writ petition stands disposed of subject to payment of costs of Rs.2000/- to be paid by the petitioner to the respondent. The costs be deposited before the trial court within four weeks from the date of this order. The petition stands disposed of accordingly. Rule discharged.