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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sharmila U. Deshmukh, J
Palli Kishore Mavani – Appellant
Versus
Damodar Bhavan Co.op. Housing Society ] Limited – Respondent
JUDGMENT:
1. The First Appeal is at the instance of the original Plainti challenging the order dated 10th August, 2016 passed by the City Civil Court, Borivali Division, Dindoshi, Goregaon, Mumbai in S.C.Suit No.2432 of 2013, answering the preliminary issue of limitation framed under Section 9A of the Code of Civil Procedure, 1908 (for short, “CPC”) against the Plaintiff, resulting in dismissal of the suit.
2. S.C. Suit No.2432 of 2013 was filed for declaration that the consent terms dated 26th September, 1984 filed in Suit No.1782 of 1984 are based on misrepresentation and fraud and liable to be quashed and set aside. An Application below Exhibit “8” came to be filed by Defendant No.1-Society on 30th August, 2013 seeking framing of preliminary issue under Section 9A of CPC as to the maintainability of suit in view of law of limitation and whether the suit is filed within the period of limitation.
3. The Application pleads that the suit claim is not maintainable as the declaration was made in the year 1990 and the prayer clause (a) seeks time barred declaration being beyond period of three years.
4. The Application came to be resisted by the Plaintiff claiming that the Defendant No.1 c
The issue of limitation cannot be framed as a preliminary issue under Section 9A of CPC, as established in Nusli Neville Wadia vs. Ivory Properties.
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.
The court retains discretion to decide preliminary issues related to jurisdiction or limitation but may also resolve all issues simultaneously to avoid protracted litigation.
A disputed question cannot be decided as a preliminary issue.
The principle of res judicata and the provisions of Order XIV Rule 2 of the Code of Civil Procedure, 1908 were central to the court's decision.
The principle of res judicata bars re-litigation of matters already decided, confirming that the earlier judgment is binding and the current suit is not maintainable.
Jurisdictional questions, including maintainability of a suit, must be assessed as preliminary issues under CPC Order 14 Rule 2 to ensure efficiency in legal proceedings.
The court established that a consent decree bars subsequent suits on the same matter, reinforcing the principles of res judicata and the limitations on challenging such decrees under the CPC.
The main legal point established in the judgment is that a review application cannot re-agitate issues already considered in a previous appeal, and the grounds for exemption from the law of limitatio....
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