When can the court decide the issue of res judicata as a preliminary issue?

 We are unable to accept the submission of the Appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by this Court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

Read full Judgment here: Click here

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Whether Issue Of Limitation Can Be Determined As A Preliminary Issue If It Can Be Decided On Admitted Facts?

 After taking note of the fact that going by the decision in Nusli Neville Wadia’s case8, in a case where question of limitation could be decided based on admitted facts it could be decided as a preliminary issue under Order XIV, Rule 2(2)(b), CPC., the two Judge Bench held that in the case before their Lordships the question of limitation could not have been decided as a preliminary issue under Order XIV, Rule 2 of CPC as determination of the issue of limitation in that case was not a pure question of law. In the said contextual situation it is worthy and appropriate to refer to paragraphs 51, in so far as it is relevant, and 52 of the decision in Nusli Neville Wadia’s case8 and they read thus:-

“51.[…] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and is the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.

52. […] In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed and the question of law is dependent upon the outcome of the investigation of the facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976.”

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

CIVIL APPEAL NO.10834 OF 2010

SUKHBIRI DEVI & ORS. Vs UNION OF INDIA & ORS.

Coram: AJAY RASTOGI; J., C.T. RAVIKUMAR; J.

Author: C.T. RAVIKUMAR, J.

Dated:  September 29, 2022

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When the court should not decide issue of limitation as a preliminary issue?

 In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976. {Para 52}

15. Since the determination of the issue of limitation in this case is not a pure question of law, it cannot be decided as preliminary issue under Order XIV Rule 2 of the CPC. 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 814 of 2022

M/s Mongia Realty and Buildwell Private Limited Vs Manik Sethi

Coram: Dr. Dhananjaya Y. Chandrachud; Surya Kant, JJ.

Author: Dr. Dhananjaya Y. Chandrachud, J.

Dated: January 31, 2022

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When the court can decide issue of limitation and jurisdiction of court as preliminary issue?

 Before this Court in Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557, the issue was whether the issue of limitation can be determined as a preliminary issue under Order XIV Rule 2. The three-judge bench of this court observed that if the issue of limitation is based on an admitted fact, it can be decided as a preliminary issue under Order XIV Rule(2)(b). However, if the facts surrounding the issue of limitation are disputed, it cannot be decided as a preliminary issue. This Court observed as follows:
51. […] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.
52. In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976.{Para 14}

15. Since the determination of the issue of limitation in this case is not a pure question of law, it cannot be decided as preliminary issue under Order XIV Rule 2 of the CPC. Hence, we allow the appeal and set aside the judgment of the trial Judge dated 16 August 2018 and of the Single Judge of the High Court dated 4 September 2019. The issue of limitation which has been framed by the learned trial Judge may be decided, along with other issues at trial. 
Supreme Court

JUSTICE Dr Dhananjaya Y Chandrachud JUSTICE Surya Kant

M/s Mongia Realty and Buildwell Private Limited Vs. Manik Sethi

Civil Appeal No. 814 of 2022

31st January 2022

Author: Dr Dhananjaya Y Chandrachud, J.

Citation: 2022 ALL SCR (ONLINE) 152

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When court can decide issue of res judicata as preliminary issue?

 E.1 Res Judicata as a Preliminary issue

19. Before we undertake an analysis on the applicability of the principles of res judicata vis-à-vis the three suits that were initiated with regard to the suit property it is necessary to discuss the submission of counsel for the appellant that res judicata, being a mixed question of law and facts ought not to have been decided as a preliminary issue by the trial court. It was contended that any determination of the application of the principle of res judicata can only be made after evidence is adduced pursuant to a full-fledged trial. 

21. Order 14 Rule 2 CPC states that if questions of fact and law arise in the same suit, the court can dispose the case on the question of law alone if it relates to the following:

“(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may […]”

(emphasis supplied)

22.Justice K. Ramaswamy writing for a three judge bench of this court in Sushil Kumar Mehta v. Gobind Ram Bohra(1990) 1 SCC 193 held that the principle of res judicata cannot be fit into the pigeon hole of ‘mixed question of law and facts’ in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided. The court while determining the applicability of the plea of res judicata would determine if there has been any material alteration in the facts and law applicable:

“26. The doctrine of res judicata under Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus, the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.”

23. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy (1970) 1 SCC 613, the application of the plaintiff in the Court of the Civil Judge for the determination of Standard Rent under Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 was dismissed on the ground that the statute did not apply to a case of open land let for the construction of buildings. This decision was affirmed in appeal. However, in view of another decision of the Bombay High Court which held that the statute would be applicable to leased land, the plaintiff filed a fresh proceeding in the Court of Small Causes. The Trial Court and the High Court held that the subsequent suit was barred by res judicata. However, Justice J C Shah writing for a 3-judge bench held that the subsequent suit was not barred by res judicata:

“5. But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative

direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata.

11. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.

(emphasis supplied)

The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of section 11 CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable. We are unable to accept the submission of the appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by this court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 10946 of 2014

The Jamia Masjid Vs  Sri K V Rudrappa

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Whether an issue of non issuance of notice U/S 487 of BPMC Act can be decided as preliminary issue?

  Contention was also raised that the objection to limitation is based on Section 487 of the Bombay Provincial Municipal Corporations Act, 1949. Section 487(1) provides that no suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act; (a) until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney. Advocate, Pleader or agent, if any for the purpose of such suit, nor (b) unless it is commenced within six months next after the accrual of the cause of action. Stress is laid on Clause (b) which provides that the suit has to be filed within six months next after the accrual of the cause of action. The contention is that since the cause of action is stated to have arisen in June and July, 1993 and the suit having been filed in January 1995, it is said to be beyond the period of six months next after the accrual of cause of action. However, while advancing this argument, the provisions of Sub-section (1) of Section 487 are totally ignored. Sub-section (1) of Section 487 provides that the limitation of six months in Clause (b) would apply in cases where "any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act." Apparently, the suits required to be filed within six months next after the accrual of the cause of action are in relation to the acts done or purported to have been done in exercise of the powers under the said Act or acts which are otherwise required to be done under the said Act having been neglected to be performed by such authorities. It does not refer to the acts which have been done de hors the provisions of the Act or in contravention of the Act. Any act performed by a statutory body de hors the powers under the Act or in contravention of the provisions of the Act cannot be said to be an act done or purported to be done in pursuance or execution or intended execution of the said Act and therefore merely by referring to the pleadings in the written statement such an issue cannot be decided. It will require recording of evidence to ascertain the exact nature of the act performed by the parties and whether such acts can be said to be acts done or purported to be done in pursuance or execution or intended execution of the said Act and for the same reason the parties would be entitled to lead evidence in the matter. Being so, the parties will have to establish certain facts in that regard before the Court could arrive at any conclusive finding on such aspect and hence such an issue cannot be considered as an issue purely of law but it will be an issue of law and facts which will require recording of evidence and considering the same, such an issue cannot be said to be in each and every case a preliminary issue.{Para 20}

Citation; 2003(3)BomCR814, 2003(2)MhLj219;2003 (1) ALL M R 674

IN THE HIGH COURT OF BOMBAY

Civil Revision Appln. No. 752 of 2002

Decided On: 05.09.2002

Appellants: Shraddha Associates and Anr.
Vs.
Respondent: St. Patrick's Town Co-operative Housing Society Ltd. and Ors.

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Whether issue of res judicata can be decided as preliminary issue?

 Order 14 Rule 1 is in regard to the framing of issues. There are two kinds of issue. First, issue of fact; and second, issue of law. Under sub-rule (2) of Order 14, Rule 2, C.P.C., there is third kind of issue, which is mixed issue of law and of fact. In the present case, plea of res judicata has been taken by the defendant whereupon issue was framed by the trial court and it has been decided in favour of the plaintiffs. An issue of law can be decided as a preliminary issue whereas the mixed issue of fact and law cannot be decided as a preliminary issue. It is well settled that an issue of res judicata is a mixed issue of law and fact and it has to be decided on proper pleadings and evidence of parties. Thus, this Court is of the view that the trial court has committed illegality in deciding the issue of res judicata as the preliminary issue. However, suit need not to be dismissed at this stage under the provisions contained in Order 7 Rule 11 C.P.C and is apparently not barred by any law.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 964 of 2015

Decided On: 05.04.2019

Cooper Pharma  Vs.  Shamshad Ahmad

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Whether subsequent suit can be stayed if application for setting aside exparte decree is pending?

 The object behind enacting Section" 10 of CPC would be that in regard to same property and issues involved between the same party, conflicting findings may not come by the courts. In the present case, the suit filed by the respondent herein has already been decided by ex parte judgment and decree dated 7.4.2003 and only an application under Order 9 Rule 13 is pending adjudication. The question which arises for consideration by this Court is whether mere pendency of an application under Order 9 Rule 13 CPC would tantamount to pendency of suit in the court. In view of this Court, since Original suit no. 487 of 2002 filed by the defendant has been decided by ex-parte judgment and decree dated 7.4.2003, therefore, an application filed by the plaintiffs for setting aside the ex-parte decree cannot be treated as pendency of suit. Thus, the learned revisional court has committed. illegality in allowing the revision partly and in deciding issue no. 3 in favour of defendant and staying the proceedings of original suit no. 49 till the decision in misc. application no. 67 of 2003 under Order 9 Rule 13 CPC.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 964 of 2015

Decided On: 05.04.2019

Cooper Pharma  Vs.  Shamshad Ahmad

Hon'ble Judges/Coram:

Lok Pal Singh, J.

Citation: AIR 2019 Uttar 111

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Whether appellate court can decide issue of court fees and valuation as preliminary issue?

U/S. 12 of the Court Fees Act, the Court is requires determination of the amount of fee chargeable on the plaint or memorandum of appeal by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit. Under sub-section (ii), whenever any such suit comes before a Court of appeal, reference or revision and the Court finds that the issue of court-fees has wrongly been decided, which is causing loss to the revenue, it shall require the party to pay additional fee as would have been payable had the question been rightly decided. Therefore, the first appellate Court u/S. 12 is competent to adjudicate the issue in respect of amount of fee payable in appeal as well as in the suit. U/S. 107(1) of the C.P.C., the appellate Court is required to decide the appeal on merit, but the C.P.C. is a procedural law and the Court Fees Act is a substantive law in respect of payment of Court-fees, therefore, substantive law will prevail over the procedural law, hence u/S. 12 of the Court-fees Act, the first appellate Court has rightly decided the issue in respect of Court-fees.

16. The issue of Court-fees is always liable to be decided as a preliminary issue because the Court-fees is payable at the time of filing of the suit and appeal. In the Court-fees Act, there is a provision of refund of Court-fees paid on the suit as well as on memo of appeal, but there is no provision for payment of Court-fees after adjudication of the suit and the appeal. The Court-fees can be exempted to an indigent person or u/S. 35 of the Court-fees Act for some special categories of plaintiffs, but in all circumstances, the fee is payable in advance and thereafter, the issue of valuation of the suit and payment of Court-fees should be decided as preliminary issue.

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

M.P. No. 5417 of 2018

Decided On: 25.02.2019

 Badrilal  Vs. Akash and Ors.

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Supreme Court: Issue of limitation can not be decided as preliminary issue under S 9A of CPC

Given the discussion above, we are of the considered opinion

that the jurisdiction to entertain has different connotation from the

jurisdictional error committed in exercise thereof. There is a difference

between the existence of jurisdiction and the exercise of jurisdiction.

The expression jurisdiction has been used in CPC at several places in

different contexts and takes colour from the context in which it has

been used. The existence of jurisdiction is reflected by the fact of

amenability of the judgment to attack in the collateral proceedings. If

the court has an inherent lack of jurisdiction, its decision is open to

attack as a nullity. While deciding the issues of the bar created by the

law of limitation, res judicata, the Court must have jurisdiction to

decide these issues. Under the provisions of section 9A and Order XIV

Rule 2, it is open to decide preliminary issues if it is purely a question

of law not a mixed question of law and fact by recording evidence. The

decision in Foreshore Cooperative Housing Society Limited (supra)

cannot be said to be laying down the law correctly. We have

considered the decisions referred to therein, they are in different

contexts. The decision of the Full Bench of the High Court of Bombay

in Meher Singh (supra) holding that under section 9A the issue to try a

suit/jurisdiction can be decided by recording evidence if required and

by proper adjudication, is overruled. We hold that the decision in

Kamlakar Shantaram (supra) has been correctly decided and cannot

be said to be per incuriam, as held in Foreshore Cooperative Housing

Society Limited (supra).

77.(b) Section 2 of Maharashtra Second Amendment Act, 2018 which

provides that where consideration of preliminary issue framed under

section 9A is pending on the date of commencement of the CPC, the

said issue shall be decided and disposed of by the court under section

9A as if the provision under section 9A has not been deleted, does not

change the legal scenario as to what can be decided as a preliminary

issue under section 9A, CPC, as applicable in Maharashtra. The

saving created by the provision of section 2 where consideration of

preliminary issue framed under section 9A is pending on the date of

commencement of the Code of Civil Procedure (Maharashtra

Amendment) Act, 2018, can be decided only if it comes within the

parameters as found by us on the interpretation of section 9A. We

reiterate that no issue can be decided only under the guise of the

provision that it has been framed under section 9A and was pending

consideration on the date of commencement of the (Maharashtra

Amendment) Act, 2018. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ INHERENT JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NOS.3198231983

OF 2013

NUSLI NEVILLE WADIA  Vs  IVORY PROPERTIES 

ARUN MISHRA, J.

Dated:October 4, 2019.
Citation: 2020(2) MHLJ 469

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Leading judgment on S 9A of CPC(Maharashtra Amendment)

 In my view,

(i) the four classes of litigants culled out in the referral order are the possible outcome of the Second Amendment Act.

(ii) The second Amendment Act substitutes only clause (1) of Section 3  of the First Amendment Act w.e.f. 27th June, 2018.

(iii) The Second Amendment Act has no bearing over clauses- (2), (3) and (4) of the First Amendment Act, except matters remanded in terms of proviso to clause (3) of Section 3 of the First Amendment Act.

(iv) The provisions contained in clauses (2), (3) and (4) of the First Amendment Act shall continue to apply to the matters falling under these Clauses, except those covered under proviso to Clause (3).

BOMBAY HIGH COURT

Shabbir Ibrahim Mestry And Anr vs Anjum Rahim Mestry And Ors on 7 August, 2019

Bench: S. K. Shinde

 WRIT PETITION NO. 12418 OF 2015

Citation: 2020(2) MHLJ 374

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Whether court can direct parties to include more properties in suit for partition?

 Party to the suit cannot be forced or compelled to include the properties which are found in Exhibits before the Court as is done in the present case. The Trial Court has misdirected itself while passing the impugned judgment in the present suit. The preliminary issue with regard to whether the suit is bad for non-joinder of necessary parties and whether the suit of the plaintiffs is for partial partition as such the suit is not maintainable, are the issues which are to be answered along with other issues in the suit. The Trial Court fell into error in not answering all the issues. The Trial Court has committed an error in directing the parties to include the properties mentioned in Ex. D4 to Ex. D7. It is for the parties, either the plaintiffs or defendants to include the properties to the suit schedule for partition. 

IN THE HIGH COURT OF KARNATAKA

Writ Petition No. 44513 of 2014 (GM-CPC)

Decided On: 06.08.2018

C.S. Sundaresha  Vs. C.S. Ananthalakshmi and Ors.

Hon'ble Judges/Coram:

Shankar Ganapathi Pandit, J.

Citation: AIR 2019 Karnat 5

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When issue of limitation should not be decided as preliminary issue?

The issue regarding bar of limitation can be disposed of as a preliminary issue under Order XIV, Rule 2(2) of the Civil Procedure Code only in cases where it can be disposed of as an issue of law and not otherwise. In cases where such an issue requires recording of evidence, it has to be disposed of along with the other issues except when the Court, in its opinion, thinks fit to postpone the settlement of the other issues till the disposal of the issue regarding jurisdiction or limitation. Undoubtedly, the Court in that regard has to exercise its discretion judiciously and considering the facts of each case.

Citation; 2003(3)BomCR814, 2003(2)MhLj219;2003 (1) ALL M R 674

IN THE HIGH COURT OF BOMBAY

Civil Revision Appln. No. 752 of 2002

Decided On: 05.09.2002

Appellants: Shraddha Associates and Anr.
Vs.
Respondent: St. Patrick's Town Co-operative Housing Society Ltd. and Ors.

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Deletion of section 9A of CPC in its application to State of Maharashtra

First Amendment https://drive.google.com/file/d/1pX4sWaPiY9wbs2OL4Q4-UEbu8BSSXB1-/view?usp=sharing
Second Amendment  https://drive.google.com/file/d/11ciAXlGYFxgzx4o0JlSmHZ_7u9f9JAAq/view?usp=sharing

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Whether court can grant injunction even if there is no application for injunction?

Learned counsel for the petitioner states that the petitioner
has no objection to the impugned order, by which the preliminary
issue   has   been   framed.   However,   the   petitioner   is   aggrieved   by
denial of interim relief, which, the petitioner is entitled to press in
terms of Section 9A(2) of the CPC.
3] In this case, the impugned order does not reject any interim
relief. All that, learned Trial Judge has observed that there was no
application   for   interim   relief   and   in   the   absence   of   any   such
application, there is no question of consideration of any prayer for

interim relief. Learned counsel for the petitioner points out that in
the reply filed to the motion for framing of preliminary issue, the
petitioner had applied for interim relief. 
4] From the perusal of the reply, there does not appear to be any
such prayer. In any case, it is only appropriate that the petitioner, if,
is   seriously   interested   in   any   interim   relief   should   take   out   an
appropriate   application,   which   can   always   be   considered   in
accordance with law by learned Trial Court. Accordingly, there is
absolutely no case is made out to interfere with the impugned order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE  JURISDICTION
 WRIT PETITION NO. 8396 OF 2017
Shadaab S. Patel  vs. Oscar Builders Pvt. Ltd. and anr.
   
CORAM :  M. S. SONAK, J.
DATE     :    18 SEPTEMBER 2017.

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When court should decide issue of undervaluation of suit as preliminary issue?

 In the case of The Church of Christ Charitable Trust and Educational Charitable Society v. M/s. Ponniamman Educational Trust, as reported in MANU/SC/0515/2012 : AIR 2012 SC 3912, after referring to the relevant provision, it has been held that --

"In order to consider an application under Order VII Rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit."

5. But in the case of Meenakshisundaram Chettiar v. Venkatachalam Chettiar, as reported in MANU/SC/0016/1979 : 1980 (1) SCC 616, it has been held that --

"The plaintiff is entitled to give a tentative valuation if in spite of his genuine efforts, he is unable to make out an exact valuation, but plaint is liable to be rejected in case of deliberate undervaluation."

6. "Similarly, in the case of Sujir Keshav Nayak v. Sujir Ganesh Nayak, as reported in MANU/SC/0284/1992 : 1992 (1) SCC 731, it has been held that --

"In suit filed before Court of limited pecuniary jurisdiction, defendant has right to raise objection as to undervaluation of the suit which has to be decided as preliminary issue by the Court. It has also been held that if Court, on being prima-facie satisfied that valuation of suit was arbitrary, can direct the suit to be properly valued."

It has been further held that --

"In suits for accounting or for dissolution of partnership and accounting filed in Courts of limited pecuniary jurisdiction the plaintiff must take every care to disclose valuation which is not arbitrary, as the plaint is liable to be rejected on objection of the defendants, but in suits of such nature, filed before Courts of unlimited jurisdiction, the valuation disclosed by the plaintiff can be accepted as correct. This however, does not mean that Court's power to examine the correctness of valuation is taken away. If on perusal of plaint, the Court is prima facie satisfied that the plaintiff has not been fair and valued the suit or relief arbitrarily it is not precluded from directing the plaintiff to value it properly and pay Court-fee on it. Thus, summarizing the law, it has been held as under:

(1) Where the question of Court-fee is linked with jurisdiction, a defendant has a right to raise objection and the Court should decide it as a preliminary issue.

(2) But in those cases where the suit is filed in Court of unlimited jurisdiction, the valuation disclosed by the plaintiff or payment of amount of Court-fee on relief claimed in plaint or memorandum of appeal should be taken as correct.

(3) This does not preclude the Court even in suits filed in Courts of unlimited jurisdiction from examining if the valuation, on averments in plaint, is arbitrary."

7. In the present case, the trial Court with a limited pecuniary jurisdiction, cannot be said to have erred in directing the plaintiff to value the suit as per the guidelines inasmuch as it is very much within the jurisdiction of a Civil Judge even if material would not have been brought to the notice of the Civil Judge, to direct the plaintiff to value the relief as per the market guidelines.

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

W.P. No. 7303 of 2016

Decided On: 26.10.2016

 Manoj Jain and Ors.

Vs.

Pramod Jain and Ors.

Hon'ble Judges/Coram:

Vivek Agarwal, J.

Citation: AIR 2017 Madhya pradesh 39

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Whether high court should decide appeal only on preliminary issue of limitation?

 The second question that requires consideration is
whether the High Court was right in merely deciding the issue
of limitation in a first appeal filed under Section 96 of the Code
of Civil Procedure without going into the merits of the case.
Quite recently, in Vinod Kumar v. Gangadhar (2015) 1 SCC 391
this Court had
occasion to consider the issue whether, under Section 96 of the
Code of Civil Procedure, the first appellate court ought to decide
all the issues before it or not. Reference was made to a very
large number of decisions rendered by this Court and it was
concluded, particularly relying upon Madhukar v. Sangram 
(2001) 4 SCC 756
decided by a Bench of three learned judges of this Court that
sitting as a court of first appeal it is the duty of the High Court
to deal with all the issues and evidence led by the parties before
recording its findings.
25. In so far as the present appeal is concerned, the High
Court only considered the issue of limitation and did not
consider the other issues in the appeal. This was
impermissible. The result is that since we do not agree with the
view taken by the High Court on the issue of limitation, there is
no option but to set aside the view expressed by the High Court
and following the decisions of this Court, remand the matter to
the High Court to decide the remaining issues in the first
appeal filed under Section 96 of the Code of Civil Procedure.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6687 OF 2016
Madina Begum & Anr.
 v
Shiv Murti Prasad Pandey & Ors. 
Dated:August 1, 2016

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What is distinction between adjudication under S 9A of CPC and O 7 R11 of CPC?

 Hence, as indicated hereinabove, the sum and substance of
the case of the Plaintiff is that the Defendants i.e. Defendant Nos.1 and 2
have jointly conspired to grab the properties of the Plaintiff at throw away
prices to the loss of the Plaintiff. As indicated above, though the averments
revolving around the conduct of the Defendant No.1 are appearing in the
plaint   significantly   in   the   adjudication   of   the   application   filed   under

Section 9A, no evidence was led by the Plaintiff. The Trial Court has
proceeded on a totally erroneous basis by accepting the averments made
in the plaint when the same have not been supported by any evidence led
by the Plaintiff. The averments which revolve around the conduct of the
Defendant No.1 could not have been accepted by the Trial Court without
the same being supported by any evidence of the Plaintiff. In so far as
Section 9A is concerned, it is well settled that the adjudication of the
preliminary issue framed under Section 9A is in the nature of a mini trial
as the decision rendered on the jurisdictional issue stands concluded and
is no more open for adjudication in the suit. The Trial Court did not
proceed on the basis that in the instant case the application was under
Section 9A but erroneously proceeded on the basis as if the application
was under Order VII Rule (11)(d) by accepting the averments in the plaint
and held that since it is the case of the Plaintiff that there is conspiracy, the
suit in  question  would  fit  within   the  exception  carved out  in  Mardia
Chemicals Limited's case (supra) and would therefore be maintainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.386 OF 2015
ICICI Bank Limited 
V
 Anil Printers Limited 
CORAM  :  R.M. SAVANT, J.
DATE      :  8th OCTOBER, 2015
Citation:2016(5) ALLMR695

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When court should not decide issue of limitation as preliminary issue?

 Be it stated, the aforesaid pronouncement was made
before the amendment of the Code of Civil Procedure in 1976.
18. In Ramesh D. Desai and others v. Bipin Vadilal
Mehta and others3
, while dealing with the issue of limitation,
the Court opined that a plea of limitation cannot be decided as
an abstract principle of law divorced from facts as in every
case the starting point of limitation has to be ascertained
which is entirely a question of fact. The Court further
proceeded to state that a plea of limitation is a mixed question
of fact and law. On a plain consideration of the language
employed in sub-rule (2) of Order 14 it can be stated with
3 (2006) 5 SCC 638
certitude that when an issue requires an inquiry into facts it
cannot be tried as a preliminary issue. In the said judgment
the Court opined as follows: -
“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down
that where issues both of law and of fact arise in the
same suit, and the court is of the opinion that the
case or any part thereof may be disposed of on an
issue of law only, it may try that issue first if that
issue relates to (a) the jurisdiction of the court, or (b)
a bar to the suit created by any law for the time
being in force. The provisions of this Rule came up
for consideration before this Court in Major S.S.
Khanna v. Brig. F.J. Dillon and it was held as under:
(SCR p. 421)
“Under Order 14 Rule 2, Code of Civil Procedure
where issues both of law and of fact arise in the
same suit, and the court is of opinion that the
case or any part thereof may be disposed of on
the issues of law only, it shall try those issues
first, and for that purpose may, if it thinks fit,
postpone the settlement of the issues of fact
until after the issues of law have been
determined. The jurisdiction to try issues of law
apart from the issues of fact may be exercised
only where in the opinion of the court the whole
suit may be disposed of on the issues of law
alone, but the Code confers no jurisdiction upon
the court to try a suit on mixed issues of law
and fact as preliminary issues. Normally all the
issues in a suit should be tried by the court; not
to do so, especially when the decision on issues
even of law depend upon the decision of issues
of fact, would result in a lopsided trial of the
suit.”
Though there has been a slight amendment in the
language of Order 14 Rule 2 CPC by the amending
Act, 1976 but the principle enunciated in the
abovequoted decision still holds good and there can
be no departure from the principle that the Code
confers no jurisdiction upon the court to try a suit on
mixed issues of law and fact as a preliminary issue
and where the decision on issue of law depends
upon decision of fact, it cannot be tried as a
preliminary issue.”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 5954 2014
(Arising out of S.L.P. (Civil) No. 33200 of 2014)

Satti Paradesi Samadhi & Philliar Temple  V M. Sankuntala (D) Tr. Lrs.

Citation;(2015) 5 SCC674
Dipak Misra

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Supreme court;As per S 9A of CPC(Maharashtra amendment) court can decide issue of limitation as preliminary issue

With great respect, we are of the view that the decision
rendered by the Division Bench in the case of Kamalakar
Eknath Salunkhe vs. Baburav Vishnu Javalkar & Ors. is
contrary to the law settled by the Constitution Bench and
three Judges Bench of this Court, followed by other Division
Bench in Pandurang Dhondi Chougule vs. Maruti Hari
Jadhav, AIR 1966 SC 153, (Five Judges Bench) in Manick
Chandra Nandy vs. Debdas Nandy, (1986) 1 SCC 512,
National Thermal Power Corpn. Ltd. vs. Siemens
Atkeingesellschaft, (2007) 4 SCC 451, Official Trustee
vs. Sachindra Nath Chatterjee AIR 1969 SC 823, ITW

Signode India Ltd. vs. CCE, (2004) 3 SCC 48 and
Kamlesh Babu vs. Lajpat Rai Sharma, (2008) 12 SCC
577. The Constitution Bench decision and other decisions
given by larger Bench are binding on us.
It appears that
those decisions have not been brought to the notice of the
Division Bench taking a contrary view.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7732 of 2011

Foreshore Co-operative Housing Society Limited Vs  Praveen D.Desai


M. Y. EQBAL, J.
Citation;AIR 2015 SC2006

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