Chogmal Rupchand Jain v. Jehangir Amangul Khan And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 508 OF 2015 Chogmal Rupchand Jain .. Applicant vs.

Jehangir Amangul Khan and ors.

.. Respondents Mr. Chirag Modi a/w. Mr. Deepak Shukla i/b Vinod Mistry & Co. for the Applicant.

Mr. Chetan Yadav i/b R.V. & Co. for Respondents. CORAM :

M. S. SONAK, J.

DATE : 28 AUGUST 2015.

P.C. :- 1] This Civil Revision Application challenges the order dated 26 March 2015 made by the Small Causes Court (Trial Court) rejecting the applicant's objection regarding jurisdiction of the Court under Section 9-A of the Code of Civil Procedure, 1908 (CPC). 2] This Court, in case of Walchandnagar Industries Ltd., Mumbai vs. Indraprastha Developers, Pune and others1, in the precise context of entertaining Civil Revision Applications under Section 115 of the CPC against the preliminary judgment rejecting objections regarding the jurisdiction of the Court under Section 9-A of the CPC, at paragraphs 75, 76 and 77 has observed thus: 2015(3) Mh.L.J. 786 1/4

"Preliminary judgment rejecting objection regarding the jurisdiction of Court under Section 9-A of Civil Procedure Code 75.

The parameters for exercise of jurisdiction under section 115 of Civil Procedure Code laid down in the aforesaid para in respect of Order VII, Rule 11(d) and Order XIV, Rule 2 of Civil Procedure Code cannot be applied in every situation to the cases where the Court decides the preliminary issues in exercise of its jurisdiction under Section 9-A of Civil Procedure Code, which permits the Court to decide a pure question of law and also a mixed question of law and fact, touching the jurisdiction of the Court. When the Court passes an order in exercise of its jurisdiction under Section 9-A on the principle of demurrer, then in that event the High Court should exercise its jurisdiction under Section 115 of Civil Procedure Code, for the reasons stated in the earlier para. However, when a decision relating to the question of jurisdiction of the Court based upon the conspectus of facts, the Court will have to decide in the facts and circumstances of each case whether such an interference is called for. 76.

Under Section 9-A of Civil Procedure Code, the Court is empowered to frame an issue as to the jurisdiction of the Court and to permit the parties to lead evidence in support of it, if it is a mixed question of law and fact. When a decision relating to the jurisdiction of the Court is based upon conspectus of facts, then a question of appreciation or reappreciation of the evidence on record, may arise. For example, the cases of bar of limitation, bar of res judicata, bar under Order II, Rule 2 of Civil Procedure Code, and the matters of like nature, where the parties lead oral and documentary evidence, and on conspectus of facts, the decision is arrived at by the Trial Court either that the suit is barred by law of limitation, or by a principle of res judicata or by a principle under Order II, Rule 2 of Civil Procedure Code. No doubt, these issues pertain to the jurisdiction of the Court in respect of which the power under Section 115 can be exercised.

77.

The question is, should this Court in aforestated situation exercise its jurisdiction under Section 115 of Civil Procedure Code. The High Court may not exercise its 2/4

jurisdiction in such situation.

The reasons would be - (i) the trial Court does not act beyond the jurisdiction, neither it fails to exercise the jurisdiction vested in it; (ii) the trial Court is bound to decide the right, may decide wrong, and merely because it has decided wrongly, it does not amount to doing something which it had no jurisdiction to do; (iii) it is not the function of the High Court under section 115 to appreciate or re-appreciate the evidence on record and to come to a conclusion different than the one arrived at by the Court below; (iv) the High Court cannot act as a Court of Appeal and substitute the view on facts taken by the trial Court; (v) section 115 does not confer a jurisdiction upon the High Court to correct the errors of fact, howsoever gross they may be, or even the errors of law, not touching the jurisdiction of the Court; (vi) the exercise of jurisdiction by the High Court shall deprive a statutory right of appeal available to the party to challenge the findings of fact recorded by the Court below to answer a preliminary issue either in the negative, (vii) the error, if any, can be corrected in more convenient and effective manner in wider jurisdiction of appeal; (viii) it is possible that if the suit is dismissed on merits, the decision on preliminary issue may lose its significance; and (ix) if any appeal is preferred against dismissal of suit, then in terms of sub-section (1) of section 105 read with Order XLIII, Rule 1-A or under Order XLI, Rules 22 and 33 of CPC, it can be urged in such appeal by the defendant that the Trial Court could not have passed such an order and the Appellate Court is bound to decide the same on its own merits.

3] In view of the aforesaid, including in particular, the observations in paragraph 77 above, there is no reason to entertain this Civil Revision Application. However, it is made clear that in case, the suit is finally decided against the applicant and the applicant chooses to institute a substantive appeal against such final decision, then the applicant shall be entitled to challenge the order dated 26 3/4

March 2015 in such substantive appeal, by resort to the provisions contained in Section 105(1) read with Order 43, Rule 1-A or under Order 41, Rules 22 and 33 of the CPC.

4] With the liberty as aforesaid, Civil Revision Application is dismissed. There shall be no order as to costs. (M. S. SONAK, J.) dinesh 4/4