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2020 DIGILAW 378 (ALL)

Dhan Prakash Budhraja v. M. I. Builders Ltd.

2020-02-04

SANGEETA CHANDRA

body2020
JUDGMENT : Sangeeta Chandra, J. 1. Heard learned Counsel for the petitioners. 2. This petition has been filed under Article 227 of the Constitution of India, praying for setting aside the judgment and Decree dated 4.1.2020 passed by the Court of Civil Judge (Senior Division), Lucknow in Regular Suit No. 2684 of 2019 only in so far as the same relates to the finding regarding the builder's agreement dated 22.4.2015 being executed in respect of entire area of the land in question i.e., 3.1737 hectares. 3. It has been submitted by the learned Counsel for the petitioners that a Regular Suit was filed by the petitioners, praying for an injunction on the ground that the Sale Deed executed by the petitioners were with respect to only a part of the total area of land ad-measuring 30,000 square meters and not for the whole of the area in the ownership, of the petitioners. In the said suit, an application was filed under Order VII, Rule 11 of C.P.C. by the defendants, taking a stand that the entire land ad-measuring 3.1737 hectares formed the subject-matter of builder's agreement dated 22.4.2015, which is a commercial agreement in respect of immovable property and the suit was barred by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as 'Commercial Courts Act, 2015'). 4. The learned Trial Court by means of the judgment and Decree dated 4.1.2020 has returned the plaint holding that it had no jurisdiction to try the suit as it was barred by the Commercial Courts Act, 2015 and cognizable by the Commercial Courts. However, while passing the judgment and Decree dated 4.1.2020, the learned Court below has adjudicated the matter on merits also relating to disputed questions of fact and held that the builder's agreement dated 22.4.2015 had been executed for construction of building over the entire area of land in dispute i.e., an area ad-measuring 3.1737 hectares, rejecting the contention of the petitioners that the same had been executed merely for an area ad-measuring 6000 square meters. 5. Learned Counsel for the petitioners has argued that it is well-settled position in law that for the purpose of deciding an application under Order VII, Rule 11 of C.P.C., the Trial Court can only consider the averments made in the plaint. 5. Learned Counsel for the petitioners has argued that it is well-settled position in law that for the purpose of deciding an application under Order VII, Rule 11 of C.P.C., the Trial Court can only consider the averments made in the plaint. The plea taken by the defendants in the written statement or any other application or document or evidence, is wholly irrelevant at the stage of consideration of the application under Order VII, Rule 11 of C.P.C. 6. Learned Counsel for the petitioners has placed reliance upon a judgment rendered by the Supreme Court in Mayar (H.K.) Ltd. v. Owners and Parties Vessel M.V. Fortune Express, (2006) 3 SCC 100 where it has been held that the plaint should be rejected only on the basis of what is contained therein. 7. Learned Counsel for the petitioners says that so far as judgment and Decree dated 4.1.2020 deals maintainability of the suit in view of it being barred by the Commercial Courts Act, 2015 is concerned, the petitioners have no grievance on the return of the plaint, but the observations made by the learned Trial Court on the merit of the case also setup by the plaintiffs were completely unnecessary. 8. Learned Counsel for the petitioners has also submitted that although a judgment rendered by a Court, which is without jurisdiction is a nullity in law, as has been settled by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 any observations that go to the root of the matter and shall prejudice the plaintiffs, may be utilized by the defendants even when the plaintiffs approach the Commercial Courts against the builder's agreement/Sale Deeds executed by them in favour of the contesting respondents. 9. Learned Counsel for the petitioners has placed reliance upon a judgment rendered by the Supreme Court also in Harshad Chaman Lal Modi v. DLF Universal Ltd. and another, 2005 (61) ALR 647 (SC) : 2005 (35) AIC 88 (SC) : (2005) 7 SCC 791 and has referred to Paras 27 to 33 of the said judgment. 10. This Court has perused the judgment cited by the learned Counsel for the petitioners rendered in Harshad Chaman Lal Modi (supra). The Supreme Court in Para-30 observed that the jurisdiction of a Court may be classified into several categories. 10. This Court has perused the judgment cited by the learned Counsel for the petitioners rendered in Harshad Chaman Lal Modi (supra). The Supreme Court in Para-30 observed that the jurisdiction of a Court may be classified into several categories. The important categories, are: (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdiction are concerned, objections to such jurisdiction have to be taken at the earliest possible opportunity. However, with regard to the subject-matter, question of jurisdiction has to be raised and can be raised at any time. Where a Court has no jurisdiction over the subject-matter of suit by reason of any limitation imposed by a Statute, it cannot take up the cause on merits at all. An order passed by such a Court having no jurisdiction is a nullity. 11. Learned Counsel for the petitioners has also placed reliance upon a judgment in Oil and Natural Gas Corporation Limited v. Modern Construction and Company, (2014) 1 SCC 648 where the Supreme Court considered the question of return of plaint and observed in Para-17 of the said judgment that if the Court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII, Rule 10 of C.P.C. so that the plaintiff can present it before the Court having competent jurisdiction. In such cases, limitation would start running from the date when return of the plaint is effected by the Court in which, it was wrongly filed. 12. This Court has considered the judgment and Decree impugned in this petition and finds therefrom several observations being made on the merits of the case as raised by the plaintiffs and the defendants before the learned Trial Court. Findings on merits have been recorded at internal Page-5 regarding the sale agreement relating to the entire land ad-measuring 3.1737 hectares, as a result whereof, the plaintiffs' case shall be prejudiced when they approach the Court of competent jurisdiction. 13. This Court finds that the learned Trial Court has completely unnecessarily gone into the merits of the case. It had only to see from the application filed under Order VII, Rule 11 of C.P.C. whether the Court had jurisdiction in view of the matter being covered by the Commercial Courts Act, 2015. 13. This Court finds that the learned Trial Court has completely unnecessarily gone into the merits of the case. It had only to see from the application filed under Order VII, Rule 11 of C.P.C. whether the Court had jurisdiction in view of the matter being covered by the Commercial Courts Act, 2015. No observations on the basis of affidavits filed in support of such an application under Order VII, Rule 11 of C.P.C. on the merits of the case could have been made. 14. Consequently, this Court while not interfering with the eventual judgment and Decree passed on 4.1.2020 on returning the plaint, holds that the observations made by the learned Trial Court with regard to the contents of the builder's agreement/Sale Deed signed between the parties, shall be considered to be obiter and not taken into account by any Court of competent jurisdiction, which the plaintiffs approach on legal advise. 15. The writ petition is allowed. Petition Allowed.