Back
2015 Supreme(Bom) 1045
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J.
Sohail Ismail Haji Noor Mohammed & Anr. - Plaintiffs
Versus
Mohd. Ismail Haji Noor Mohd. & 3 Ors. - Defendants
NOTICE OF MOTION (L) NO. 1464 OF 2014 IN SUIT NO. 1978 OF 2011
Decided On : 10.07.2015
Advocate Appeared:
Mr. V. M. Talreja, for the Plaintiffs.
Mr. R. R. Mishra, for the Defendant No.1.
Mr. Raj Patel,i/b M/s. Sonal Doshi & Co., for the Defendant No. 2.
Mr. Neel D’Souza, i/b MK/s. Wadia Ghandy & Co., for the Defendant No. 4.
The main legal point established is that a jurisdictional objection under Section 9A of the Code of Civil Procedure, 1908, must be decided as a preliminary issue, irrespective of the parties' actions, and the provision is a self-contained code that must be followed.
Headnote:
Deed of Trust - Declaration of illegality - Code of Civil Procedure, 1908, Section 9A - Summary
Fact of the Case:
The suit involved a declaration that a Deed of Trust and a Sale Deed were illegal and void, and a claim for ownership share in the suit property. The 2nd Defendant sought to raise a preliminary issue under Section 9A of the Code of Civil Procedure, 1908, regarding the limitation of the suit.
Finding of the Court:
The court held that the preliminary issue under Section 9A must be framed and decided, irrespective of the Plaintiff's withdrawal of the Notice of Motion, and evidence on the issue of limitation was to be led by the Plaintiffs.
Issues: The main issue was whether the suit was within limitation, and the court addressed the procedural aspects of raising a preliminary issue under Section 9A.
Ratio Decidendi: The court emphasized that the jurisdictional objection under Section 9A must be decided irrespective of the parties' actions, and the provision is a self-contained code that must be followed.
Final Decision: The court framed the preliminary issue on limitation and directed the Plaintiffs to file evidence restricted to the question of limitation, and the suit was listed for marking documents on the preliminary issue.
1. The Suit is for declaration that a Deed of Trust dated 13th December 2004 and a Sale Deed dated 26th April 2006 are both illegal, bad in law and void. The Plaintiffs also seek a declaration of 1/4th share each in the suit property and a similar share in mesne profits and conducting charges. An additional declaration as to joint ownership to the extent of 1/4th share each in certain properties are also sought in prayer (c),and this is followed by prayer for partition.
2. The 1st Defendant is the father of 2nd Plaintiff and of the 2nd Defendant. Defendants Nos. 3 and 4 are alleged to be licensees in respect of some immovable properties.
3. At this stage, I am not concerned with the rival contentions on merits. It appears that the Plaintiffs first filed Notice of Motion No. 2435 of 2011. They then filed Notice of Motion (L) No. 1777 of 2014 for interim reliefs seeking that the suit be expedited. The 2nd Defendant filed Notice of Motion (L) No. 1464 of 2014 on 25th June 2015. In this, the 2nd Defendant sought a recall of an order dated 22nd August 2013 in Review Petition (L) No. 26 of 2013 in the Plaintiffs’ first Notice of Motion No. 2435 of 2011.
4. It appears that on 19th September 2014 several orders were passed. First, the learned Single Judge framed issues in the Suit. The first issue was whether the Suit was barred by limitation. On that very date, the learned Single Judge also disposed of the Plaintiffs’ Notice of Motion (L) No. 1777 of 2014 observing that since it was a Motion that only sought that the Suit be expedited, the Motion could be allowed to be withdrawn. This was permitted. The learned Single Judge on that day also held that the 2nd Defendant’s Notice of Motion (L) No. 1464 of 2014 (for recalling the order in the Review Petition and for framing a preliminary issue) did not survive in view of the withdrawal of the Plaintiffs’ Notice of Motion (L) No. 1777 of 2014.
5. The 2nd Defendant carried the order in his Notice of Motion (L) No. 1464 of 2014 in Appeal (L) No. 393 of 2015. By an order dated 2nd July 2015, the impugned order dated 19th September 2014, i.e., the one that said that the 2nd Defendant’s Notice of Motion did not survive, was set aside. The 2nd Defendant’s Notice of Motion (L) No. 1464 of 2014 was restored to file upon the matter being remanded and the Appeal was accordingly allowed.
6. This is how Notice of Motion (L) No. 1464 of 2014 filed by the 2nd Defendant is listed before me today. There are three prayers in this Notice of Motion and they are thus:
“(a) that this Hon’ble Court be pleased to recall and vacate the limited relief granted to the Plaintiff vide the Order dated 22nd August 2013 in Review Petition (L) No. 26 of 2013 in Notice of Motion No. 2435 of 2011.
(b) that this Hon’ble Court be pleased to frame an issue of limitation under Section 9A of the Code of Civil Procedure and be further pleased to decide the said issue as a preliminary issue in the above suit.
(c) pending the hearing and final disposal of this Notice of Motion and thereafter pending the hearing and final disposal of the preliminary issue of jurisdiction, this Hon’ble Court be pleased to stay any further proceedings of the main suit.”
7. Mr. Patel, learned Counsel for the 2nd Defendant, readily accepts this and agrees that it is prayer (b) that should have been numbered as prayer (a). This is obvious. If the 2nd Defendant succeeds on the preliminary issue under Section 9A of the Code of Civil Procedure, 1908, the entire suit will not survive and will be dismissed as barred by limitation.
8. The point however, that is canvased before me by Mr. Talreja, learned Advocate for the Plaintiffs, is somewhat different. He makes two submissions. The first of these is that since an issue on limitation has already been framed in the suit itself under Order XIV of the Code of Civil Procedure, 1908 (“CPC”), no Defendant can be permitted to leapfrog the entire process of the trial of the suit by now raising a preliminary issue and th
