MADHURI PRABHAKAR PATOLE Vs. ARUNA SATISHCHANDRA GAIKWAD

JUDGEMENT

(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.

(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. Ors. 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 , has taken the view that Section 9a of the Code, as applicable to State of Maharashtra, stands repealed by Section 32 of the Code of Civil Procedure (Amendment) Act, 1999 and also by Section 16 of the Code of Civil procedure (Amendment) Act of 2002.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 vs. 107 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reason, by virtue of Section 32 of the Amending Act of 1999 and Section 16 of the Amending Act of 2002, the same stood repealed.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 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brought into force by State Act are consistent with the code as amended by the Central Act of 1976 would stand repealed.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.

(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. vs. State of Uttar Pradesh and 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 and Anr. reported 431 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 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. "