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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. KARNIK, J.
Kaizar F. Pithapurwala & Ors. - Appellants
Versus
Khurshid Safakat Hussain Ladhi & Ors. - Respondents
Appeal From Order No. 922 of 2022 With Interim Application No. 18699 of 2022
Decided On : 12-10-2022
Jurisdiction - City Civil Court - Bombay City Civil Court Act, 1948 - Section 3 - Suit related to intestate succession - Refusal to dispose of suit on merits - Appeal not maintainable
Fact of the Case:
The appellants filed a suit in the City Civil Court, which was transferred from the High Court due to an increase in pecuniary jurisdiction. The court refused to dispose of the suit on merits, citing lack of inherent jurisdiction under Section 3 of the Bombay City Civil Court Act, as the earlier order returning the plaint was not set aside.
Finding of the Court:
The court held that the appeal under Order XLIII Rule 1(a) of the CPC was not maintainable as the impugned order did not amount to a return of plaint under Order VII Rule 10. The court reserved the liberty of the appellants to challenge the impugned order in appropriate proceedings.
Issues: Maintainability of the appeal under Order XLIII Rule 1(a) of the CPC, refusal to dispose of the suit on merits, lack of inherent jurisdiction under Section 3 of the Bombay City Civil Court Act
Ratio Decidendi: The court found that the impugned order did not constitute a return of plaint under Order VII Rule 10, and therefore, the appeal was not maintainable. The court also emphasized that it did not express any opinion on the merits of the contentions raised by the appellants.
Final Decision: The appeal from the order was held not maintainable, with the liberty of the appellants to challenge the impugned order in appropriate proceedings. The court did not express any opinion on the merits of the contentions raised by the appellants.
JUDGMENT :
1. Heard learned counsel.
2. The order under challenge is dated May 24, 2022 passed below Exhibit ‘1’ by the City Civil Court, Mumbai, thereby refusing to dispose of the suit on merits for the reasons mentioned in the said order.
3. The suit filed by the appellants-plaintiffs, duly contested by the defendants-respondents proceeded till the stage of judgment. When the matter was listed on May 24, 2022, the learned trial Judge was of the opinion that it is not possible to deliver the judgment for the reasons stated in the order. For convenience the order is reproduced, which reads thus :
(Delivered on 24/05/2022)
1. Matter is kept today for Judgment however, for the reasons stated hereunder, it is not possible to deliver Judgment.
2. Plaintiffs had filed Suit No. 521 of 2009 earlier in this City Civil Court wherein, relief in terms of prayer clause (a) was claimed to declare that plaintiffs have 1/2 share in the assets of the deceased as per Muslim Personal Law. Contentions for seeking the said relief were raised in para-5 of the plaint in said earlier suit. By raising same contentions in para-6 of the present plaint, plaintiffs have claimed similar relief of declaration and certain other reliefs. Learned advocate for defendant No.1 pointed out that as per order dtd.24/04/2009 passed in said earlier Suit No.521 of 2009, this court has directed to return the plaint to the plaintiffs for proper presentation by holding that this court has no pecuniary as well as inherent jurisdiction to try and entertain the suit. Reasons for holding that this court has no inherent jurisdiction are recorded in para 10 and 11 of the said order. It would be just to reproduce here para 10 and 11 of the said order which read as under;
“10. Secondly, defendant has also challenged the jurisdiction of this court on the ground of specific bar for City Civil Court to deal intestate manner. For this purpose, we have to make reference to section 3 of the Bombay City Civil Court Act, 1948 sub clause () provides that the suit in relation to testamentary intestate of matrimonial aspects are to be dealt by High Court. Thus, City Civil Court is expressly barred from dealing with the matter raising aspect relating to intestate succession.
11. In present case, the plaintiff himself is claiming rights of succession, as per Shia Personal Law by making proposition in para 5 of the plaint. According to plaintiff, due to provisions of Mohammdan Law that are entitled for 1/2 share in the assets of deceased. Thus virtually plaintiff is requiring the court to decide intestate succession which is expressly barred by section 3 of the City Civil Court Act therefore this court also does not have inherent jurisdiction to try and entertain the suit...”
3. It is not in dispute that order passed by this court in earlier Suit No.521 of 2009 was not challenged by the plaintiffs. Learned advocate for the plaintiffs submitted that in view of the order passed by this court in the earlier suit, plaintiffs had filed the present suit before Hon’ble High Court in its Original Ordinary Jurisdiction however, on account of the increase in the pecuniary jurisdiction limits of this court, suit has been transferred to this City Civil Court and plaintiffs are not at fault in that regard.
4. It is an admitted fact that this suit is transferred to this City Civil Court on account of increase in pecuniary jurisdiction limits. Plaint in earlier suit was returned to the plaintiffs for presentation in proper court by holding that this court has no inherent jurisdiction also to try and entertain the suit in view of the bar under Section 3 of the City Civil Courts Act. It is not in dispute that order passed by this court in earlier suit that this order has no inherent jurisdiction to try and entertain the suit has not been set aside. Though the plaintiffs have presented a fresh plaint instead of presenting the returned plaint, the relief of declaration claimed in this suit is based on the same
The main legal point established in the judgment is the interpretation of the provisions of Order VII Rule 10 of the CPC and the application of Section 3 of the Bombay City Civil Court Act, 1948 in d....
The valuation of a suit is determined by the nature of the relief claimed, not solely by the market value of the property involved.
The subsequent suit on the same cause of action for relief that could have been sought in the City Civil Court was not maintainable without prior Order II Rule 2 leave.
Dismissal of suit for default does not bar a fresh suit on distinct grounds; res judicata applies only when parties and cause of action are the same.
Even a trespasser cannot be dispossessed without following the due process of law - If the plaintiffs are in possession of the suit land, the plaintiffs ought to be protected by way of an injunction ....
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