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2015 DIGILAW 1458 (BOM)

Prakash v. Varsha Sharad Parwekar

2015-07-03

A.P.BHANGALE

body2015
JUDGMENT : Rule returnable forthwith. Heard finally with the consent of learned Counsel for the respective parties. 2. It is the case of the revision applicants (original defendants) in pending Special Civil Suit No. 563 of 2012 on the file of Civil Judge (Sr. Dn.), Nagpur that an application was moved under Order VII, Rule 11 of the Code of Civil Procedure for rejection of plaint or in the alternative, to frame preliminary issue as to maintainability of the suit on the ground of bar of limitation. Detailed application was made with a prayer to reject the plaint for not disclosing cause of action or as barred by limitation and also on the ground that the plaint was deliberately not valued for the suit claim so as to pay Court fees. The trial Court was requested to frame preliminary issue as to maintainability of suit as also as to the bar of limitation; thus jurisdiction of the Court to entertain the suit itself was questioned. It is further grievance of the revision applicants that without hearing the applicants in support of the application for rejection of plaint for framing preliminary issue as to maintainability of the suit, the learned trial Judge went on to pass an order without hearing the Counsel for the defendants. When the order was passed, it is contended that even the plaintiffs were absent. Without going into merits of these submissions, prima facie when such an application is moved as to maintainability of the suit itself on the questions in relation to jurisdiction of the Court to entertain the suit, it was obligatory for the learned trial Judge to frame preliminary issue as to whether the suit is maintainable, particularly when the question of bar of limitation is raised, it is a mixed question of facts and law to be decided and the parties may be called upon to adduce evidence as they may choose if such preliminary issue is raised and framed by the learned trial Judge. However, if it is preliminary stage of rejection of plaint, it is for the learned trial Judge to peruse averments in the plaint even without requiring any assistance from the defendant to take decision as to whether the plaint is liable to be rejected under Order VII, Rule 11 of the Code of Civil Procedure, by considering the various grounds stated in the clauses under Order VII, Rule 11 of the Code of Civil Procedure. 3. In the present case, it appears that composite application for rejection of plaint or in the alternative, to frame preliminary issue as to maintainability of the suit was made and the learned trial Judge, therefore, if the plaint is not rejected, the trial Judge could have framed preliminary issue as to maintainability of the suit and ought to have called upon the parties to adduce evidence, if any, to decide such issue as to maintainability of the suit. Under section 9-A of the Code of Civil Procedure, when such an issue is raised as to the jurisdiction of the Court to entertain and try the suit by either of the parties, it is obligatory for the trial Judge to hear such application raising objections as to jurisdiction of the Court to entertain the suit. The Court shall frame such issue as to maintainability of the suit or as to jurisdiction of the Court to entertain and try the suit and shall hear and dispose of such preliminary issue as expeditiously as possible in view of section 9-A of the Code of Civil Procedure as applicable to the State of Maharashtra. 4. Mr. Anand Parchure, learned Counsel for the applicants made reference to the ruling in the case of Commissioner, Akola Municipal Corporation vs. Bhalchandra s/o Govinda Mahashabde, reported in 2013 (4) Mh.L.J. 45 to submit that it is obligatory for the plaintiff to disclose complete cause of action by making averments on all material facts in the plaint and omission on the part of the plaintiff to mention a single material fact may lead to plaint being considered as bad for want of valid cause of action. Reference is also made to the ruling in the case of Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman vs. Ponniamman Educational Trust represented by its Chairperson/Managing Committee, reported in 2012 (6) Mh.L.J. (S.C.) 738, (2012) 8 SCC 706 making reference to para 30 to submit that in absence of any cause of action, this suit cannot proceed further. 5. Be that as it may, it is obligatory for the learned trial Judge to consider the objections raised as to jurisdiction of the Court to entertain and try the suit and frame preliminary issue accordingly. The learned trial Judge may, if according to him, plaint is liable to be rejected for any of the grounds stated under Order VII, Rule 11 of the Code of Civil Procedure, take decision accordingly and after hearing the parties in respect of application for rejection of the plaint, may decide the issue if raised as to maintainability of the suit. Therefore, the impugned order is set aside. Parties are directed to go before the trial Court on 27-7-2015. The learned Judge to consider the submissions as also the rulings cited and relevant provisions including Order VII, Rule 11 and section 9-A of the Code of Civil Procedure as applicable to the State of Maharashtra and then to decide the application according to law.