Civil Application Nos. 3587 of 2012,First Appeal Nos. 3591 of 2012,First Appeal Nos. 3593 of 2012,First Appeal No. 1492 of 2012,First Appeal No. 1493 of 2012,First Appeal No. 1494 of 2012

23rd October, 2012

Petitioner Counsel: Mr. G.S. Godbole,Mr. Ajit Kenjale
Respondent Counsel: Mr. A.R. Patil

JUDGMENT

-On the last date, the parties were put to notice that the Appeals will be taken up for final disposal at admission stage. Accordingly, submissions were heard on 20th October, 2012 and today.

2. The Appeals are preferred by the same original Plaintiff against the Defendant. By the impugned Judgments and Decrees, the learned Trial Judge has dismissed three separate Suits filed by the Appellant on the ground of bar of jurisdiction.

3. The suits relate to the contracts awarded by the Defendant to the Plaintiff. The contracts were in relation to the civil work under the Pradhan Mantri Gram Sadak Yojana, Public Works Department of Government of Maharashtra. The suits were filed for recovery of amounts for the work, which is already carried out and damages on account of purported termination of contract by the Defendant. Perpetual injunction was also prayed for. It appears that in all the three suits, Applications were made by the Defendant praying for framing preliminary issue of jurisdiction. The contention of the Defendant was that under the clause 24 of the contract, a dispute redressal system has been provided for and therefore, the jurisdiction of the Civil Court to entertain the suits has been ousted by necessary implication.

4. Learned Counsel appearing for the original Plaintiff has invited our attention to the relevant clauses of the agreements. He submitted that there is no arbitration clause and even assuming that a dispute redressal mechanism is provided in the agreements, the same will not oust the inherent jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure, 1908. He invited our attention to the roznama of the proceedings. He submitted that in fact submissions were heard only on the applications made by the Defendants praying for framing of preliminary issue of jurisdiction and without framing preliminary issue and without giving an opportunity to the parties to adduce evidence, the learned Judge straightaway decided the preliminary issue. He pointed out roznama of the proceedings which shows that on 21st September, 2012 i.e. 17 days after the impugned Judgments and Decrees were passed, the learned Judge recorded in the roznama that the Applications made by the Defendant for framing issues were allowed. He submitted that the said order recorded in roznama shows that the preliminary issues were never framed by the learned Judge and what was pending before the learned Judge was not the preliminary issue of jurisdiction, but the applications for framing preliminary issue.

5. The learned AGP invited our attention to the Order dated 15th May, 2012 passed by the learned Trial Judge on Application at Exhibit 21 in Special Civil Suit No. 62 of 2012, which is the subject matter of First Appeal No. 1494 of 2012. He pointed out that preliminary issue was in fact specifically framed on 15th May, 2012 and that is how the impugned order came to be passed on the preliminary issue. He pointed out the Order dated 21st September, 2012 passed by the learned Trial Judge below Exhibit 25 for framing preliminary issue in Special Civil Suit No. 54 of 2012. He pointed out that in the said order, the learned Judge has specifically noted that all the three suits were kept together and in fact a specific order was passed on 15th May, 2012 in Special Civil Suit No. 62 of 2012 framing a preliminary issue. He pointed out that the learned Judge has specifically recorded that oral orders were passed in all three suits of framing preliminary issues, but due to oversight, the orders were not recorded on relevant applications in the two other suits. He, therefore, submitted that this order passed by the learned trial Judge which records what transpired in the court clearly shows that on 15th May, 2012, preliminary issues were framed in all three suits. He, therefore, submitted that in all the three impugned Judgments, there is a reference to the preliminary issue of jurisdiction framed by the learned trial Judge.

6. The learned Counsel appearing for the Appellant submitted that this Court should consider the preliminary issue on merits. In the alternative, he submitted that in the event this Court is inclined to remand the matter, the costs of the Appeals be awarded to the Plaintiff as the Plaintiff has paid court fees of Rs. 3 Lakhs in each Appeal. He submitted that for no fault of the Plaintiff, he cannot be made to pay huge amount of court fees.

7. The learned AGP submitted that if the submissions of the learned Counsel appearing for the Appellant are correct, it is really a fault of the Court and therefore, the State Government cannot be saddled with costs.

8. We have carefully considered the submissions. In all three suits, admittedly the Applications for temporary injunction were pending. Pending the said Applications, the Applications were made by the Defendants for framing preliminary issue, obviously, invoking Section 9A of the Code of Civil Procedure (hereinafter referred to as the said Code). The law on this aspect is well settled. If objection to the jurisdiction is raised by the Defendants at the time of hearing of the Application for temporary injunction or application for appointment of Court Receiver, it is the duty of the Court to decide the said objection after framing a preliminary issue. After framing preliminary issue, the Court is required to give an opportunity to both the parties to adduce evidence on the preliminary issue and thereafter, decide the preliminary issue.

9. Coming back to the facts of individual case, in Special Civil Suit No. 58 of 2012, which is the subject matter of the First Appeal No. 1493 of 2012, the Application for framing preliminary issue was made at Exhibit 21, which was contested by the Plaintiff. Perusal of the roznama of S.C. Suit No. 58 of 2012 shows that the said Application was made on 27th March, 2012. Reply was filed to the said Application on 11th April, 2012. Thereafter, repeatedly the suit was adjourned for hearing of application at Exhibit 21. Roznama dated 15th May, 2012 does not indicate that on that day the Application at Exhibit 21 was decided as the roznama shows that on that day, the suit was adjourned for hearing of Exhibit 21 to next date. On that date, there is a recording that arguments were heard and again the matter was adjourned for hearing of application at Exhibit 21. There is no recording that the Application at Exhibit 21 was decided. Thereafter, repeatedly the matter was adjourned. The impugned Judgment and Order in all the three suits is dated 4th September, 2012. In the roznama of S.C.Suit No. 58 of 2012, there is a further recording made on 21st September, 2012 by the learned Judge that the roznama was not written on three dates from 18th August, 2012 due to heavy pressure of work and therefore, roznama of the three dates is being recorded. Further, it is recorded that the Suit was dismissed on 4th September, 2012 and thereafter, the record was called for by the learned Principal District Judge. On 21st September, 2012, the learned Trial Judge has recorded an order passed below Exhibit 21 framing preliminary issue. It must be noted here that there is no entry made by the learned Judge to the effect that any such order was pronounced earlier on 15th May, 2012. If the roznama dated 21st September, 2012 is perused, it is apparent that order dated 21st September, 2012 is passed on the very date which is after the disposal of the suit. Thus, the preliminary issue was purportedly decided though the same was not at all framed.

10. Now turning to the S.C. Suit No. 54 of 2012 (which is a subject matter of the First Appeal No. 1492 of 2012), we may note that on 27th March, 2012, the application for framing preliminary issue was made at Exhibit 25. On 11th April, 2012, there was a reply filed to the said Application. Thereafter, the Suit was repeatedly adjourned for hearing of Application at Exhibit 25. On 15th May, 2012, the Suit was again adjourned for hearing of the said Application to 18th June, 2012. Thereafter, continuously the Suit was adjourned for hearing of the said Application. As far as this Suit and S.C. Suit No. 58 of 2012 are concerned, there is no material difference except the fact that in Suit No. 54 of 2012, the roznama is maintained till 4th September, 2012. We may note here that on 17th July, 2012 arguments were completed and the Suit was adjourned for passing order on Application at Exhibit 25. Even on 1st September, 2012, the Suit was adjourned to 4th September, 2012 for passing order on Application at Exhibit 25 and the Suit was dismissed on 4th September, 2012. Even in this case, on 21st September, 2012 an order allowing the Application at Exhibit 25 framing preliminary issue has been recorded. Even in the said order passed in the roznama, the learned Judge has not recorded that the oral order was pronounced on 15th May, 2012.

11. Now turning to S.C. Suit No. 62 of 2012 (which is a subject matter of First Appeal No. 1494 of 2012), it is true that on Application at Exhibit 21 filed by the Defendants for framing preliminary issue there is an order passed on 15th May, 2012 directing framing of preliminary issue and directing the parties to argue on the issue. In this case, the said Application for framing preliminary issue was filed on the same date i.e. on 27th March, 2012. However, the roznama dated 15th May, 2012 shows that the Suit was adjourned for hearing of Exhibit 21. The roznama does not record that the Application at Exhibit 21 was decided on that day. In fact, it records that the Suit was adjourned to 18th June, 2012 for hearing of the Application Exhibit 21. Except for roznama dated 26th June, 2012 and 28th June, 2012, which record that the Suit was adjourned for framing preliminary issues, till 21st September, 2012 the roznama records that the matter was pending either for the hearing of the application at Exhibit 21 or for passing orders on Exhibit 21. Even in this case, on 21st September, 2012 the learned Judge has recorded in the roznama that the roznama was not written from 31st July, 2012 and the said entries are being made on 21st September, 2012 after the record was received back from the learned Principal District Judge. Thus, the roznama shows that entry of order dated 15th May, 2012 is not made in the roznama of Suit. At no stage, the Suit was fixed for recording evidence on preliminary issue. Thus perusal of the roznama in all the three Suits shows that in two suits, orders framing preliminary issue was never passed and the same were passed after disposal of the suit. In one Suit i.e. S.C. Suit No. 62 of 2012, an order appears to have been passed on Exhibit 21 of framing preliminary issue on 15th May, 2012. But, the same is never reflected in the roznama and the Suit was never fixed for hearing on preliminary issue.

12. Therefore, there is a substance in submission of the learned Counsel appearing for the Appellant that arguments were heard only on the Applications for framing preliminary issue and not on preliminary issue. There could not have been submissions on the preliminary issues as the same were not framed to the knowledge of the parties. In any case, the Suits were never fixed for recording evidence, if any, on the preliminary issues and for hearing of preliminary issues. Thus, preliminary issue of jurisdiction has been decided without framing the same and without giving an opportunity to both the parties to adduce evidence. In view of this position, it will not be appropriate for this Court to decide the preliminary issues in these Appeals. Hence, the only option is of passing orders of remand with a view to decide the preliminary issues.

13. Learned Counsel appearing for the Appellant has prayed for continuation of status quo, which was granted earlier by the Trial Court. However, we may note here that in all three Suits, work order has already been issued to another contractor and the work has been started. The Applications for temporary injunction are pending. Therefore, the Plaintiff may seek appropriate interim relief in accordance with Sub-Section 2 of Section 9A of the Code.

14. Now coming to the order of costs, we have noted that there is no option, but to pass an order of remand to the Trial Court. In view of mandate of Section 9A, the preliminary issue of jurisdiction has to be decided. Hence, the order of costs will depend on the outcome of the preliminary issue. Therefore, we direct the Trial Court to award costs of these Appeals to the Plaintiff at the time final hearing of the Suits, in the event the Plaintiff succeeds therein. Normally this Court does not pass order of transfer without there being a case for transfer made out in accordance with Section 24 of the said Code. However, looking to the manner in which the Suits have been conducted, the same will have to be heard by some other learned Judge.

15. Hence, we pass following order :

(i) The impugned Judgments and Decrees are set aside and the Suits are remanded to the Trial Court. The Trial Court shall fix the suits for recording of evidence on the preliminary issues of jurisdiction raised by the Defendant. After giving an opportunity to both the parties to adduce evidence, learned Trial Judge shall proceed to decide the preliminary issues in accordance with law.

(ii) It will be open for the Plaintiff to seek appropriate ad-interim relief in accordance with Sub-section 2 of Section 9A of the said Code.

(iii) The Appeals are partly allowed on the above terms. However, all contentions of the parties on merits of the Suits are kept open.

(iv) In the event the Plaintiff ultimately succeeds in the Suits, we direct that while awarding costs, the learned Trial Judge shall direct the costs of these Appeals to be made a part of the costs payable to the Plaintiff.

(v) The learned Trial Judge shall decide the preliminary issues as expeditiously as possible, in any event, within a period of 2 months from the date on which writ of this Judgment is received by the said Court.

(vi) Civil Application Nos. 3587 of 2012, 3591 of 2012 and 3593 of 2012 will not survive and the same are disposed.

(vii) We direct the learned Principal District Judge to assign the three suits to some other learned Judge.

Appeals partly allowed.