Case Note & Summary
The applicant, a registered public trust, was sued by the respondent for specific performance of an agreement to sell trust property and for a mandatory injunction to obtain permission from the Joint Charity Commissioner. The applicant filed an application under Order VII Rule 11 CPC raising preliminary objections that the suit was not maintainable for want of prior sanction under Section 36 of the Bombay Public Trusts Act, 1950, and was barred by limitation. The trial court rejected the application, holding that the maintainability issue had already been considered earlier and that the limitation question was a mixed question of law and fact requiring trial. The applicant filed a civil revision under Section 115 CPC challenging this order. The High Court examined whether the revision was maintainable. It held that the impugned order did not finally determine any right or obligation of the parties but merely postponed the decision to the final hearing. Such an order is interlocutory and does not amount to a 'case decided' under Section 115 CPC. Therefore, the revision was not maintainable. The court also noted that the trial court's decision to postpone the issues was justified as they involved mixed questions of law and fact. The revision was dismissed, and the trial court was directed to expedite the suit.
Headnote
A) Civil Procedure Code, 1908 - Section 115 - Revision - Maintainability - Interlocutory Order - Order postponing decision on maintainability and limitation to trial does not finally determine rights of parties - Revision not maintainable as order does not amount to a case decided - Held that revision under Section 115 CPC is not maintainable against an order that merely postpones the decision on preliminary issues to the final hearing (Paras 2, 5-7).
B) Bombay Public Trusts Act, 1950 - Section 36, Section 50, Section 51 - Suit for Specific Performance - Maintainability - Prior Sanction - Suit for specific performance of agreement to sell trust property without prior sanction of Charity Commissioner - Question of maintainability involves mixed questions of law and fact - Trial court justified in postponing decision to final hearing (Paras 3, 5).
C) Limitation Act, 1963 - Bar of Limitation - Mixed Question of Law and Fact - Application under Order VII Rule 11 CPC - Question of limitation requires evidence and cannot be decided solely on plaint allegations - Trial court's order postponing decision to trial is proper (Paras 3, 5).
Issue of Consideration
Whether a civil revision is maintainable against an order of the trial court postponing the decision on the issue of maintainability of the suit and on the question of bar of limitation to the trial of the suit.
Final Decision
The Civil Revision Application is dismissed. The trial court is directed to expedite the hearing of Regular Civil Suit No. 70 of 2006 and decide it as expeditiously as possible. Rule discharged. No order as to costs.
Law Points
- Revision maintainability
- Interlocutory order
- Order VII Rule 11 CPC
- Bombay Public Trusts Act
- 1950
- Section 36
- Section 50
- Section 51
- Limitation Act
- 1963
- Mixed question of law and fact
Case Details
2010 LawText (BOM) (02) 120
Civil Revision Application No. 36 of 2008
Smt. R. P. SondurBaldota, J.
Mr. A.C.Dharmadhikari for Applicant, Mr. Rohit Sharma h/f Mr. Anand Parchure for Respondent
Maternity Home, Pulgaon, a registered Public Trust through its President Shri Bansilal S/o Suwalal Patni
Kishorkumar S/o Sunderlal Khurana
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Nature of Litigation
Civil revision against order rejecting application under Order VII Rule 11 CPC for postponing decision on maintainability and limitation to trial.
Remedy Sought
Applicant sought quashing of trial court's order and allowance of application under Order VII Rule 11 CPC.
Filing Reason
Trial court postponed decision on maintainability of suit and bar of limitation to final hearing.
Previous Decisions
Trial court had earlier disposed of application Exh.6 on 11-10-2007 holding that issues require merits and should be decided at final hearing.
Issues
Whether revision under Section 115 CPC is maintainable against an order postponing decision on preliminary issues to trial.
Whether the trial court erred in not deciding the application under Order VII Rule 11 CPC on merits.
Submissions/Arguments
Applicant argued that the trial court ought to have decided the application under Order VII Rule 11 CPC as the questions could be decided on plaint allegations alone, and postponing decision amounts to illegality and material irregularity.
Respondent argued that the order is interlocutory and revision is not maintainable.
Ratio Decidendi
An order that merely postpones the decision on preliminary issues to the final hearing does not finally determine any right or obligation of the parties and is therefore an interlocutory order. Such an order does not amount to a 'case decided' under Section 115 CPC, and revision is not maintainable.
Judgment Excerpts
The question that arises for consideration of the Court in this case is whether revision is maintainable against an order of the trial court postponing, decision on the issue of the maintainability of the suit and on the question of bar of limitation, to the trial of the suit.
The trial court by the impugned order dated 27th March, 2008 rejected the application on the ground that the first contention as regards maintainability of the suit was already considered by the court in its order on Exh.6 and that in the facts and circumstances of the case, the question of bar of limitation is a mixed question of law and facts and hence, required to be postponed to the final hearing of the suit.
Procedural History
Respondent filed Regular Civil Suit No. 70 of 2006 for specific performance and mandatory injunction. Applicant filed application Exh.6 raising preliminary objection on maintainability, disposed on 11-10-2007 postponing decision. Applicant then filed application Exh.20 under Order VII Rule 11 CPC on 31-12-2007, which was rejected on 27-03-2008. Applicant filed Civil Revision Application No. 36 of 2008 in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115, Order VII Rule 11
- Bombay Public Trusts Act, 1950: Section 36, Section 50, Section 51
- Limitation Act, 1963:
