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HIGH COURT OF BOMBAY
S. M. MODAK, J
Ashok Maruti Gophne – Appellant
Versus
Ulhas Baban Kawade – Respondent
Second Appeal No.711 of 2019 | Civil Application No.559 of 2019
For the Appellants/Petitioners: Mr. Sanjiv Sawant, Mr. Abhishek Matkar, Mr. Malhar Bageshwar, Mr. Abhishek Deshmukh
For the Respondents: Mr. Mukund Pise
The court clarified that the dismissal of a suit based on jurisdictional objections should not preclude adjudication on the merits, especially regarding requests for permanent injunction.
Headnote:(A) Code of Civil Procedure - Section 9A - Maharashtra Regional Town Planning Act - Section 149 - Jurisdiction objection upheld by trial and appellate courts - Suit dismissed without hearing merits on prayer for permanent injunction - Court reviews appropriateness of jurisdiction dismissal, emphasizes right to access justice and remands for fresh inquiry before trial Court. (Paras 4, 9, 23, 25)
(B) Legal Principle - Courts cannot deny a party the opportunity to present their case nor overlook principal issues in lawsuits. (Paras 1, 24, 25)
Facts of the case:
The Plaintiffs challenged an entry in the inquiry register regarding their ancestral property, seeking a declaration and a permanent injunction against the Defendants.
Findings of Court:
Existing jurisdiction objections should not bar a party from seeking principal relief; remanding for fresh inquiry enables the Court to consider all arguments and evidence.
Issues: Main issue revolves around the maintainability of a suit when jurisdiction objections were raised and sustained without examining the core issues of the case.
Ratio Decidendi: The court holds a suit for permanent injunction can be maintained even if a jurisdiction objection is cited early in proceedings. This requires stringent scrutiny of jurisdictional grounds before denying relief.
Result: Appeal allowed, prior judgments set aside, and the case is remanded for retrial.
| Table of Content |
|---|
| 1. court addresses jurisdiction objections and implications for maintaining a suit. (Para 1 , 4 , 5 , 6) |
| 2. emphasis on the necessity for evaluation of principal issues regarding injunction requests. (Para 8 , 13 , 14) |
| 3. discussion of permissibility of raising objections at higher court levels. (Para 15 , 20 , 21) |
1. Heard learned Advocate for the Appellants/Plaintiffs and learned Advocate for the Respondents-Defendants.
2. In suit filed by the Plaintiffs for declaration and permanent injunction, the Defendants took preliminary objection about jurisdiction as contemplated under section 9A of the Code of Civil Procedure . That objection was upheld by the trial Court as per order dated 28th September 2011. The said order was challenged by the Plaintiffs before the First Appellate Court. However, the First Appellate Court as per the judgment dated 19th June 2017 refused to interfere in the order passed by the trial Court.
3. By way of this Second Appeal there is challenge to these judgments. When jurisdiction objection was decided by the trial Court, the parties have not adduced oral evidence but only relied upon the pleadings and documents.
4. During arguments learned Advocate Shri Sawant for the Appellants submitted that there are two reliefs sought in the plaint.
One is for declaration that the entry in inquiry register of the Town Planning Authority dated 4/03/1995 in respect of the area of 9.27 Are be declared as illegal, arbitrary and liable to be set aside and second relief sought is for permanent injunction against the Defendants from disturbing possession of the Plaintiffs over the suit property.
5. During arguments learned Advocate Shri Sawant submitted that now the Appellants did not want to challenge the findings recorded by both the Courts below that the suit is not maintainable in view expressed provision of section 149 of the Maharashtra Regional Two Planning Act (MRTP Act). He submitted that both the Courts below ought not to have dismissed the suit in its entirety but ought to have continued suit so far as prayer for permanent injunction is concerned.
6. In view of that he submitted that he is restricting his argument so far as dismissing the suit in its entirety. According to him even though jurisdiction objection was upheld both the Courts below ought to have continued the suit for permanent injunction. In view of this submission, by consent it is decided to hear this Second Appeal finally.
7. Shri Sawant submitted that question No.(d), (e), (l) and (n) are relevant substantial questions of law. I have read it. Whereas learned Advocate for the Respondents submitted that simplicitor suit for injunction is not maintainable and he relied upon few judgments. To counter that arguments learned Advocate Shri Sawant submitted that said objection was not taken before the Courts below and hence cannot be taken. He also relied upon few judgments. I will deal with these judgments relied upon by both sides while answering the substantial questions of law.
8. Hence, Admit the Second Appeal on the following substantial questions of law :
“Whether the trial Court as well as the First Appellate Court committed wrong in dismissing the suit in its entirety (that is to say even for permanent injunction) while upholding jurisdiction objection taken as per the provisions of section 149 of the MRTP Act” ?.
What order ?
“(D)Whether the learned District Court has seriously erred by not even considering the fact that the prayer for permanent injunction is the principal relief in the suit filed by the Appellants, which relief can only be granted by a Civil Court “? (E) That it ought to have been appreciated by the learned District Judge that the application preferred by the Defendant No.3 under section 9A of the CPC ought not to have been entertained for the reason that the Civil Court is having jurisdiction to grant permanent injunction as sought by the Appellants in Regular Civil Suit No.508 of 2010.
(L) Whether the learn
