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2014 DIGILAW 897 (BOM)

Chandabai v. Mehmood Khan Abdul Hamid Khan

2014-04-04

A.P.BHANGALE

body2014
JUDGMENT 1. This second appeal is directed against judgment and order dated 10.9.2013, passed by the learned Ad-hoc District Judge-2, Nagpur, in Regular Civil Appeal No.43 of 2010, whereby the appeal was dismissed, which arose from judgment and order dated 21.11.2009, passed by the learned Additional Judge, Small Causes Court, Nagpur, in Regular Civil Suit No.44 of 2004, whereby the suit was partly decreed with costs. 2. This second appeal was admitted on 19.12.2013, by my learned brother Judge Shri S.B. Shukre, on the following substantial questions of law, thus: (1) Whether in the facts and circumstances of the case Small Causes Courts could be said to have jurisdiction to try the suit, when the suit is based on relationship of partnership and seeks a declaratory relief, in view of the bar created by Item 19 and Item 29 of 2nd Schedule of the Provincial Small Causes Court Act, 1887? (2) Whether in the facts and circumstances of the case, oral evidence inconsistent with and contrary to the terms of partnership Exh.62 and Exh.92, could have been considered? (3) Whether in the facts and circumstances of the case, it can be said that fixed payment of Rs.1,500/- provided in the partnership deed was permissible for a valid partnership, specially when the premises of the partnership was to be used as shop premises? Thus, at the time of admission, the question regarding jurisdiction of the Small Causes Court to entertain and try the suit was to be considered as the suit was based upon the averments as to relationship arising from partnership and declaratory relief. 3. According to learned Counsel appearing for appellants in view of the provisions of The Provincial Small Cause Courts Act, 1887 (for short, “the said Act”), considering Section 15 of the said Act relating to cognizance of suits by the Small Causes Court, though the objection to the jurisdiction of the Small Causes Court was taken in the trial Court that the Small Causes Court had no jurisdiction at all to try and decide the suit, the said Court proceeded further to entertain and decide the suit without considering the preliminary objection taken as to jurisdiction of the Small Causes Court. According to the submission advanced on behalf of appellants the learned trial Judge ought to have considered the provisions of Section 15 of the said Act, in juxtaposition with Item Nos.(11), (19) and (29) of the Second Schedule, which deal with the suits excepted from the cognizance of the Small Causes Court. Said Item Nos.(11), (19) and (29) read, thus : “Item No.(11):-a suit for the determination or enforcement of any other right to or interest in immovable property; Item No.(12) :-a suit for possession ........... ........... ........... ........... Item No.(19):- a suit for a declaratory decree, not being a suit instituted under section 283 or section 332 of the Code of Civil Procedure, 1882 (14 of 1882); Item No.(20):-a suit instituted .......... .......... .......... .......... Item No.(29):-a suit -- (a) for a dissolution of partnership or for the winding up of the business of a partnership after its dissolution; (b) for an account of partnership-transaction; or (c) for a balance of partnership-account, unless the balance has been struck by the parties or their agents. .......... .......... ..........” Thus, Item No.11 provides an exception of a suit for the determination or enforcement of any other right to or interest in immovable property while Item No.19 relates to a suit for a declaratory decree, not being a suit instituted under Sections 283 or 332 of the Code of Civil Procedure; and Item No.29 relates to a suit for a dissolution of partnership or for the winding up of the business account etc. in relation to the partnership firm. 4. In the present case, the partnership deed was subject of the suit before the trial Court. Therefore, according to learned Counsel appearing for appellants an objection was taken in the trial Court itself as preliminary objection requiring the trial Court to decide the objection as to the jurisdiction of the Court to entertain and try the suit as a preliminary issue. According to the learned Counsel, the Small Causes Court had no jurisdiction to entertain and try the suit. 5. According to the learned Counsel, the Small Causes Court had no jurisdiction to entertain and try the suit. 5. On behalf of the respondent, it is contended, that since both the Courts below exercised jurisdiction to entertain and try the suit and proceeded to decide the suit and the appeal and while Courts below recorded concurrent findings of facts, in relation to the issues framed in the suit and the appeal, in view of the provisions of Section 34 of The Maharashtra Rent Control Act, 1999, after first appellate Court decided the appeal, no further appeal can be entertained. The identical provision is pointed out from The Provincial Small Cause Courts Act, 1887, which is in relation to the jurisdiction of the appellate Court; and in Sub section (3) of Section 26-A further appeal is not entertainable against any decision in appeal before the Small Causes Court. 6. In the present case, it appears that the debatable question was agitated at the time of admission as well as today when the second appeal was listed for hearing. In my opinion when in the trial Court, the defendants appeared and filed written statement raising a preliminary issue as to jurisdiction of the Court to entertain and try the suit, the preliminary issue could have been framed by the trial Court and decided. It would not be out of place to refer Section 9-A of the Code of Civil Procedure, State Amendment (Maharashtra). It operates when any application for interim relief is under consideration by the Court. It reads, thus: “9-A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue. -- (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 a 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 sub-section (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.” - Maharashtra Act (65 of 1977) (w.e.f. 19.12.1977). Even if there is no any application for interim relief as referred above; the trial Judge may, in view of Order XIV Rule 2(2)(a) of the Code of Civil Procedure, take an early opportunity to dispose of the suit by hearing and deciding preliminary issue as to jurisdiction of the Court. The trial Judge is expected to dispose of the suit at his earliest opportunity as may be possible to save expenses to the parties and precious judicial time. Therefore, it was for the trial Court to earnestly ponder over the objection taken by the defendants in their written statement as to jurisdiction of the Court to entertain the suit. The trial Judge is expected at his earliest to consider whether the suit itself can be disposed of finally by recording finding upon a preliminary issue as to jurisdiction of the Court before the settlement of other issues in the suit. Any such objection as to the jurisdiction of the Court to try the suit ought to be disposed of by the trial Court at its earliest opportunity or as expeditiously as possible. 7. The defendants had, in the written statement filed on 3.3.2004, raised preliminary objection in following terms, thus: “That, the parties have no relationship of landlord and tenant therefore this honourable Court has no jurisdiction to adjudicate the present suit. That from the contents of plaint itself it is clear that relations of two parties were based on a deed styled as “Bhagidari Patra”, apparently it is not a registered deed of partnership and therefore the plaintiff cannot claim anything on the basis of the same. That only remedy available to the plaintiff is to file a civil suit for settlement of account on the basis of unregistered deed of partnership. That as per Second Schedule entry No.29 of Act, such suit are excepted from the cognizance of Small Cause Court without prejudice to as stated above.........” 8. That only remedy available to the plaintiff is to file a civil suit for settlement of account on the basis of unregistered deed of partnership. That as per Second Schedule entry No.29 of Act, such suit are excepted from the cognizance of Small Cause Court without prejudice to as stated above.........” 8. Learned counsel appearing for appellants contends that despite such preliminary objection as to jurisdiction of the trial Court, it did not bother to frame preliminary issue as to its jurisdiction to entertain and try the suit but proceeded further to hear the suit. In other words, therefore, the trial Court in the present case failed in its duty to consider Sections 9 read with Order XIV of the Code of Civil Procedure. As a general rule, the Court is required to pronounce the judgment upon all issues but when the case may be disposed of upon the preliminary issue raised as to jurisdiction of the Court or any legal bar, the trial Court can postpone framing other issues and decide the preliminary issue first under Order XIV Rule 2(2)(a) of the Code of Civil Procedure to hear and dispose of the preliminary objection as to the issue of jurisdiction before proceeding further and taking steps towards hearing of the suit. The trial Court Judges can save lot of judicial time and unnecessary expenses to the parties in long drawn out litigation, if the suit itself can be disposed of finally at early stage of the litigation. 9. The legal provision, therefore, as discussed above, cannot be overlooked by the trial Court and also by the first appellate Court, which could have rectified the error committed by the learned trial Judge by remanding the matter and calling upon the trial Court to frame preliminary issue and to decide the preliminary issue first before dealing with and decide the other issues in the suit. 10. Considering such prima facie error of law, the argument that, the second appeal is not maintainable, would go into oblivion particularly when after appellants were heard at the stage of admission and the argument was considered in order to formulate the substantial questions of law by this Court. The jurisdiction of the second appellate Court to entertain the second appeal is neither natural nor inherent as it is a substantive statutory right regulated by Section 100 and following Sections of the Code of Civil Procedure. The jurisdiction of the second appellate Court to entertain the second appeal is neither natural nor inherent as it is a substantive statutory right regulated by Section 100 and following Sections of the Code of Civil Procedure. If the question of law is of general public importance which directly or substantively affects the rights of the parties, the second appellate Court can surely in the larger interest of justice intervene, if the conclusions by the trial Court and the appellate Court below, are contrary to law. Therefore, the jurisdiction of the High Court, to entertain the second appeal, extends to hear the appeal on any substantial question of law, which is involved, even if assuming that it was not formulated at earlier stage due to the mistake or inadvertence. The second appellate Court can consider any debatable question of law which is not previously settled by any binding judicial precedent. Normally, the second appellate Court would not interfere with the concurrent findings of facts recorded by the Courts below but in exceptional cases wherein it appears that the Courts below ignored material evidence or acted without evidence or raised wrong interference drawn from the proved facts by applying law erroneously or where the Courts have wrongly casted the burden of proof, the burden of proof can be interfered. The perversity or illegality, if any, can be rectified in the larger interest of justice. 11. Thus, when any perversity or illegality is brought to the notice of the second appellate Court, regarding any findings recorded by the Courts below, it is the duty of this Court to intervene and rectify the legal error committed by the Courts below, if any, by passing an appropriate order in exceptional circumstances. In other words, therefore, merely because of the concurrent findings of facts recorded by both the Courts below, this Court is not powerless to consider the debatable and significant substantial questions of law so as to formulate and decide them in the larger interest of justice, if any. The trial Court if it proceeds further to entertain and try the suit without having jurisdiction to entertain and try the suit according to the law. Then, any such judgment, rendered by a trial Court without having jurisdiction, would be considered as nullity. The trial Court if it proceeds further to entertain and try the suit without having jurisdiction to entertain and try the suit according to the law. Then, any such judgment, rendered by a trial Court without having jurisdiction, would be considered as nullity. In such exceptional cases where it appears so, the preliminary question as to jurisdiction of the Court has to be settled according to the law particularly when such important question of law raised in relation to general public importance i.e. relating to the very jurisdiction of the trial Court to entertain and try the suit. The contention objecting jurisdiction of the trial Court taken at early stage of the suit cannot be ignored. 12. I feel it was the duty of the learned trial Judge to earnestly consider the preliminary objection raised by the defendants as to jurisdiction of the trial Court to entertain and try the suit and to decide the same before taking any further steps in the suit as such issue as to the jurisdiction can go to the root of the institution of the suit itself. That being so, the questions of law formulated as in paragraph No.2 above become redundant in this second appeal. 13. For the above reasons, the impugned judgments and orders dated 10.9.2013, passed by the learned Ad-hoc District Judge-2 and Additional Sessions Judge, Nagpur, in Regular Civil Appeal No.43 of 2010 and 21.11.2009, passed by the learned Additional Judge, Small Causes Court, Nagpur, in Regular Civil Suit No.44 of 2004, are hereby quashed and set aside. The parties are directed to appear before the trial Court on 21.4.2014 and the trial Court is directed to frame preliminary issue as to jurisdiction of the Court to entertain and try the suit and thereafter to decide it in accordance with law. It is clarified, that in case, the trial Court holds, that it has jurisdiction to entertain and try the suit, the trial Court can consider the evidence, as to the rest of the issues framed by it, on its own merits in accordance with law. No order as to costs. Appeal allowed.