{"id":86816,"date":"2006-04-07T00:00:00","date_gmt":"2006-04-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/madhuri-prabhakar-patole-vs-aruna-satishchandra-gaikwad-on-7-april-2006"},"modified":"2016-05-31T23:57:23","modified_gmt":"2016-05-31T18:27:23","slug":"madhuri-prabhakar-patole-vs-aruna-satishchandra-gaikwad-on-7-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/madhuri-prabhakar-patole-vs-aruna-satishchandra-gaikwad-on-7-april-2006","title":{"rendered":"Madhuri Prabhakar Patole vs Aruna Satishchandra Gaikwad on 7 April, 2006"},"content":{"rendered":"
Bombay High Court<\/div>\n
Madhuri Prabhakar Patole vs Aruna Satishchandra Gaikwad on 7 April, 2006<\/div>\n
Equivalent citations: 2006 (4) BomCR 238<\/div>\n
Author: A Khanwilkar<\/div>\n
Bench: A Khanwilkar<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
A.M. Khanwilkar, J.<\/p>\n
Page 1458<\/p>\n
1. 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 9A 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.\n<\/p>\n
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. v.  Sou. Nigam A. Manna Beskar and Ors., has taken the view  that Section 9A of the Code, as applicable to State  of Maharashtra, stands repealed by Section 32 of  the Code of Civil Procedure (Amendment) Act, 1999  and also by Section 16 of the Code of Civil  Procedure (Amendment) Act of 2002.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 9A 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 v. Deepak Sawhney reported in 1991 (1) BCR 107. On  that finding, the learned Single Judge has then  proceeded to observe that Section 9A 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 9A of the Code as it appears in the Statute  as of now. The said Section was initially  introduced by Maharashtra Page 1459 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 9A 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 9A was  inconsistent with the provisions of the Code as  amended up to 1976, which necessitated  reintroduction of Section 9A in the same form after  the 1976 amendment.\n<\/p>\n
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 the Applicant, Section 9A is a  provision which is 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 9A 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. v. State of Uttar Pradesh and  Anr. . 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 v. Union of India and Anr.<\/a> . In Para 24 of this decision,  while considering analogous submission, the Apex  Court observed thus:\n<\/p>\n
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 Page 1460 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:\n<\/p>\n
1. That there is a clear and direct  inconsistency between the Central Act the  the State Act.\n<\/p>\n
2. That such an inconsistency is  absolutely irreconcilable.\n<\/p>\n
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.\n<\/p>\n
4. It will be apposite to advert to the  exposition in Para 35 of the same reported  decision, which reads thus:\n<\/p>\n
35. On a careful consideration,  therefore, of the authorities referred to  above, the following propositions emerge :\n<\/p>\n
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.\n<\/p>\n
2. That there can be no repeal by  implication unless the inconsistency  appears on the face of the two statutes.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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 9A stood repealed, has adverted to the  principle stated by the Apex Court in the case of Ganpat Giri v. Second Additional District Judge,  Ballia and Ors.<\/a> 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 and Anr. v. Salma Begum  (Smt.)<\/a> 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 Page 1461 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.\n<\/p>\n
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 v. State  of Bombay<\/a> 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 9A 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 9A 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 9A 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.\n<\/p>\n
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 9A 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 9A  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. Page 1462 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 9A 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 9A 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 9A 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 9A is “directly inconsistent or  in collision” with the provisions of the Code.\n<\/p>\n
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 9A 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 re-introduced. In other words,  reintroduction of Section 9A by the State  Legislature was on the principle of Abundans  cautela non nocet.\n<\/p>\n
9. Suffice it to observe that the reasons  stated in the unreported Judgment of the learned  Single Judge produced before me, in my opinion,  would require indepth consideration.\n<\/p>\n
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.\n<\/p>\n
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 Page 1463 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, cannot be accomplished.\n<\/p>\n
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.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Madhuri Prabhakar Patole vs Aruna Satishchandra Gaikwad on 7 April, 2006 Equivalent citations: 2006 (4) BomCR 238 Author: A Khanwilkar Bench: A Khanwilkar ORDER A.M. Khanwilkar, J. Page 1458 1. This Revision Application takes exception to the Judgment and Order passed by the Civil Judge, Senior Division, Pune dated 5th December 2005 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-86816","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMadhuri Prabhakar Patole vs Aruna Satishchandra Gaikwad on 7 April, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/madhuri-prabhakar-patole-vs-aruna-satishchandra-gaikwad-on-7-april-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Madhuri Prabhakar Patole vs Aruna Satishchandra Gaikwad on 7 April, 2006 - 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