2006(5) ALL MR 554
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. KHANWILKAR, J.
Madhuri Prabhakar Patole Vs.Aruna Satishchandra Gaikwad
Civil Revision Application No.54 of 2006
7th April, 2006
Petitioner Counsel: A. A. KUMBHAKONI,T. D. DESHMUKH
Respondent Counsel: SUREL S. SHAH
Civil P.C. (1908), S.9A (as applicable to State of Maharashtra repealed by S.32 of Act, 1999 and by S.16 of Act, 2002 of C.P.C.) - Jurisdiction - Expression "departure" and "directly inconsistent" - Held there is marked distinction between meaning of expression "departure" and "directly inconsistent". W.P. No.10602/2004, Dt.14-03-2006, 1991(1) Bom.C.R. 107 & 1979(3) SCC 431 - Ref. to. (Paras 6 & 11)
The Solapur Social Urban Co-operative Bank Ltd. Vs. Sou. Nigam A. Manna Beskar, W.P. No.10602/2004, Dt.14-03-2006 [Para 2]
Meher Singh Vs. Deepak Sawhney, 1991(1) Bom.C.R. 107 [Para 2,6,7]
Basti Sugar Mills Co. Ltd. Vs. State of U. P., 1979(2) SCC 88 [Para 3]
M. Karunanidhi Vs. Union of India, 1979(3) SCC 431 [Para 3]
Ganpat Giri Vs. Second Additional District Judge, Ballia, 1986(1) SCC 615 [Para 5]
Pt. Rishikesh Vs. Smt. Salma Begum, 1995(4) SCC 718 [Para 5]
Zaverbhai Amaides Vs. State of Bombay, AIR 1954 SC 752 [Para 6]
JUDGMENT :- This Revision Application takes exception to the Judgment and Order passed by the Civil Judge, Senior Division, Pune dated 5th December, 2005 rejecting the preliminary issue raised at the instance of the Applicant about the jurisdiction of the Court to try and decide the Suit as instituted before that Court. In other words, the issue of jurisdiction of the Court was decided as preliminary issue in terms of section 9-A of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'). In the present Revision, the said order is challenged before this Court.
2. In the interregnum, however, this Court in an unreported decision, copy whereof is produced before me, decided on 14th March, 2006 in Writ Petition No.10602 of 2004 in the case of (The Solapur Social Urban Co-operative Bank Ltd. Vs. Sou. Nigam A. Manna Beskar& Ors.), has taken the view that section 9-A of the Code, as applicable to State of Maharashtra, stands repealed by section 32 of the Code of Civil Procedure (Amendment) Act, 1999 and also by section 16 of the Code of Civil Procedure (Amendment) Act of 2002. For reaching this conclusion, the learned Single Judge of this Court has found that section 9-A is a departure from the normal procedure to be followed by Civil Courts as to the time and manner of determination of issue regarding jurisdiction. This opinion is recorded relying on the exposition of the Division Bench of our High Court in the case of (Meher Singh Vs. Deepak Sawhney), reported in 1991(1) Bom.C.R. 107. On that finding, the learned Single Judge has then proceeded to observe that section 9-A is thus not consistent with the Code, for which reason, by virtue of section 32 of the Amending Act of 1999 and section 16 of the Amending Act of 2002, the same stood repealed. The learned Judge has then adverted to the legislative history for introducing section 9-A of the Code as it appears in the Statute as of now. The said section was initially introduced by Maharashtra Amendment Act, 1970. However, on account of Central Amendment of the Code by virtue of section 97 of the Central Amendment Act of 1976, the position which emerged was that except insofar as the provisions brought into force by State Act are consistent with the Code as amended by the Central Act of 1976 would stand repealed. The learned Judge has then adverted to the preamble of Maharashtra Amendment Act of 1977, whereby, section 9-A came to be reintroduced by Maharashtra Amendment Act of 1977, which later on received assent of the President on 9th December, 1977. Adverting to this legislative change, the learned Judge has noted that even the State Legislature was convinced that section 9-A was inconsistent with the provisions of the Code as amended up to 1976, which necessitated reintroduction of section 9-A in the same form after the 1976 amendment.
3. Counsel for the applicant submits that the approach of the learned Single Judge in reaching the above said conclusion is inappropriate. In the first place, contends learned Counsel, there is marked difference between expression "departure" and "directly inconsistent". Every departure, contends learned Counsel, need not necessarily be direct inconsistency or collision, which is the quintessence for invoking the sweep of provisions such as Article 254 of the Constitution of India or section 32 of the Central Amendment Act, 1999 and section 16 of the Amending Act of 2002. According to the Counsel for applicant, section 9-A is a provision which in addition or supplemental to the relevant provisions in the Code, inter alia, contained in Order XIV, Rule 2 and does not supplant the same. Viewed thus, it is not possible to hold that section 9-A is directly inconsistent with the provisions of the Code as such. To buttress this submission and to draw the distinction between the term "departure" and "inconsistent" and more particularly, to highlight the purport of expression "inconsistent", reliance is placed on the decision of the Apex Court in the case of (Basti Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh & Anr.), reported in 1979(2) SCC 88. In Paragraph 23 of this reported decision, the Apex Court has had occasion to examine the purport of expression "inconsistent". While referring to meaning ascribed to that word in Black's Legal Dictionary, it is observed that it means 'mutually repugnant or contradictory; contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other'. It is then observed that if the provisions relate to the same subject-matter, to the same situation and both substantially overlap and are co-extensive and at the same time, so contrary and repugnant in their terms and impact that one must perish wholly if the other were to prevail at all - then, only then, are they inconsistent. Reliance is then placed on the decision of the Apex Court in the case of (M. Karunanidhi Vs. Union of India & Anr.), reported in 1979(3) SCC 431. In Para 24 of this decision, while considering analogous submission, the Apex Court observed thus:
"24. It is well-settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:
1. That there is a clear and direct inconsistency between the Central Act the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other."
"35. On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:
1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.
2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.
4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field."
5. It should be mentioned to the credit of the Counsel for the respondent that although he has instructions to oppose this Revision, he submits in his usual fairness, that the question raised by the applicant will require indepth consideration. He, in turn, has brought to my notice that the learned Single Judge of this Court, while taking the view that section 9-A stood repealed, has adverted to the principle stated by the Apex Court in the case of (Ganpat Giri Vs. Second Additional District Judge, Ballia. & Ors.), reported in 1986(1) SCC 615. He submits that the wide legal position stated by the Apex Court in Ganpat Giri's case (supra) has been held to be not a good law in the subsequent decision of larger Bench of the Apex Court in the case of (Pt. Rishikesh & Anr. Vs. Smt. Salma Begum), reported in 1995(4) SCC 718. It will be useful to straight away advert to the observations at page 731 wherein, it is mentioned that the ratio stated in Ganpat Giri's case (supra) is on the facts of that case and is unexceptionable. But the observations which are extracted in the earlier part of the reported Judgment which have been held to be wide, construction put by the earlier Bench held to be not sound and good law.
6. Besides, Counsel for the respondent has also brought to my notice observations in the decision of the Constitution Bench of the Apex Court in the case of (Zaverbhai Amaides Vs. State of Bombay), reported in AIR 1954 SC 752. Counsel for the respondent intends to rely on other decisions to support the stand taken by the Applicant that the unreported decision of this Court which has held that section 9-A stands repealed, requires reconsideration. However, it is not necessary to burden this Judgment with all those decisions. This is so because I am of the view that the matter requires to be considered by a larger Bench of this Court to render an authoritative pronouncement on the questions raised before me. For, prima facie, I find substance in the stand taken on behalf of the applicant that there is marked distinction between meaning of expression "departure" and "directly inconsistent". It is not as if every departure will result in direct inconsistency or collision which is the quintessence for making the provision introduced by the State Legislature redundant or repealed by virtue of Central Act on the subject-matter. Indeed, I am conscious of the observations of the Division Bench in Meher Singh's case (supra), which have been relied by the learned Single Judge in the unreported decision produced before me - which has held that section 9-A is a departure from the procedure prescribed under Order XIV, Rule 2 of the Code. I am also conscious that sub-rule (2) of Rule 2 of Order XIV is an exception to the procedure to be adopted by the Court when issue of jurisdiction of the Court is raised. If such issue arises, as per the ordinary provisions of the Code, the same, nevertheless, can be tried and decided finally as preliminary issue by the Court in terms of Order XIV, Rule 2(2). In that, the same will have to be decided on demurer; unlike the provisions in the shape of section 9-A as applicable to the State of Maharashtra may permit the parties to lead evidence for adjudication thereof. Indubitably, decision on issue in terms of Order XIV, Rule 2(2) is also a final decision but as mentioned earlier, it will be on demurer.
7. The provision such as section 32 of the Central Amendment Act of 1999 and section 16 of the Central Amendment Act of 2002 is founded on the well established principle Leges Posteriores Priores Contraris Abrogant and indeed, to effectuate the mandate of Article 254 of the Constitution. The core issue, however, that requires to be addressed is: whether the provision such as section 9-A introduced by the Maharashtra Act can be said to be "directly inconsistent" with the provisions of the Code. Mere departure, as has been noted earlier, per se, does not result in a situation of being clearly and directly inconsistent or in direct collision with the Central Act. That the departure made by section 9-A unless it were held to be absolutely irreconcilable and of such a nature as to bring the two Acts into direct collision with each other and create a situation where it is impossible to obey the one without disobeying the other, the principle of abrogation will have no application. In other words, every departure or deviation or divergence will not result in being directly inconsistent or in collision. Instead, it is possible to take the view that the two provisions can stand together and operate in the same field and there is room or possibility of accomplishing the avowed object underlying the respective provision. There can be no doubt that the object underlying Order XIV, Rule 2(2) of the Code, which is an exception to the normal rule to decide all issues together, is the same as that of section 9-A as applicable to the State of Maharashtra. The departure is mainly regarding the modality of answering the preliminary issue. Under the Central Act, it has to be decided on demurer; whereas, the State Act permits the parties to even lead evidence in regard to that issue if required. Suffice it to observe that several aspects will have to be evaluated before a conclusive view is taken that the provision in the shape of section 9-A is directly inconsistent to the provisions of the Code. Whereas, the learned Single Judge has principally relied on the observation of the Division Bench in Meher Singh's case (supra) that section 9-A is a departure from the procedure prescribed under Order XIV, Rule 2 of the Code, which decision is not an authority on the point that section 9-A is "directly inconsistent or in collision" with the provisions of the Code.
8. I may now advert to the other reason which has weighed with the learned Judge. It is noted that even the Legislature of Maharashtra considered that section 9-A as introduced in the Code in relation to its application in the State of Maharashtra, was inconsistent with the provisions of the Code. Therefore, the State Legislature chose to reintroduce the said provision after the Central Amendment Act of 1976. With great respect, even this reason seems to be inaccurate. For, the fourth recital of the preamble of the Maharashtra Amendment Act of 1977, clearly mentions that to leave no room for any doubt, the said provision was being reintroduced. In other words, reintroduction of section 9-A by the State Legislature was on the principle of Abundans cautela non est.
10. As the abovesaid issue is of great public importance and a recurring question to be faced by this Court as also by the lower Courts time and again, it would be appropriate that the matter, which I intend to refer to larger Bench under this Order, is resolved at the earliest. The Registrar is directed to forthwith place the papers before the learned Chief Justice for seeking appropriate directions as may be required.
11. Before parting with this order, it will be necessary to consider as to the nature of interim order to be passed in the present Revision. According to the Applicant, the Civil Court before which Suit has been filed by the respondent has no jurisdiction. That issue goes to the root of the matter. However, so long as the issue now referred to the larger Bench of this Court under this order is not finally resolved, it will not be proper to proceed with the hearing of this Revision or for that matter, the trial which is pending before the lower Court. Whereas, Counsel for the respondent submits that the trial ought not to be stayed as the Suit will become infructuous by August, 2006, when the respondent is likely to stand superannuated. According to him instead, the trial may be allowed to proceed, but the trial Court may not be permitted to pass final Judgment. I see no propriety in accepting this submission. By no standards, it is possible to say as of today, that final decision on the issues which are now referred to the larger Bench will be rendered by August, 2006. In that case, even if the trial proceeds, the final judgment in the Suit cannot be delivered before August, 2006 and in which case, the purpose for which request is made by the respondent to allow the trial to proceed, for cannot be accomplished.
12. Viewed thus, in my opinion, the appropriate course is to stay the further proceedings pending before the trial Court till the final decision on this Revision is rendered. Accordingly, rule is granted in the main Revision and interim relief in terms of prayer Clause (c) is also granted to operate till the disposal of revision application. Mr. Shah waives notice for respondent.