Under civil jurisdiction, the High Court of Judicature at Bombay dismissed a motion by Defendant No.9 to frame preliminary issues on limitation and res judicata as they involved mixed questions of law and fact.
Motion to frame preliminary issues dismissed. Issues to be decided on merits later.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.247 OF 2004
IN
SUIT NO.3099 OF 1999
Shantidevi Sohanlal Jhuria & Anr. ...Plaintiffs
V/s.
State of Maharashtra & Ors. ...Defendants
Mr.S.F.Rego i/b Bhaishankar Kanga & Girdharilal for
Plaintiffs.
Mr.Rayan D’Souza for Defendants 1 & 2.
Mr.R.Y.Sirsikar for Defendants 3 to 8.
Mr.K.R.Bulchandani i/b Potdar & Co. for Defendants
9 & 10.
Mr.Rajguru with Ms.Poonam Bhosale for Defendant
No.11.
CORAM: A.M.KHANWILKAR, J.
JULY 11, 2007.
P.C.
1. By this Motion, Defendant No.9 has urged
that the Court should formulate six issues as
preliminary issues to be tried at the first
instance. The six issues which the Defendant No.9
wants to be tried as preliminary issues are
: 2 :
articulated in Schedule at Page 5 of the Notice of
Motion. The same reads thus:
"1. Whether the plaintiffs prove that
affidavit dated 13.4.1982 is null, void,
illegal and has no legal effect and liable
to be cancelled?
2. Whether the defendants prove that the
plaint is liable to be rejected for the
reasons alleged in para 1 of the written
statement?
3. Whether the suit is barred by law of
limitation as alleged in para 1 of the
written statement of Defendant No.9?
4. Whether the suit is barred under the
provisions of Order 2 Rule 2 of the Code
of Civil Procedure?
5. Whether the suit is barred by
Res-judicata or principles analogus
thereto?
6. Whether the suit is bad for
non-joinder or proper parties as alleged
in paragraph 2(d) of Written statement of
Defendant no.9?"
2. Insofar as the first issue is concerned,
that will have to be considered at the trial and
cannot be decided as preliminary issue as it
involves mixed question of fact and law.
3. Insofar as the second issue is concerned,
that refers to the stand taken in the written
: 3 :
statement in Para 1 of the written statement that
in turn refers to the objection that the Suit is
not maintainable for non-payment of requisite Court
fees. It is well established position that if the
Plaintiff has paid deficit Court fees, appropriate
directions can be issued at the conclusion of the
hearing of the Suit so as to require the Plaintiff
to make over the deficit Court fee. Accordingly,
that issue can be tried along with all other
issues.
4. Counsel for the Defendant No.9 fairly
submits that out of different grounds set up in
Paragraph (1) of the written statement, he would
press only for ground stated in 1(e) to be decided
as preliminary issue so as to dismiss the Suit in
the exercise of powers under Order VII Rule 11 of
the Code of Civil Procedure - as the Suit is barred
by Law of Limitation as also principle of
resjudicata. In support of this submission,
reliance is placed on my decision dated 21st June
2002 in Suit No.4720 of 1998 between the same
parties. Emphasis was placed on observations in
Paragraphs 10 and 11 to contend that even the
: 4 :
present Suit deserves to be dismissed on the same
reasoning. However, it is not possible to accept
this argument in the fact situation of the present
Suit, which is for declaration that the writing
and/or affidavit dated 13th April 1982 Exhibit N to
the Plaint is null and void, illegal and of no
legal effect and that any action taken and/or any
dealing made and/or any effect given by Defendants
1 to 8 either singly or jointly in their records
pursuant to such writing and/or affidavit is
illegal ab initio. The averments in the present
Suit will have to be considered in the context of
the said relief. The point in issue involves
issues of Law and of fact and not issue of Law
only, so as to be tried as preliminary issue in
terms of Order XIV Rule 2(2) of the Code of Civil
Procedure. For the present, suffice it to observe
that the request of the Defendant No.9 to frame
preliminary issue in that behalf to be decided in
the first instance cannot be accepted.
5. Much emphasis was placed on the third
issue formulated in the Schedule referred to above
that the Suit is barred by Law of Limitation.
: 5 :
Insofar as the issue of limitation in the present
Plaint is concerned, it will be a mixed question of
fact and law which therefore cannot be decided as
preliminary issue.
6. For the present, Counsel for the Defendant
has fairly pressed to formulate only issue of
limitation as the preliminary issue and no other
issue.
7. For the reasons already recorded, it is
not possible to proceed to decide issue of Suit
being barred by limitation as preliminary issue.
That request is turned down. Accordingly, this
Motion is dismissed.
8. It is made clear that observations made in
this order should be understood to be limited to
have considered the prayer for framing preliminary
issue. The issues will have to be decided on their
own merits in accordance with law.
A.M.KHANWILKAR, J.
3 issues framed by the court
Whether preliminary issues on limitation and res judicata can be framed and tried independently of the main suit's declaration
Whether the present suit as a matter of law is barred by limitation or res judicata without trial of facts
Scope of court's observation being limited to the prayer for framing preliminary issues
Colour shows how this judgement treated each authority
Suit No.4720 of 1998 between the same partiesDistinguished¶31
Suit No.4720 of 1998
2 provisions across 1 enactments
Shantidevi Sohanlal Jhuria
State of Maharashtra
A.M.KHANWILKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court