Bombay High Court
MAHESH BRAHMADATTA TIWARIversusMUNICIPAL CORPORATION OF GR. MUMBAI AND ANR
- Decided
- Disposal
- Disposed Off
Holding
The High Court held that the trial court, not the appellate court, must decide the applicability of res judicata and the maintainability of the suit, and therefore the order declining to delete the issues stands.
Summary
Mahesh Brahmadatta Tiwari filed a writ petition challenging an order of the City Civil Court that refused to delete issues framed on 2 April 2026 on the grounds of res judicata and maintainability. The petitioner contended that neither the doctrine of res judicata nor Order XXII Rule 9 of the CPC applied to the facts. The High Court observed that the questions of res judicata and maintainability must be decided by the trial court after a full appraisal of pleadings, prior judgments and material on record. It held that at the appellate stage the court cannot delete the issues without delving into merits. Consequently, the writ petition was dismissed, but the matters were expressly left open for determination by the trial court. The decision underscores the limited jurisdiction of appellate courts to interfere with issue framing before trial.
Issues considered
- Whether the issues framed in the suit should be deleted on the ground of res judicata
- Whether the suit is maintainable under Order XXII Rule 9 of the Civil Procedure Code, 1908
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XXII Rule 9, Section 11
Subjects
- res judicata
- maintainability
- Civil Procedure Code
- Order XXII Rule 9
- trial court jurisdiction
- writ petition
- appellate jurisdiction
Judgment
41 WP-11793-26.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11793 OF 2026
Mahesh Brahmadatta Tiwari ..Petitioner
Versus
Municipal Corporation of Greater Mumbai
& anr. …Respondents
Mr. Siddhesh Pilankar, for the Petitioner.
Mr. D R Kawale, for the Respondent No.1 - BMC.
CORAM : N. J. JAMADAR, J.
DATE : 08th September 2026
P.C.:
1. Heard the learned Counsel for the petitioner.
2. The challenge in this petition is to an order passed by the
learned Judge, City Civil Court whereby the learned Judge City
SAINATH
Civil Court has declined to delete the issues framed on 02 nd
SANJAY
BODKHE
April, 2026 on the point of bar of res judicata and the
Digitally signed
by SAINATH
SANJAY BODKHE
Date: 2026.09.11
21:47:55 +0530 maintainability of the suit.
3. Mr. Pilankar, the learned Counsel for the petitioner,
submitted that, neither the bar of res judicata nor the
provisions contained in Order XXII Rule 9 of the Civil Procedure
Code, 1908, are attracted to the facts of the case at hand.
SAINATH, PA 1/2
41 WP-11793-26.DOC
4. Indisputably, L.C. Suit No. 5399 oof 1997 was instituted
by the Plaintiff and a jdugment has been rendered therein on
merits. Likewise, RAE & R Suit No. 392 of 1991 was dismissed
by the Court of Small Causes and Appeal No. 125 of 2001
thereagainst was also dismissed.
5. The questions of the instant suit being barred by res
judicata and the maintainability of the suit are to be decided by
the trial Court after appraisal of pleadings, issues, judgments in
the previous proceedings and the material on record. At this
stage, the issues cannot be deleted by delving into the merits of
the applicability or otherwise of the provisions contained in
Section 11 and Order XXII Rule 9 of the Code, 1908.
6. The Writ Petition stands dismissed.
7. However, all the questions are expressly kept open for
adjudication before the trial Court.
[N. J. JAMADAR, J.]
SAINATH, PA 2/2
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