1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 2394 OF 2007 (Abhay Vishwas Ranade .v. Smt. Maya Vishwas Ranade and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri M.G. Bhangde, Senior Advocate for the petitioner. Shri Sunil Manohar along with Shri S.V. Bhutada, Advocate for the respondent Nos.1 (i) and (ii). Shri P.V. Vaidya, Advocate for the respondent Nos.2 to 5. CORAM : R.V. MORE, J. DATE OF RESERVING ORDER - 25TH MARCH, 2008. DATE OF PRONOUNCING ORDER – 06TH MAY, 2008. Heard the learned Counsel appearing on behalf of the respective parties. 2. The petitioner takes exception to the order dated 20.01.2007 passed below Exh.80 in Special Civil Suit No.581/1998 and the order dated 17.04.2007 passed in Review Application No.74/2007. By the first order, the petitioner's application at Exh.80 for framing additional issue about maintainability of the suit and to decide the same as preliminary issue, was allowed partly. The trial Court framed additional issue in respect of the maintainability of the suit, however, refused to decide the same as a preliminary issue. By the second order, the petitioner's application for review of the first order was rejected. 2 3. The respondent No.1 – late Smt. Maya had earlier filed Civil Suit No. 911 of 1992 against her husband Shri Vishwas for possession of the suit property. In this suit, the respondent No.1- late Smt. Maya alleged ownership and title over the suit property and claimed possession on that basis. This suit was withdrawn in the year 1994 without seeking any permission to file fresh suit. In spite of this, late Smt. Maya filed present Special Civil Suit No. 581 of 1998 against the petitioner, who is her son and two others for possession of the suit property. In this suit also, late Maya claimed title of the suit property and alleged that the petitioner is illegally and unauthorisedly in occupation of the same. In second suit, decree of declaration declaring that the petitioner has no title to the suit property is also asked for along with the decree of eviction against the petitioner. 4. The petitioner, by filing Written Statement in the present suit i.e. Special Civil Suit No. 581 of 1998, contended that the respondent No.1-late Maya having withdrawn earlier suit namely Special Civil Suit No.911 of 1992, has no right to file present suit. In spite of these pleadings, issue regarding maintainability of the second suit in view of the withdrawal of the first suit was not framed and hence the petitioner filed an application at Exh.80 on 17.11.2007 with prayer to frame additional issue of maintainability of suit and to try the same as a preliminary issue. 3 5. The respondents did not oppose the petitioner's request for framing of additional issue about maintainability of the suit, however, contested the petitioner's prayer to decide the issue of maintainability as a preliminary issue, on the grounds that the evidence is already begun and in order to decide the issue of maintainability of the suit, evidence is required to be adduced. 6. The trial Court by an order dated 20.01.2007 disposed of petitioner's application at Exh.80 thereby partly allowing the same by framing the additional issue regarding maintainability of the suit and refusing to decide the same as a preliminary issue. The petitioner, therefore, preferred review Application No. 74/2007 for review of the order dated 20.01.2007. However, this application also came to be rejected. As stated above, both the orders are being challenged by way of filing the present petition. 7. Shri M.G. Bhangde, the learned Senior Counsel appearing on behalf of the petitioner, contended that in a Special Civil Suit No.911 of 1992, the respondent No.1 – late Smt. Maya claimed title of the suit property and prayed for decree of possession. Late Maya having withdrawn the suit in the year 1994, without seeking any permission to file fresh suit, could not have filed the present Special Civil Suit No. 581 of 1998, claiming title over the suit property with prayer for declaration that the petitioner/defendant No.1 have no right, title or authority of whatsoever nature in respect of the suit 4 property as well as decree for petitioner's eviction. The petitioner/defendant does not want to lead any evidence on the additional issue framed by the Court by the impugned order and the said issue can be decided on the basis of the admitted facts by comparing the plaint in earlier suit and present suit and in fact no evidence is required to be adduced to decide the said issue. He further submitted that the ground on which the trial Court rejected his application partly is not correct. He relied upon the various judgments in the cases of Shakuntala Balwant Gadgil .v. Shubhada Suhas Kulkarni (reported in 1985 Mh.L.J., 77); T.K. Lathika .v. Seth Karsandas Jamnadas (reported in 1999(6) SCC, 632); Master Amit Ashok Agrawal .v. Khandesh Urban Co-operative Credit Society Limited (reported in 2002(2) All MR, 669); Abdul Rahman .v. Prasony Bai and another (reported in 2002(8) Scale, 479); and N.R. Govindarajan .v. V.K. Rajagopalan and others (reported in 2005(12) SCC, 362). 8. Per contra, Shri Sunil Manohar, the learned Counsel appearing on behalf of the respondent Nos.1 (i) and (ii) supported the trial Court's order. He submitted that the suit is of the year 1998 and the Written Statement is filed by the petitioner in the year 1999. Issues are framed in the year 2001. However, no attempt had made to get the issue tried as a preliminary issue. the application for framing issue regarding maintainability of the suit and request to decide the same as a preliminary issue, has come at the time when the respondent No.1/ 5 plaintiff had already filed her examination-in-chief on affidavit. The suit is at advanced stage and, therefore, the view taken by the learned trial Court is reasonable. He further submitted that phrase “subject matter” appearing in clause 4 of Order 23 Rule 1 includes the cause of action and relief claimed and, therefore, unless cause of action and relief claimed in the second suit are one and the same, it cannot be said that the subject matter of the second suit is the same as in the previous suit. He further submitted that the cause of action means the bundle of facts which gives the legal right to sue. He further submitted since in both the suits, title is to be proved, that does not mean that the cause of action is the same. He submitted that the reason for compromising first suit by way of out of court settlement and the cause of action and reason for filing the second suit is a matter of evidence and the respondent No.1/plaintiff seeks to lead evidence on those aspects. Therefore, the issue regarding maintainability cannot be decided as a preliminary issue. Shri Manohar also relied upon the judgment in the cases of Vallabh Das .v. Dr. Madanlal and others (reported in AIR 1970 SC 987); Maharashtra State Warehousing Corporation Ltd., Pune .v. Bhujang Krishnaji Kohale (reported in 1999(3) Mh.L.J., 652); and Mohd. Yunus .v. Mohd. Mustaqim and others (reported in AIR 1984 SC 38). 9. Having heard the learned Counsel appearing on behalf of the respective parties and having gone through the impugned order along with the case laws referred above, I am of the opinion that the 6 impugned orders do not require any interference in exercise of my jurisdiction under Article 227 of the Constitution of India. 10. The Apex Court in the case of Ramesh B. Desai and others .v. Bipin Vadilal Mehta and others (reported in 2006(5) SCC 638) has considered the scope of Order 14 Rule 2. In para 13 of this decision, the Apex Court held that the Code confers no jurisdiction upon the Court to try a suit on mixed issue of law and facts as a preliminary issue and where the decision on issue of law depends upon the decision of fact, it cannot be tried as a preliminary issue. In view of this decision, in my opinion, therefore, if the issue of law depends upon the decision of facts which required to be proved then the same cannot be tried as a preliminary issue. Turning to the facts of the present case, the first suit was filed against Vishwas, the father of the petitioner for decree of possession and the second suit was filed against the respondent No.1 for eviction as well as for declaration. The contention of the learned Counsel for the petitioner that in the absence of permission as contemplated under Clause 4 of Order 23 Rule 1, second suit in respect of the same subject matter could not have been filed. The expression “subject matter” is considered by the Supreme Court in the case of Vallabh Das .v. Dr. Madanlal and others (cited supra). In para No.5, the Supreme Court has observed thus :- “The expression “subject matter” is not defined in the Civil Procedure Code. It does not mean the property. That expression has reference to a right in the property which the 7 plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject matter of the second suit is the same as that in the previous suit.” Plain reading of the above observations of the Apex Court will reveal that unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject matter of the second suit is the same as that in the previous suit. 11. In the light of above observations, in my opinion, the submission of the respondents required to be considered. It is the specific case of the respondents that not only reliefs claimed in both the suits but even the parties are different. It is further contention of the respondents that the first suit is only for possession and that too only against the husband and second suit is not only for possession but also for declaration that the petitioner/defendant No.1 has no right, cause or interest in the property. It is further the case of the respondents in short that the parties, the reliefs and even the cause of action are completely different in both the suits. In view of the aforesaid specific case of the respondents, if they want to lead evidence regarding reason for compromising earlier suit and the cause of action and reason for filing second suit, they cannot be prohibited from doing so. Consequently the issue regarding maintainability of the present suit, in my opinion, cannot be decided as a preliminary issue. The respondents, in my view, correctly relied upon the decision 8 of Maharashtra State Warehousing Corporation Ltd., Pune .v. Bhujang Krishnaji Kohale (cited supra). The learned Single Judge in para 27 of this judgment has held that if the issue regarding jurisdiction or bar to the suit by any provisions of law is a mixed question of law and fact and/or requires investigation into the facts, the same cannot be tried as a preliminary issue. 12. This takes me to consider the case law cited by the petitioner. In the case of Shakuntala Balwant Gadgil .v. Shubhada Suhas Kulkarni (cited supra), the learned Single Judge has held that the preliminary issue if tried will result in quick disposal of the suit and the Court must take every opportunity for disposing of the litigation in such an expeditious manner. However, in the present case, the suit filed in the year 1998 has already reached the advance stage of hearing and if the trial Court in its discretion decides to hear the preliminary issue at the time of final hearing of suit then no fault can be found. 13. Insofar as the decision in the case of T.K. Lathika .v. Seth Karsandas Jamnadas (cited supra) is concerned, the Apex Court held that the question as to maintainability of the suit must be decided first and only if the issue of maintainability is answered in the affirmative, the merits can be gone into. The Apex Court was dealing with the third proviso of Section 11(3) of Kerala Buildings (Lease and Rent Control) Act, 1965 which disentitles a landlord from applying for eviction of the tenant before the expiry of the moratorium period of 9 one year. The facts of this case are totally different and ratio laid down by the Supreme Court cannot be made applicable to the present case. 14. In the case of Master Amit Ashok Agrawal .v. Khandesh Urban Co-operative Credit Society Limited (cited supra), the learned Single Judge of this Court mainly dealt with the question whether the provisions of Order 14 Rule 2 of CPC are applicable to the Cooperative Court and this question is answered in affirmative. 15. Insofar as the decision in the case of Abdul Rahman .v. Prasony Bai and another (cited supra) is concerned, in para 21, the Apex Court has observed as follows. “For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order XIV Rule 1 of the Code of Civil Procedure, a Civil Court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues.” These observations are not applicable to the facts and circumstances of the present case, inasmuch as it is the contention of the respondent No.1 that the reasons for compromising of first suit and for filing of second suit is the matter of evidence and he seeks to lead evidence on 10 those aspects. 16. Insofar as the decision in the case of N.R. Govindarajan .v. V.K. Rajagopalan and others (cited supra) is concerned, the same has also no application inasmuch as the objection was taken in the written statement that the Court Fee paid by the plaintiff is deficit and the appellant did not propose to adduce any evidence in support of the plea taken in the written statement in this regard. In the present case, since it is the stand of the respondent that the evidence needs to be adduced, this ratio has no application to the facts and circumstances of the present case. 17. Be that as it may, the Supreme Court in the case of Mohd. Yunus .v. Mohd. Mustaqim and others (cited supra) has considered the scope of Article 227 of the Constitution of India. In para 6 and para 7, the Supreme Court has observed as under. “6. ... A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. 7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority”, and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned 11 Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.” 18. In the present case, the learned trial Judge has rejected the petitioner's request to decide the issue regarding maintainability of suit as a preliminary issue on two grounds, namely, the evidence is already begun and secondly for the purpose of this issue, evidence is required to be adduced. There is no dispute that the plaintiff has already filed his evidence on affidavit and if in these facts and circumstances, the trial Court in its discretion if refused to decide issue of maintainability as a preliminary issue in that case no fault can be found. The trial Court, in my opinion, exercised discretion within the limit of its authority and, therefore, no interference is called for. The writ petition is accordingly dismissed. JUDGE *rrg.