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SUPREME COURT OF INDIA
H.L. Dattu, CJI., A.K. Sikri, J.
Kamalakar Eknath Salunkhe - Appellant
Vs.
Baburav Vishnu Javalkar and Ors. - Respondents
C.A. No. 1085 of 2015 (Arising out of SLP(C) No. 30348 of 2013)
Decided On: 12-01-2015
Civil Procedure Code, 1908 - Section 9A - Amendment Act of 1969 - Section 9A - Jurisdiction - Seeking permanent injunction - Possession of suit property - Parties in appeal are referred as arrayed before Trial Court - Appellant is Plaintiff and Respondents are Defendants – Fact in brief are Defendants Nos. 1 to 3 agreed to sell suit schedule property situated at District by an agreement of sale in favor of Plaintiff for total consideration - Plaintiff in part-payment of aforesaid agreed consideration had paid to Defendants Nos. 1 to 3 and secured possession of suit property – Plaintiff on apprehension that Defendants Nos. 1 to 3 are intending to sell suit schedule property filed a Regular Civil Suit inter alia seeking permanent injunction restraining Defendants Nos. 1 to 3 from alienating suit property - Held, Provision contemplates that when an issue of jurisdiction is raised said issue should be decided at first as expeditiously as possible and not be adjourned to a later date - Primary reason is that if 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 - A perusal of Statement of Object and Reasons of Amendment Act would clarify that Section 9A talks of maintainability only on question of inherent jurisdiction and does not contemplate issues of limitation - Section 9A has been inserted in Code to prevent abuse of Court process where a Plaintiff drags a Defendant to trial of suit on merits when jurisdiction of Court itself is doubtful - Preliminary issue framed by Trial Court is with regard to question of limitation - Such issue would not be an issue on jurisdiction of Court and in our considered opinion Trial Court was not justified in framing issue of limitation as a preliminary issue by invoking its power Under Section 9A of Code - High Court has erred in not considering statutory ambit of Section 9A while approving preliminary issue framed by Trial Court and thus rejecting writ petition filed by Appellant - Order accordingly
ORDER
1. Leave granted. This appeal arises out of the judgment and order passed by the High Court of Judicature at Bombay in Writ Petition No. 7459 of 2012, dated 19.12.2012. By the impugned judgment and order, the High Court has dismissed the writ petition filed by the Plaintiff/appellant herein and upheld the order passed by the Trial Court in Special Civil Suit No. 129 of 2011, dated 13.03.2012, whereby the Trial Court had concluded that the plea of limitation can be decided as a preliminary issue Under Section 9A of the Code of Civil Procedure, 1908 (for short, "the Code") and thereby, allowed the parties to lead evidence for determination of the same.
2. The parties in the appeal are referred as arrayed before the Trial Court. The Appellant is the Plaintiff and the Respondents are the Defendants.
3. The facts, in brief, are: the Defendants Nos. 1 to 3 agreed to sell the suit schedule property situated at Mouje Takli Taluka, Pandharpur, District Solapur by an agreement of sale in favour of the Plaintiff for the total consideration of Rs. 12,00,000/-. The Plaintiff in part-payment of the aforesaid agreed consideration had paid Rs. 10,00,000/- to the Defendants Nos. 1 to 3 and secured the possession of suit property. The Plaintiff, on apprehension that the Defendants Nos. 1 to 3 are intending to sell the suit schedule property, filed a Regular Civil Suit No. 472 of 2002 inter alia seeking permanent injunction restraining the Defendants Nos. 1 to 3 from alienating the suit property. During the pendency of the suit, the Defendants Nos. 1 to 3 sold the suit property in favour of the Defendants Nos. 4 to 6. In light of the said development, the Plaintiff filed an application before the Civil Judge (Junior Division), Pandharpur to permit him to withdraw the suit with liberty to file fresh suit for specific performance. The said application was allowed by the learned Civil Judge by order dated 15.09.2010.
4. Subsequently, the Plaintiff had filed Special Civil Suit No. 129 of 2011 for specific performance of the aforementioned agreement. Along with the suit the Plaintiff had filed an application for injunction restraining the Defendants Nos. 1 to 3 from alienating the suit schedule property to the third parties during the pendency of the suit. After service of notice, the Defendants Nos. 1 to 3 and Defendants Nos. 4 and 5 had filed respective applications inter alia requesting the Court that the issue of limitation which determines jurisdiction of the Trial Court be framed as a preliminary issue before considering the suit on merits.
5. The Plaintiff in his defence had stated that since the plea of limitation would be a mixed a question of law and fact, it would require to be considered along with the other issues on merits of the Plaintiffs case and thus, cannot be decided at the threshold as a preliminary issue. The Trial Court, upon consideration of the pleas advanced, has concluded that the issue of limitation as preliminary issue requires to be framed Under Section 9A of the Code to determine the maintainability of the suit and accordingly, had passed order dated 13.03.2012.
6. Aggrieved by the framing of the issue of limitation as a preliminary issue Under Section9A of the Code, the Plaintiff had filed Writ Petition No. 7495 of 2012 before the High Court. By the judgment and order, dated 19.12.2012, the High Court has dismissed the writ petition preferred by the Plaintiff and upheld the framing of preliminary issue on maintainability of the suit by the Trial Court The High Court further observed that no prejudice would be caused to the Plaintiff since the said preliminary issue would be decided after granting opportunity of hearing to both the sides.
7. Aggrieved by the aforesaid judgment and order of the High Court, the Plaintiff is before us in this appeal.
8. The short point that falls for our consideration and decision in this appeal is whether the question of limitation could be considered as preliminary issue Under Section 9A o
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