Thursday 8 May 2014

Whether court should record findings on merits when it is returning plaint for want of jurisdiction?


 I have considered the contentions canvassed by the learned Counsel for the parties. On the backdrop of the above referred facts, it is evident that the plaint was returned to the appellant/plaintiff under Order VII Rule 10 of Code of Civil Procedure since the trial Court had held that it does not have jurisdiction to try the suit and, therefore, appellant is required to present the plaint in the competent Court having jurisdiction to try the suit. Once the Court comes to the conclusion that it has no jurisdiction to entertain the suit, the only course open to
the Court is to return the plaint to the plaintiff to be presented in the competent Court and any finding recorded on merits of the matter would be of no consequence. If 
plaint is returned for want of jurisdiction and the same Court also records findings on merits, such findings are 
without jurisdiction and null and void. Similarly, the very purpose of returning the plaint for want of jurisdiction would be frustrated and that would also foreclose the issue in the plaint, which was returned to the plaintiff to be presented to the competent Civil Court. In view of this 
legal position, the findings recorded by the trial Court on issue Nos. 1, 2 and 3 are without jurisdiction and it will be open for the competent Court at Lucknow to consider the entire claim of the appellant/plaintiff on its own merits.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9577 OF 2013 
Mumbai International Airport Pvt. Ltd.
Vs.

Edward alias Adward Paul Machado & Ors.

R. M. SAVANT, J.
4th December 2013
Citation;2014(2)ALLMR794 Bom

The Writ Jurisdiction of this Court under Article 227 of the Constitution 

of India, is invoked against the order dated 1­3­2013, passed by the Learned 
Judge of the City Civil Court, Dindoshi, Mumbai to the extent it decides the 
application   raising   the   issue   of   limitation   and   questioning   the   inherent 
jurisdiction of the City Civil Court, Bombay to entertain the Suit, is concerned. 
By the said order,  three issues were decided namely the pecuniary jurisdiction 
of   the   City   Civil   Court,   Bombay   to   entertain   the   Suit,   the   issue   of   bar   of 
limitation   and   the   inherent   jurisdiction   of   the   City   Civil   Court   Bombay.   As 
indicated above the challenge is restricted to the decision rendered on the two 

other issues other than the issue of pecuniary jurisdiction.
The Respondent No.1 herein is the original Plaintiff who has filed the 

Suit in question for an injunction apprehending that the Petitioner/Defendant, 
as also the other Defendants to the Suit would dispossess him from the suit 
property.   The   Plaintiff   by   way   of   an   amendment   vide   Chamber   Summons 
No.513 of 2011 which was allowed on 5­11­2011 included a prayer seeking 
declaration   of   perfection   of   title   by   adverse   possession.   Against   the   order 

allowing  the   amendment  application,  the   matter   had  reached  this  Court  by 
way of a Writ Petition No.10404 of 2011 filed by the Petitioner by order dated 
12­12­2011   this   court   had   dismissed   the   said   Petition.   Against   the   said 
dismissal the Petitioner herein had carried the matter to the Apex court by way 
of Special Leave Petition No.1038 of 2012, the Apex Court by order dated 12­1­
2012,   confirmed   the   order   passed   by   this   Court   and   thereby   upheld   the 
amendments which were allowed. However, the Apex Court granted liberty to 
the parties to take up all points in issue including the question of jurisdiction 
and limitation. By the said order, the Apex Court also expedited the hearing of 
the   Suit   and   directed   that   the   same   to   be   disposed   of   within   6   months.   It 
appears that issues in the Suit came to be framed on 14­2­2012 and thereafter 
the Petitioner herein filed an application that the issues relating to the inherent 
jurisdiction, limitation and the pecuniary jurisdiction of the City Civil Court, 
Bombay be tried as preliminary issues under Order 14 Rule 2 of the CPC. It 
appears that the said application filed by the Petitioner was consented to by the 
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parties to the Suit. The Trial Court accordingly allowed the said application 
filed by the Petitioner and decided to take up the said three issues as issues 
which could be decided under Order 14 Rule 2 of the CPC. Pursuant thereto, 
the Petitioner and the Respondent No.2 being Defendant Nos.2 and 3 were 
directed to lead evidence first. It appears that the evidence was lead on behalf 
of the Petitioner i.e. the Defendant No.3 in the Suit and the first witness of the 
Petitioner was also cross­examined at length and the said cross­examination 

was completed. The affidavit of evidence of the second witness was also filed. 
It seems that the Respondent No.1 herein i.e. the original Plaintiff filed Notice 
of Motion No.924 of 2012 seeking review of the order dated 27­2­2012 on the 
ground that he had been incorrectly advised  to give consent. The said Notice 
of Motion filed by the Respondent No.1 was dismissed by the Learned Judge of 
the City Civil Court Bombay by imposing costs of Rs.10,000/­. The Respondent 
No.1 challenged the said order by way of Writ Petition No.3863 of 2012 which 
Petition came to be dismissed and thereafter the Special Leave Petition filed by 
the  Respondent  No.1 in   the  Apex  Court  came   to be  dismissed  by the  Apex 
Court by order dated 6­6­2012. The parties thereafter completed their evidence 
in respect of the  said three  issues  and the  parties proceeded to make their 
submissions  on  the   said  three   issues.  The  Trial   Court  has  by  the   impugned 
order dated 1­3­2012, has held that considering the subject matter of the Suit 
where the Plaintiff has claimed perfection of title by adverse possession and 
considering the value of the land involved in the Suit, the subject matter of the 

Suit   would   not   lie   within   the   pecuniary   jurisdiction   of   the   City   Civil   Court 
Bombay and therefore returned the plaint under Order 7 Rule 10A of the CPC, 
for presentation to the Court having  jurisdiction. The Trial Court also held that 
the Suit as filed is within limitation and also held that the City Civil Court 
Bombay   would   have   inherent   jurisdiction   to   entertain   the   Suit.   It   is   not 
necessary to dilate on the findings recorded by the Trial Court on the said two 
issues looking to the nature of the challenge to the order passed as also in view 

of   the   nature   of   the   order   that   is   to   be   passed   in   the   above   Petition.   As 
indicated above, the impugned order is challenged to the extent that it decides 
the issue of limitation as well as the inherent jurisdiction of the City Civil Court 
Bombay     after   holding   that   it   does   not   have   the   pecuniary   jurisdiction   to 

entertain the Suit.
Heard the Learned Counsel for the parties. The Learned Senior Counsel 
for the Petitioner Mr. Naik principally contended that once the Trial Court came 
to a conclusion that it is coram non judice it ought not to have proceeded to 
render its decision on the other two issues namely the issues of limitation and 
the inherent jurisdiction. The Learned Senior Counsel Mr. Naik in support of 
the said contention would seek to rely upon the Judgment of the Apex Court 
reported   in  AIR   1965   SC   338  in   the   matter   of  Aathmanathaswami  
Devasthanam   Vs.   K.   Gopalaswami   Ayyangar  wherein   the   Apex   Court   has 
observed that since the Civil Court did not have the jurisdiction it could not 
have decided any question on merits. The Learned Senior Counsel then relied 

upon   the   Judgment   of   a   Learned   Single   Judge   of   this   Court   reported   in 
2004(1) MhLJ   50  reported in  Shreyans Industries Vs. State of U.P
. & Ors. 
wherein the principle enunciated by the Apex Court has been followed by the 
Learned Single Judge of this Court.

Per contra, the Learned Senior Counsel for the Respondent No.1 would 
submit that the Petitioner having proceeded with the other two issues before 
the   Trial   Court   has   thereby   acquiesced   in   the   adjudication   of   the   said   two 

issues. The Learned Counsel would contend that the other two issues namely 
the issue of limitation as well as the inherent jurisdiction are the issues which 
concerned the jurisdiction of the City Civil Court Bombay to entertain the Suit 
and therefore the Trial Court was required to decide the said issues as they 

were raised by the Petitioner herein i.e.  the Defendant No.1.
Having   heard   the   Learned   Senior   Counsel   for   the   parties,   I   have 
considered the rival contentions. No doubt in the instant case the issues which 
are raised are the issues which go to the root of the matter and can be said to 
be the issues which impinge upon the jurisdiction of the Court to entertain the 
Suit. However, the issue of pecuniary jurisdiction can be said to be the defining 
issue as the other two issues can be only tried by the Court which has the 
jurisdiction to entertain the Suit. This is a case where three issues which can be 
said  to  be   the  issues  of   jurisdiction   were   raised  and   the   issue   of  pecuniary 
jurisdiction was not a stand alone issue. Hence once the Trial Court came to a 
conclusion that it did not have the pecuniary jurisdiction to entertain the Suit it 

ought   not   to   have   proceeded   to   decide   the   other   two   issues,   rendering   a 
decision   on   the   other   two   issues   when   it   did   not   have   the   pecuniary 
jurisdiction, would result in the said issues being decided by a Court which  is 
coram non judice. In the said context, the Judgment of the Apex Court in case 
of  Anthmanthaswami (Supra)  can be gainfully referred to paragraph 13 of 
the said report is material and is reproduced hereinunder:

13. The last point urged is that when the Civil Court had no 
jurisdiction  over  the  suit,  the  High Court could not have 
dealt with the  cross­objection  filed  by  the  appellant with 
respect   to   the   adjustment   of   certain   amount   paid   by   the 
respondent. This contention is correct. When the Court had 
no jurisdiction over the­subject matter of the suit it can­ not 
decide any question on merits. It can simply decide on the 
question of jurisdiction and coming to the conclusion that it 
had no jurisdiction over the matter had to return the plaint.
The Apex court has laid down the proposition that once the court comes 
to a conclusion that it had no jurisdiction it could not have dealt with the Suit 
on   merits.   The   said   proposition   of   the   Apex   Court   has   been   followed   by   a 
Learned Single Judge of this court in Judgment of Shreyans (supra) paragraph 
6 of the said report is material and is reproduced hereinunder :
6.   I   have   considered   the   contentions   canvassed   by   the 
learned   Counsel   for   the   parties.   On   the   backdrop   of   the 
above   referred   facts,   it   is   evident   that   the   plaint   was 
returned to the appellant/plaintiff under Order VII Rule 10 
of Code of Civil Procedure since the trial Court had held 
that   it   does   not   have   jurisdiction   to   try   the   suit   and, 
therefore, appellant is required to present the plaint in the 
competent Court having jurisdiction to try the suit. Once 
the   Court   comes   to   the   conclusion   that   it   has   no 
jurisdiction to entertain the suit, the only course open to 


the   Court   is   to   return   the   plaint   to   the   plaintiff   to   be 
presented in the competent Court and any finding recorded 
on   merits   of   the   matter   would   be   of   no  consequence.  If 
plaint   is   returned   for   want   of   jurisdiction   and   the   same 
Court   also   records   findings   on   merits,   such   findings   are 
without jurisdiction and null and void. Similarly, the very 
purpose   of   returning   the   plaint   for   want   of   jurisdiction 
would be frustrated and that would also foreclose the issue 
in   the   plaint,   which   was   returned   to   the   plaintiff   to   be 
presented   to   the   competent   Civil   Court.   In   view   of   this 
legal position, the findings recorded by the trial Court on 
issue Nos. 1, 2 and 3 are without jurisdiction and it will be 
open for the competent Court at Lucknow to consider the 
entire claim of the appellant/plaintiff on its own merits. In 
the circumstances, the appellant is entitled to take back the 
plaint from the trial Court at Nagpur and file the same in 
the appropriate Court at Lucknow within a period of ninety 
days from today, failing which the suit shall be deemed to 
have been dismissed.
In my view, therefore, once the Trial Court came to a conclusion that did 
not have the pecuniary jurisdiction to entertain the Suit it ought not to have 
proceeded for rendering its decision on the other two issues and ought to have 
left   the   said   issues   to   be   decided   by   the   Court   which   has   the   pecuniary 
jurisdiction to entertain the Suit. The impugned order to the extent it renders 
the decision on the issue of limitation and the inherent jurisdiction of the City 
Civil   Court   would   therefore   have   to   be   quashed   and   set   aside   and   is 
accordingly quashed and set aside. The impugned order would therefore be 
restricted to the decision rendered on the issue of pecuniary jurisdiction only. 
The Petitioner would be at liberty to raise the issue of bar of limitation and the 
inherent jurisdiction before this Court where the Suit is already filed pursuant 
to the impugned order.  The concerned Court would have to de­novo consider 

the said issues.
bear their respective costs of the Petition.

Rule is accordingly made absolute in the aforesaid terms with parties to 

At this stage, the Learned Counsel appearing for the Respondent No.1 
seeks stay of the instant order to approach the Apex Court. In the facts and 
circumstances of the case, the instant order is stayed for a period of 6 weeks 
from date.
[R.M.SAVANT, J]



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