The Trial Court cannot frame an issue under Section 9-A that disposes of a suit or cause of action in part; jurisdictional issues must be resolved for the entire suit.

JUDGMENT :

Amit Borkar, J.

1. The following question of law has been referred by the learned Single Judge of this Court in the order dated 20 August 2013 for resolution by the Full Bench:

“Whether in exercise of power under Section 9-A of the Code of Civil Procedure, 1908 (for short ‘CPC’), the Trial Court is competent to frame an issue, disposing of the suit in part or the cause of action in part ?”

2. For the determination of the aforesaid question, it is unnecessary to state the history of litigation in detail however a brief reference to the facts noticed in the referral order dated 20 August 2013 would suffice.

3. In Regular Civil Suit No.45 of 2011, the plaintiffs claim relief of declaration that the sale deed dated 2 August 1965 be declared illegal and not binding upon the plaintiffs and defendant Nos.4 to 8 and to cancel the same. By way of prayer clause (b), relief of permanent injunction restraining defendant Nos.1 to 3 from illegally dispossessing the plaintiffs and defendant Nos.4 to 8 from the suit property was claimed.

4. On 3 May 2011, defendants Nos.1 to 3 filed an application to frame a preliminary issue of limitation. The Trial Court, by order dated 9 June 2011, framed the issue of limitation in the exercise of power under Section 9-A of the CPC. The plaintiffs, therefore, filed the present writ petition challenging the order framing the issue of limitation in a suit for specific performance and injunction as a preliminary issue under Section 9-A of the CPC.

5. Upon hearing submissions of the parties to the petition, the learned Single Judge of this Court found himself unable to agree with the view expressed by the Division Bench of this Court in the case of Ferani Hotels Private Limited Vs. Nusli Nevile Wadia & Ors. reported in 2013 (3) Bom. C.R. 699. The controversy that stood raised before the Division Bench in the case of Ferani Hotels Private Limited (Supra) arose out of an objection raised before the Single Judge of this Court in a suit as to the maintainability of the suit on the ground of bar of limitation. The Single Judge accepted the defendants' request and framed an issue of limitation under Section 9-A of the CPC; however, refused to grant ad-interim relief exercising power under Section 9-A of the CPC. Therefore, both plaintiffs and defendants filed appeals before the Division Bench. In the said appeals, on behalf of the plaintiffs, it was urged that an objection as to the jurisdiction of the nature contemplated by sub- Section (1) of Section 9 is an objection that, if upheld, must be capable of disposing of the entire suit. In view of the reasons in paragraph 20 of the judgment, the Division Bench repelled the submission on behalf of the plaintiffs, holding that it would be open for the Trial Court while exercising power under Section 9-A of the CPC to dismiss part of the suit or cause of action in part.

6. While considering submissions in the present petition, the Single Judge found himself unable to accept the view expressed by the Division Bench of this Court in the case of Ferani Hotels Private Limited (Supra), and therefore in exercise of power under Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 1960, directed aforesaid question to be placed before Hon'ble the Chief Justice for constitution of appropriate Bench as deemed fit by Hon'ble the Chief Justice. Accordingly, the Hon'ble the Chief Justice has constituted the present Bench for the determination of the issue referred to above.

7. At the outset, Advocate for Petitioners submitted that in view of the amendment to Section 9-A of the CPC having the effect of deletion of provision, the issue referred need not be answered. He further submitted that even if the Court holds that suit is barred by limitation, it only disposes of suit or cause of action in part in respect of relief of specific performance, but relief of permanent injunction would survive and, therefore, the Trial Court can not frame such issue in exercise of power