Learned counsel appearing for appellants
contends that despite such preliminary objection as to
jurisdiction of the the trial Court, it did not bother to frame
preliminary issue as to its jurisdiction to entertain and try
the suit but proceeded further to hear the suit. In other
words, therefore, the trial Court in the present case failed in
its duty to consider Sections 9 read with Order XIV of the
Code of Civil Procedure. As a general rule, the Court is
required to pronounce the judgment upon all issues but
when the case may be disposed of upon the preliminary
issue raised as to jurisdiction of the Court or any legal bar,
the trial Court can postpone framing other issues and decide
the preliminary issue first under Order XIV Rule 2(2)(a) of
the Code of Civil Procedure to hear and dispose of the
preliminary objection as to the issue of jurisdiction before
proceeding further and taking steps towards hearing of the
suit. The trial Court Judges can save lot of judicial time and
unnecessary expenses to the parties in long drawn out
litigation, if the suit itself can be disposed of finally at early
stage of the litigation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Second Appeal No.494 of 2013
Smt. Chandabai wd/o Devidas Mahule,
:: versus ::
Mehmood Khan Abdul Hamid Khan
CORAM : A. P. BHANGALE, J.
DATE : APRIL 04, 2014.
Citation;2014(3)MHLJ760 Bom
Read original judgment here; click here
1. This second appeal is directed against judgment
and order dated 10.9.2013, passed by the learned Ad-hoc
District Judge-2, Nagpur, in Regular Civil Appeal No.43 of
2010, whereby the appeal was dismissed, which arose from
judgment and order dated 21.11.2009, passed by the
learned Additional Judge, Small Causes Court, Nagpur, in
Regular Civil Suit No.44 of 2004, whereby the suit was partly
decreed with costs.
2. This second appeal was admitted on 19.12.2013,
by my learned brother Judge Shri S.B.Shukre, on the
following substantial questions of law, thus:
(1) Whether in the facts and
circumstances of the case Small Causes
Courts could be said to have jurisdiction
to try the suit, when the suit is based on
relationship of partnership and seeks a
declaratory relief, in view of the bar
created by Item 19 and Item 29 of 2nd
Schedule of the Provincial Small Causes
Court Act, 1887?
(2) Whether in the facts and
circumstances of the case, oral evidence
inconsistent with and contrary to the
terms of partnership Exh.62 and Exh.92,
could have been considered?
(3) Whether in the facts and
circumstances of the case, it can be said
that fixed payment of Rs.1,500/- provided
in the partnership deed was permissible
for a valid partnership, specially when the
premises of the partnership was to be
used as shop premises?
Thus, at the time of admission, the question
regarding jurisdiction of the Small Causes Court to entertain
and try the suit was to be considered as the suit was based
upon the averments as to relationship arising from
partnership and declaratory relief.
3. According to learned Counsel appearing for
appellants in view of the provisions of The Provincial Small
Cause Courts Act, 1887 (for short, “the said Act”),
considering Section 15 of the said Act relating to cognizance
of suits by the Small Causes Court, though the objection to
the jurisdiction of the Small Causes Court was taken in the
trial Court that the Small Causes Court had no jurisdiction at
all to try and decide the suit, the said Court proceeded
further to entertain and decide the suit without considering
the preliminary objection taken as to jurisdiction of the
Small Causes Court.
According to the submission advanced on behalf of
appellants the learned trial Judge ought to have considered
the provisions of Section 15 of the said Act, in juxtaposition
with Item Nos.(11), (19) and (29) of the Second Schedule,
which deal with the suits excepted from the cognizance of
the Small Causes Court. Said Item Nos.(11), (19) and (29)
read, thus :
“Item No.(11):- a suit for the
determination or enforcement of any
other right to or interest in immovable
property;
Item No.(12) :- a suit for
possession ...........
...........
...........
...........
Item No.(19):- a suit for a declaratory
decree, not being a suit instituted under
section 283 or section 332 of the Code of
Civil Procedure, 1882 (14 of 1882);
Item No.(20):- a suit instituted ..........
..........
..........
..........
Item No.(29):- a suit --
(a) for a dissolution of partnership or
for the winding up of the business of a
partnership after its dissolution;
(b) for an account of partnershiptransaction;
or
(c) for a balance of partnershipaccount,
unless the balance has been
struck by the parties or their agents.
..........
..........
..........”
Thus, Item No.11 provides an exception of a suit
for the determination or enforcement of any other right to or
interest in immovable property while Item No.19 relates to a
suit for a declaratory decree, not being a suit instituted
under Sections 283 or 332 of the Code of Civil Procedure;
and Item No.29 relates to a suit for a dissolution of
partnership or for the winding up of the business account
etc. in relation to the partnership firm.
4. In the present case, the partnership deed was
subject of the suit before the trial Court. Therefore,
according to learned Counsel appearing for appellants an
objection was taken in the trial Court itself as preliminary
objection requiring the trial Court to decide the objection as
to the jurisdiction of the Court to entertain and try the suit
as a preliminary issue. According to the learned Counsel,
the Small Causes Court had no jurisdiction to entertain and
try the suit.
5. On behalf of the respondent, it is contended, that
since both the Courts below exercised jurisdiction to
entertain and try the suit and proceeded to decide the suit
and the appeal and while Courts below recorded concurrent
findings of facts, in relation to the issues framed in the suit
and the appeal, in view of the provisions of Section 34 of
The Maharashtra Rent Control Act, 1999, after first appellate
Court decided the appeal, no further appeal can be
entertained. The identical provision is pointed out from The
Provincial Small Cause Courts Act, 1887, which is in relation
to the jurisdiction of the appellate Court; and in Sub section
(3) of Section 26-A further appeal is not entertainable
against any decision in appeal before the Small Causes
Court.
6. In the present case, it appears that the debatable
question was agitated at the time of admission as well as
today when the second appeal was listed for hearing. In my
opinion when in the trial Court, the defendants appeared
and filed written statement raising a preliminary issue as to
jurisdiction of the Court to entertain and try the suit, the
preliminary issue could have been framed by the trial Court
and decided. It would not be out of place to refer Section 9-
A of the Code of Civil Procedure, State Amendment
(Maharashtra). It operates when any application for interim
relief is under consideration by the Court. It reads, thus:
“9-A. Where at the hearing of application
relating to interim relief in a suit, objection
to jurisdiction is taken, such issue to be
decided by the Court as a preliminary
issue. --
(1) Notwithstanding anything contained in
this Code or any other law for the time
being in force, if, at the hearing of any
application for granting or setting aside an
order granting any interim relief, whether
by way of stay, injunction, appointment of
a receiver or otherwise, made in any suit,
an objection to the jurisdiction of the Court
to entertain such a suit is taken by any of
the parties to the suit, the Court shall
proceed to determine at the hearing of
such application the issue as to the
jurisdiction as a preliminary issue before
granting or setting aside the order
granting the interim relief. Any such
application shall be heard and disposed of
by the Court as expeditiously as possible
and shall not in any case be adjourned to
the hearing of the suit.
(2) Notwithstanding anything contained in
sub-section (1), at the hearing of any such
application, the Court may grant such
interim relief as it may consider necessary,
pending determination by it of the
preliminary issue as to the jurisdiction.” -
Maharashtra Act (65 of 1977) (w.e.f.
19.12.1977).
Even if there is no any application for interim relief
as referred above; the trial Judge may, in view of Order XIV
Rule 2(2)(a) of the Code of Civil Procedure, take an early
opportunity to dispose of the suit by hearing and deciding
preliminary issue as to jurisdiction of the Court. The trial
Judge is expected to dispose of the suit at his earliest
opportunity as may be possible to save expenses to the
parties and precious judicial time. Therefore, it was for the
trial Court to earnestly ponder over the objection taken by
the defendants in their written statement as to jurisdiction
of the Court to entertain the suit. The trial Judge is
expected at his earliest to consider whether the suit itself
can be disposed of finally by recording finding upon a
preliminary issue as to jurisdiction of the Court before the
settlement of other issues in the suit. Any such objection as
to the jurisdiction of the Court to try the suit ought to be
disposed of by the trial Court at its earliest opportunity or as
expeditiously as possible.
7. The defendants had, in the written statement
filed on 3.3.2004, raised preliminary objection in following
terms, thus :
“That, the parties have no relationship of
landlord and tenant therefore this
honourable Court has no jurisdiction to
adjudicate the present suit. That from the
contents of plaint itself it is clear that
relations of two parties were based on a
deed styled as “Bhagidari Patra”,
apparently it is not a registered deed of
partnership and therefore the plaintiff
cannot claim anything on the basis of the
same. That only remedy available to the
plaintiff is to file a civil suit for settlement
of account on the basis of unregistered
deed of partnership. That as per Second
Schedule entry No.29 of Act, such suit are
excepted from the cognizance of Small
Cause Court without prejudice to as stated
above,........”
8. Learned counsel appearing for appellants
contends that despite such preliminary objection as to
jurisdiction of the the trial Court, it did not bother to frame
preliminary issue as to its jurisdiction to entertain and try
the suit but proceeded further to hear the suit. In other
words, therefore, the trial Court in the present case failed in
its duty to consider Sections 9 read with Order XIV of the
Code of Civil Procedure. As a general rule, the Court is
required to pronounce the judgment upon all issues but
when the case may be disposed of upon the preliminary
issue raised as to jurisdiction of the Court or any legal bar,
the trial Court can postpone framing other issues and decide
the preliminary issue first under Order XIV Rule 2(2)(a) of
the Code of Civil Procedure to hear and dispose of the
preliminary objection as to the issue of jurisdiction before
proceeding further and taking steps towards hearing of the
suit. The trial Court Judges can save lot of judicial time and
unnecessary expenses to the parties in long drawn out
litigation, if the suit itself can be disposed of finally at early
stage of the litigation.
9. The legal provision, therefore, as discussed above,
cannot be overlooked by the trial Court and also by the first
appellate Court, which could have rectified the error
committed by the learned trial Judge by remanding the
matter and calling upon the trial Court to frame preliminary
issue and to decide the preliminary issue first before dealing
with and decide the other issues in the suit.
10. Considering such prima facie error of law, the
argument that, the second appeal is not maintainable,
would go into oblivion particularly when after appellants
were heard at the stage of admission and the argument was
considered in order to formulate the substantial questions of
law by this Court. The jurisdiction of the second appellate
Court to entertain the second appeal is neither natural nor
inherent as it is a substantive statutory right regulated by
Section 100 and following Sections of the Code of Civil
Procedure. If the question of law is of general public
importance which directly or substantively affects the rights
of the parties, the second appellate Court can surely in the
larger interest of justice intervene, if the conclusions by the
trial Court and the appellate Court below, are contrary to
law. Therefore, the jurisdiction of the High Court, to
entertain the second appeal, extends to hear the appeal on
any substantial question of law, which is involved, even if
assuming that it was not formulated at earlier stage due to
the mistake or inadvertence. The second appellate Court
can consider any debatable question of law which is not
previously settled by any binding judicial precedent.
Normally, the second appellate Court would not interfere
with the concurrent findings of facts recorded by the Courts
below but in exceptional cases wherein it appears that the
Courts below ignored material evidence or acted without
evidence or raised wrong interference drawn from the
proved facts by applying law erroneously or where the
Courts have wrongly casted the burden of proof, the burden
of proof can be interfered. The perversity or illegality, if
any, can be rectified in the larger interest of justice.
11. Thus, when any perversity or illegality is brought
to the notice of the second appellate Court, regarding any
findings recorded by the Courts below, it is the duty of this
Court to intervene and rectify the legal error committed by
the Courts below, if any, by passing an appropriate order in
exceptional circumstances. In other words, therefore,
merely because of the concurrent findings of facts recorded
by both the Courts below, this Court is not powerless to
consider the debatable and significant substantial questions
of law so as to formulate and decide them in the larger
interest of justice, if any. The trial Court if it proceeds
further to entertain and try the suit without having
jurisdiction to entertain and try the suit according to the
law. Then, any such judgment, rendered by a trial Court
without having jurisdiction, would be considered as nullity.
In such exceptional cases where it appears so, the
preliminary question as to jurisdiction of the Court has to be
settled according to the law particularly when such
important question of law raised in relation to general public
importance i.e. relating to the very jurisdiction of the trial
Court to entertain and try the suit. The contention objecting
jurisdiction of the trial Court taken at early stage of the suit
cannot be ignored.
12. I feel it was the duty of the learned trial Judge to
earnestly consider the preliminary objection raised by the
defendants as to jurisdiction of the trial Court to entertain
and try the suit and to decide the same before taking any
further steps in the suit as such issue as to the jurisdiction
can go to the root of the institution of the suit itself. That
being so, the questions of law formulated as in paragraph
No.2 above become redundant in this second appeal.
13. For the above reasons, the impugned judgments
and orders dated 10.9.2013, passed by the learned Ad-hoc
District Judge-2 and Additional Sessions Judge, Nagpur, in
Regular Civil Appeal No.43 of 2010 and 21.11.2009, passed
by the learned Additional Judge, Small Causes Court,
Nagpur, in Regular Civil Suit No.44 of 2004, are hereby
quashed and set aside.
The parties are directed to appear before the trial
Court on 21.4.2014 and the trial Court is directed to frame
preliminary issue as to jurisdiction of the Court to entertain
and try the suit and thereafter to decide it in accordance
with law.
It is clarified, that in case, the trial Court holds,
that it has jurisdiction to entertain and try the suit, the trial
Court can consider the evidence, as to the rest of the issues
framed by it, on its own merits in accordance with law. No
order as to costs.
Print Page
contends that despite such preliminary objection as to
jurisdiction of the the trial Court, it did not bother to frame
preliminary issue as to its jurisdiction to entertain and try
the suit but proceeded further to hear the suit. In other
words, therefore, the trial Court in the present case failed in
its duty to consider Sections 9 read with Order XIV of the
Code of Civil Procedure. As a general rule, the Court is
required to pronounce the judgment upon all issues but
when the case may be disposed of upon the preliminary
issue raised as to jurisdiction of the Court or any legal bar,
the trial Court can postpone framing other issues and decide
the preliminary issue first under Order XIV Rule 2(2)(a) of
the Code of Civil Procedure to hear and dispose of the
preliminary objection as to the issue of jurisdiction before
proceeding further and taking steps towards hearing of the
suit. The trial Court Judges can save lot of judicial time and
unnecessary expenses to the parties in long drawn out
litigation, if the suit itself can be disposed of finally at early
stage of the litigation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Second Appeal No.494 of 2013
Smt. Chandabai wd/o Devidas Mahule,
:: versus ::
Mehmood Khan Abdul Hamid Khan
CORAM : A. P. BHANGALE, J.
DATE : APRIL 04, 2014.
Citation;2014(3)MHLJ760 Bom
Read original judgment here; click here
1. This second appeal is directed against judgment
and order dated 10.9.2013, passed by the learned Ad-hoc
District Judge-2, Nagpur, in Regular Civil Appeal No.43 of
2010, whereby the appeal was dismissed, which arose from
judgment and order dated 21.11.2009, passed by the
learned Additional Judge, Small Causes Court, Nagpur, in
Regular Civil Suit No.44 of 2004, whereby the suit was partly
decreed with costs.
2. This second appeal was admitted on 19.12.2013,
by my learned brother Judge Shri S.B.Shukre, on the
following substantial questions of law, thus:
(1) Whether in the facts and
circumstances of the case Small Causes
Courts could be said to have jurisdiction
to try the suit, when the suit is based on
relationship of partnership and seeks a
declaratory relief, in view of the bar
created by Item 19 and Item 29 of 2nd
Schedule of the Provincial Small Causes
Court Act, 1887?
(2) Whether in the facts and
circumstances of the case, oral evidence
inconsistent with and contrary to the
terms of partnership Exh.62 and Exh.92,
could have been considered?
(3) Whether in the facts and
circumstances of the case, it can be said
that fixed payment of Rs.1,500/- provided
in the partnership deed was permissible
for a valid partnership, specially when the
premises of the partnership was to be
used as shop premises?
Thus, at the time of admission, the question
regarding jurisdiction of the Small Causes Court to entertain
and try the suit was to be considered as the suit was based
upon the averments as to relationship arising from
partnership and declaratory relief.
3. According to learned Counsel appearing for
appellants in view of the provisions of The Provincial Small
Cause Courts Act, 1887 (for short, “the said Act”),
considering Section 15 of the said Act relating to cognizance
of suits by the Small Causes Court, though the objection to
the jurisdiction of the Small Causes Court was taken in the
trial Court that the Small Causes Court had no jurisdiction at
all to try and decide the suit, the said Court proceeded
further to entertain and decide the suit without considering
the preliminary objection taken as to jurisdiction of the
Small Causes Court.
According to the submission advanced on behalf of
appellants the learned trial Judge ought to have considered
the provisions of Section 15 of the said Act, in juxtaposition
with Item Nos.(11), (19) and (29) of the Second Schedule,
which deal with the suits excepted from the cognizance of
the Small Causes Court. Said Item Nos.(11), (19) and (29)
read, thus :
“Item No.(11):- a suit for the
determination or enforcement of any
other right to or interest in immovable
property;
Item No.(12) :- a suit for
possession ...........
...........
...........
...........
Item No.(19):- a suit for a declaratory
decree, not being a suit instituted under
section 283 or section 332 of the Code of
Civil Procedure, 1882 (14 of 1882);
Item No.(20):- a suit instituted ..........
..........
..........
..........
Item No.(29):- a suit --
(a) for a dissolution of partnership or
for the winding up of the business of a
partnership after its dissolution;
(b) for an account of partnershiptransaction;
or
(c) for a balance of partnershipaccount,
unless the balance has been
struck by the parties or their agents.
..........
..........
..........”
Thus, Item No.11 provides an exception of a suit
for the determination or enforcement of any other right to or
interest in immovable property while Item No.19 relates to a
suit for a declaratory decree, not being a suit instituted
under Sections 283 or 332 of the Code of Civil Procedure;
and Item No.29 relates to a suit for a dissolution of
partnership or for the winding up of the business account
etc. in relation to the partnership firm.
4. In the present case, the partnership deed was
subject of the suit before the trial Court. Therefore,
according to learned Counsel appearing for appellants an
objection was taken in the trial Court itself as preliminary
objection requiring the trial Court to decide the objection as
to the jurisdiction of the Court to entertain and try the suit
as a preliminary issue. According to the learned Counsel,
the Small Causes Court had no jurisdiction to entertain and
try the suit.
5. On behalf of the respondent, it is contended, that
since both the Courts below exercised jurisdiction to
entertain and try the suit and proceeded to decide the suit
and the appeal and while Courts below recorded concurrent
findings of facts, in relation to the issues framed in the suit
and the appeal, in view of the provisions of Section 34 of
The Maharashtra Rent Control Act, 1999, after first appellate
Court decided the appeal, no further appeal can be
entertained. The identical provision is pointed out from The
Provincial Small Cause Courts Act, 1887, which is in relation
to the jurisdiction of the appellate Court; and in Sub section
(3) of Section 26-A further appeal is not entertainable
against any decision in appeal before the Small Causes
Court.
6. In the present case, it appears that the debatable
question was agitated at the time of admission as well as
today when the second appeal was listed for hearing. In my
opinion when in the trial Court, the defendants appeared
and filed written statement raising a preliminary issue as to
jurisdiction of the Court to entertain and try the suit, the
preliminary issue could have been framed by the trial Court
and decided. It would not be out of place to refer Section 9-
A of the Code of Civil Procedure, State Amendment
(Maharashtra). It operates when any application for interim
relief is under consideration by the Court. It reads, thus:
“9-A. Where at the hearing of application
relating to interim relief in a suit, objection
to jurisdiction is taken, such issue to be
decided by the Court as a preliminary
issue. --
(1) Notwithstanding anything contained in
this Code or any other law for the time
being in force, if, at the hearing of any
application for granting or setting aside an
order granting any interim relief, whether
by way of stay, injunction, appointment of
a receiver or otherwise, made in any suit,
an objection to the jurisdiction of the Court
to entertain such a suit is taken by any of
the parties to the suit, the Court shall
proceed to determine at the hearing of
such application the issue as to the
jurisdiction as a preliminary issue before
granting or setting aside the order
granting the interim relief. Any such
application shall be heard and disposed of
by the Court as expeditiously as possible
and shall not in any case be adjourned to
the hearing of the suit.
(2) Notwithstanding anything contained in
sub-section (1), at the hearing of any such
application, the Court may grant such
interim relief as it may consider necessary,
pending determination by it of the
preliminary issue as to the jurisdiction.” -
Maharashtra Act (65 of 1977) (w.e.f.
19.12.1977).
Even if there is no any application for interim relief
as referred above; the trial Judge may, in view of Order XIV
Rule 2(2)(a) of the Code of Civil Procedure, take an early
opportunity to dispose of the suit by hearing and deciding
preliminary issue as to jurisdiction of the Court. The trial
Judge is expected to dispose of the suit at his earliest
opportunity as may be possible to save expenses to the
parties and precious judicial time. Therefore, it was for the
trial Court to earnestly ponder over the objection taken by
the defendants in their written statement as to jurisdiction
of the Court to entertain the suit. The trial Judge is
expected at his earliest to consider whether the suit itself
can be disposed of finally by recording finding upon a
preliminary issue as to jurisdiction of the Court before the
settlement of other issues in the suit. Any such objection as
to the jurisdiction of the Court to try the suit ought to be
disposed of by the trial Court at its earliest opportunity or as
expeditiously as possible.
7. The defendants had, in the written statement
filed on 3.3.2004, raised preliminary objection in following
terms, thus :
“That, the parties have no relationship of
landlord and tenant therefore this
honourable Court has no jurisdiction to
adjudicate the present suit. That from the
contents of plaint itself it is clear that
relations of two parties were based on a
deed styled as “Bhagidari Patra”,
apparently it is not a registered deed of
partnership and therefore the plaintiff
cannot claim anything on the basis of the
same. That only remedy available to the
plaintiff is to file a civil suit for settlement
of account on the basis of unregistered
deed of partnership. That as per Second
Schedule entry No.29 of Act, such suit are
excepted from the cognizance of Small
Cause Court without prejudice to as stated
above,........”
8. Learned counsel appearing for appellants
contends that despite such preliminary objection as to
jurisdiction of the the trial Court, it did not bother to frame
preliminary issue as to its jurisdiction to entertain and try
the suit but proceeded further to hear the suit. In other
words, therefore, the trial Court in the present case failed in
its duty to consider Sections 9 read with Order XIV of the
Code of Civil Procedure. As a general rule, the Court is
required to pronounce the judgment upon all issues but
when the case may be disposed of upon the preliminary
issue raised as to jurisdiction of the Court or any legal bar,
the trial Court can postpone framing other issues and decide
the preliminary issue first under Order XIV Rule 2(2)(a) of
the Code of Civil Procedure to hear and dispose of the
preliminary objection as to the issue of jurisdiction before
proceeding further and taking steps towards hearing of the
suit. The trial Court Judges can save lot of judicial time and
unnecessary expenses to the parties in long drawn out
litigation, if the suit itself can be disposed of finally at early
stage of the litigation.
9. The legal provision, therefore, as discussed above,
cannot be overlooked by the trial Court and also by the first
appellate Court, which could have rectified the error
committed by the learned trial Judge by remanding the
matter and calling upon the trial Court to frame preliminary
issue and to decide the preliminary issue first before dealing
with and decide the other issues in the suit.
10. Considering such prima facie error of law, the
argument that, the second appeal is not maintainable,
would go into oblivion particularly when after appellants
were heard at the stage of admission and the argument was
considered in order to formulate the substantial questions of
law by this Court. The jurisdiction of the second appellate
Court to entertain the second appeal is neither natural nor
inherent as it is a substantive statutory right regulated by
Section 100 and following Sections of the Code of Civil
Procedure. If the question of law is of general public
importance which directly or substantively affects the rights
of the parties, the second appellate Court can surely in the
larger interest of justice intervene, if the conclusions by the
trial Court and the appellate Court below, are contrary to
law. Therefore, the jurisdiction of the High Court, to
entertain the second appeal, extends to hear the appeal on
any substantial question of law, which is involved, even if
assuming that it was not formulated at earlier stage due to
the mistake or inadvertence. The second appellate Court
can consider any debatable question of law which is not
previously settled by any binding judicial precedent.
Normally, the second appellate Court would not interfere
with the concurrent findings of facts recorded by the Courts
below but in exceptional cases wherein it appears that the
Courts below ignored material evidence or acted without
evidence or raised wrong interference drawn from the
proved facts by applying law erroneously or where the
Courts have wrongly casted the burden of proof, the burden
of proof can be interfered. The perversity or illegality, if
any, can be rectified in the larger interest of justice.
11. Thus, when any perversity or illegality is brought
to the notice of the second appellate Court, regarding any
findings recorded by the Courts below, it is the duty of this
Court to intervene and rectify the legal error committed by
the Courts below, if any, by passing an appropriate order in
exceptional circumstances. In other words, therefore,
merely because of the concurrent findings of facts recorded
by both the Courts below, this Court is not powerless to
consider the debatable and significant substantial questions
of law so as to formulate and decide them in the larger
interest of justice, if any. The trial Court if it proceeds
further to entertain and try the suit without having
jurisdiction to entertain and try the suit according to the
law. Then, any such judgment, rendered by a trial Court
without having jurisdiction, would be considered as nullity.
In such exceptional cases where it appears so, the
preliminary question as to jurisdiction of the Court has to be
settled according to the law particularly when such
important question of law raised in relation to general public
importance i.e. relating to the very jurisdiction of the trial
Court to entertain and try the suit. The contention objecting
jurisdiction of the trial Court taken at early stage of the suit
cannot be ignored.
12. I feel it was the duty of the learned trial Judge to
earnestly consider the preliminary objection raised by the
defendants as to jurisdiction of the trial Court to entertain
and try the suit and to decide the same before taking any
further steps in the suit as such issue as to the jurisdiction
can go to the root of the institution of the suit itself. That
being so, the questions of law formulated as in paragraph
No.2 above become redundant in this second appeal.
13. For the above reasons, the impugned judgments
and orders dated 10.9.2013, passed by the learned Ad-hoc
District Judge-2 and Additional Sessions Judge, Nagpur, in
Regular Civil Appeal No.43 of 2010 and 21.11.2009, passed
by the learned Additional Judge, Small Causes Court,
Nagpur, in Regular Civil Suit No.44 of 2004, are hereby
quashed and set aside.
The parties are directed to appear before the trial
Court on 21.4.2014 and the trial Court is directed to frame
preliminary issue as to jurisdiction of the Court to entertain
and try the suit and thereafter to decide it in accordance
with law.
It is clarified, that in case, the trial Court holds,
that it has jurisdiction to entertain and try the suit, the trial
Court can consider the evidence, as to the rest of the issues
framed by it, on its own merits in accordance with law. No
order as to costs.
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