: 1 : 8697-03-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8697 OF 2003 Sou. Janabai Kisan Golande .. Petitioner v/s. Sopan Babu Pol & Ors. .. Respondents ......... Mr. A.V. Anturkar with Mr. S.B. Deshmukh for the petitioner Mr. S.M. Gorwadkar for the respondents ......... CORAM : R.Y.GANOO, J DATE : 14th SEPTEMBER,2011. P.C. : 1. The petitioner herein had filed R.C. Suit No. 446 of 2002 in the Court of learned Civil Judge Senior Division, Pune praying that the petitioner has 1/6th share in the property covered by the said suit and that Sale Deed dated 29th August, 1975 executed by original defendant nos. 1 to 5 in favour of original defendant nos. 6 to 11 should be declared as null and void and not binding upon the petitioner. Other consequential prayers were made. After the service of the writ of summons the original defendant no. 6 Shri Ganpat H. Polekar, who is respondent no.6 in this petition filed an application before learned Trial Judge on 17th June, 2002. : 2 : 8697-03-wp=.sxw The said application was titled as “Application under Section 9A and Order 2 Rule 2 of Civil Procedure Code, 1908”. Final prayer in the said application was to the extent that the Court should frame preliminary issue under Section 9A of CPC and the question of jurisdiction of the Court should be decided. The learned 4th Joint Civil Judge, Junior Division, Pune no doubt framed preliminary issue on 15th July, 2002 as follows. “Whether the present suit is tenable as per the provisions of law”. 2. After this stage, the learned Trial Judge heard parties and passed order dated 29th July, 2002, which is as follows. “The petition at Exh.61 under Section 9A of C.P.C. is hereby allowed as prayed for and the detail order made below Exh.1”. Thereafter, on the very day, he passed an order on the main plaint as follows. “In view of the order below Exh.61 under Section 9A of the CPC, the plaint, Exh.1 is hereby rejected under Order 7 Rule 11(d) of CPC”. : 3 : 8697-03-wp=.sxw 3. Being aggrieved by these two aforesaid orders, original plaintiff- petitioner has filed this petition. Said Ganpat, who is respondent no.6 is the contesting respondent and that is how, I have heard learned advocates whose appearance are mentioned as above. 4. Learned advocate appearing on behalf of the petitioner contended that if it was the stand of the respondent no.6 that R.C. Suit No.446 of 2002 was filed without complying with the provisions of Order 2 Rule 2 of C.P.C., the respondent no.6 could not have filed Application under Section 9A because, question as regards jurisdiction, could not have been raised by respondent no.6. He further submitted that the learned Trial Judge heard the concerned parties and came to the conclusion that the Court has no jurisdiction under Section 9A. He submitted that the final order dated 29th July, 2002 below Exh.61 clearly goes to show that the learned Judge thought it fit to hold that the Court has no jurisdiction. He further submitted that if this was the view of the learned Judge, it was not open for the learned Judge to pass order on the plaint thereby returning the plaint. Learned advocate Mr. Anturkar appearing for the petitioner contended that the learned Trial Judge erred in appreciating the entire : 4 : 8697-03-wp=.sxw matter and he was totally confused as to how the Application under Section 9A of C.P.C. should be attended to and what order should be passed. According to learned advocate for the petitioner if the Court was of the view that Exh.61 should be granted as per Section 9A of the CPC, it was necessary for the learned Trial Judge to return the plaint to the petitioner for filing it in the appropriate Court. It was not open for him to reject the plaint. He further submitted that if the application was filed under Section 9A of CPC, the learned Trial Judge could not have been entertained it as an application under Order 7 Rule 11 of the CPC. He pointed out that the learned Judge was required to consider the application in the proper perspective particularly because the final prayer was to the effect that the question of jurisdiction should be decided. He, therefore, submitted that the orders passed by the Court below are wrong and are required to be set aside by this Court in its writ jurisdiction. 5. Learned advocate Mr. Gorwadkar appearing on behalf of the respondent no.6 submitted that if final order in the R.C. Suit No.446 of 2002 is to the effect that the plaint is rejected the said order dated 29th July, 2002 would be a decree and therefore the present writ petition is not maintainable and the Court should not entertain the same and the proper : 5 : 8697-03-wp=.sxw course for the petitioner was to file an Appeal. Learned advocate Mr. Gorwadkar, therefore, submitted that this petition should be dismissed. 6. I have considered the facts as well as the record and the rival contentions. At the outset, it is required to be mentioned that the proposition advanced by the learned advocate for respondent no.6 that if the plaint is rejected, said order has to be challenged by institution of an appeal and not by way of writ petition is well settled and no authorities are required in support of this proposition. 7. Now I turn to the merits of the two orders dated 29th July, 2002. A perusal of Application at Exh.61 goes to indicate that the thrust of the respondent no.6 was to contend that R.C. Suit No.446 of 2002 suffers from the bar of Order 2 Rule 2 of CPC and that the suit is not maintainable. If this was the stand of respondent no.6, he could have applied to the Court to pray that the plaint be rejected as per the provisions of Order 7 Rule 11. No doubt, it is mentioned in the title of the application that the application is also under Order 2 Rule 2 of the C.P.C. The final prayer in the said application was calling upon the Court to frame preliminary issue as regards jurisdiction under Section 9A of C.P.C. It is to be noted that the : 6 : 8697-03-wp=.sxw learned Trial Judge no doubt framed issue on 15th July, 2002 called himself to decide as to whether the suit is tenable as per the provisions of law. 8. It is noticed that the learned Trial Judge first to came to the conclusion that the question of jurisdiction is to be answered in favour of respondent no.6 by granting Application at Exh.61. Thereafter, he rejected the plaint by making use of provisions of Order 7 Rule 11(d) of the CPC. 9. After having considered the two orders, it is clear that the learned Trial Judge was confused about the proceedings before him. He came to the conclusion that application under Section 9A should be allowed and thereafter, he came to the conclusion that because he had granted Application at Exh.61, he is obliged to reject the plaint. He, therefore, rejected the plaint. 10. In my view, the entire approach of the learned Trial Judge was incorrect. He should have considered the facts and circumstances of the submissions in the proper perspective and he should have decided the application. If at all, he was of the view that the provisions of Section 9A are attracted, he could have returned the plaint to the present petitioner : 7 : 8697-03-wp=.sxw for filing it in the appropriate Court. It was not open for him to reject the plaint. In my view, both the impugned orders are patently incorrect. It is noticed that first order dated 29th July, 2002 was passed so as to upheld the stand as regards jurisdiction and thereafter the order rejecting the plaint was passed. In my view, the second order could not have been passed and is patently illegal in the wake of finding that application at Exh.61 under Section 9A of C.P.C. should be granted. In view of the aforesaid discussion, the objection raised by learned advocate for the respondent no.6 that Appeal should have been filed, cannot be accepted. This Court, surely, cannot read only latter order by which the plaint came to be rejected. I hold that the latter order came to be passed in erroneous manner even if the first order below Exh.61 was treated as correct. In my view, the respondent no.6 himself created a confusion by filing an application at Exh.61 making use of the two provisions of law, namely Section 9A and Order 2 Rule 2 of CPC. Thereafter, the learned Trial Judge erred in passing these two orders. These two orders, therefore, will have to be set aside and the suit will have to be restored to the file of the Court for the decision in accordance with the provisions of law. It is hereby clarified that if respondent no.6, even today, wants that on certain counts the plaint be rejected, it will be open for him to make such an application : 8 : 8697-03-wp=.sxw and the said application will have to be decided on merits. For the reasons mentioned aforesaid, following order is passed to dispose of the petition. ORDER (i) Writ Petition is made absolute. Order dated 29th July, 2002 below Exh.61 granting Exh.61 as also order dated 29th July, 2002 rejecting the plaint are set aside. (ii) R.C. Suit No.446 of 2002 is restored to the file of learned Civil Judge, Senior Division, Pune for decision in accordance with the provisions of law. It is clarified that if respondent no.6 wants to file an application for rejection of the plaint as per provisions of Order 7 Rule 11, the respondent no.6 is free to do so. Of course, such an application shall be disposed of in accordance with the provisions of law. (iii) In the facts and circumstances, there shall be no order as to costs. (R.Y.GANOO, J.)