FORESHORE CO-OP.HNG.SOCIETY LTD. Vs. PRAVEEN D DESAI (D) THR.LRS. & ORS.
Code Of Civil Procedure, 1908 (CPC)
Section 2 - Definitions- In this Act, unless there is anything repugnant in the subject or context,-
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 7732 of 2011, Judgment Date: Apr 08, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7732 of 2011
Foreshore Co-operative Housing Society Limited ..Appellant(s)
versus
Praveen D.Desai (Dead) thr. Lrs. and others ..Respondent(s)
with
Civil Appeal No. 5514 of 2012
Razia Amirali Shroff and others ......Appellant(s)
versus
M/s Nishuvi Corporation and others ......Respondent(s)
Civil Appeal No. 5515 of 2012
Razia Amirali Shroff and others ......Appellant(s)
versus
M/s Nishuvi Corporation and others ......Respondent(s)
Civil Appeal No(s). 3396 of 2015
(Arising out of SLP(C) No.24880 of 2012)
Nusli Neville Wadia .....Appellant(s)
versus
Ferani Hotels (Pvt.) Ltd. and others ..Respondent(s)
Civil Appeal No(s).3397 of 2015
(Arising out of SLP (C) No.2989 of 2012)
Punam Co-operative Housing Society .....Appellant(s)
versus
Pratap Issardas Bhatia and others ..Respondent(s)
Civil Appeal No(s).3393-95 of 2015
(Arising out of SLP (C) Nos.16373-16375 of 2013)
Rama Vijay Kumar Oberoi thr. GPH ...Appellant(s)
versus
Sunita Sudam Ranaware etc. ..Respondent(s)
J U D G M E N T
M. Y. EQBAL, J.
Leave granted.
2. In these appeals question has been raised about the ambit and scope
of Section 9A CPC as inserted by the Code of Civil Procedure (Maharashtra
Amendment) Act 1977 vis--vis the provision of Order XIV Rule 2 of the Code
of Civil Procedure. Before adverting to the legal question, it would be
proper to mention the nature of the orders passed by the Bombay High Court
in these appeals.
3. In Civil Appeal No. 7732 of 2011 (Foreshore Co-operative Housing
Society Limited vs. Praveen D. Desai (Dead) thr. Lrs. and others) the
Division Bench of the Bombay High Court upheld the order of the learned
Single Judge dismissing the appellant's suit on the ground that the suit
was barred by limitation. In Civil Appeal No.5514 of 2012, the appellants
are aggrieved by the impugned Order dated 15.3.2012, whereby the Division
Bench refused to interfere with order dated 24.1.2011 passed by the learned
Single Judge in Notice of Motion No.3616 of 2010 in Suit No.2901 of 2010.
The Notice of Motion was taken out by the plaintiffs seeking certain
interim reliefs pending hearing of the suit. The learned Single Judge by
the said order directed the defendants to file reply to the Notice of
Motion and also directed that the Notice of Motion itself be placed for
final hearing. Grievance of the plaintiffs before the Division Bench was
that the learned Single Judge has declined to pass any ad-interim order in
favour of the plaintiffs-appellants without giving any reason for doing so.
The Division Bench noticed that the defendant-respondents had raised
objection to the maintainability of the suit itself as also on the question
whether the suit is filed within the period of limitation. In Civil Appeal
No.5515 of 2012, the appellants are aggrieved by the order passed by the
learned Single Judge whereby the prayer for grant of ad-interim relief was
declined pending hearing on the preliminary issue raised by the defendants
under Section 9A, CPC, till the jurisdiction of the court to entertain the
suit is decided. The Division Bench in the matter of Nusli Neville Wadia
(Civil Appeal arising out of SLP(C) No.24880/2012) set aside the judgment
of the learned Single Judge and directed inter alia that the issue "Whether
the claim of the Plaintiff in the suit is barred by limitation" be raised
under Section 9A and tried as a preliminary issue. Whereas while dealing
with the appeal against the order of learned Single Judge framing a
preliminary issue under Section 9A with regard to limitation and decided to
try it as preliminary issue, the Division Bench in the matter of Punam Co-
operative Housing Society (Civil Appeal arising out of SLP(C) No.2989/2012
) upheld decision of the Single Judge. In the matter of Sou. Rama Vijay
Kumar Oberoi (Civil Appeal arising out of SLP(C)Nos.16373-16375/2013), the
defendant raised an objection that the suit was barred by limitation, the
trial court held that the issue of limitation being a mixed question of
fact and law could not be framed as a preliminary issue under Section 9A,
CPC. In appeal, learned Single Judge of the High Court in the impugned
order directed the trial court to frame a preliminary issue under Section
9A as to whether the suit was barred by limitation.
4. Since the question of law in all these appeals is similar, we would
like to narrate the factual matrix of the case pertaining to Civil Appeal
No.7732 of 2011 (Foreshore Co-operative Housing Society Ltd.) which relates
to the rights enjoyed by the parties therein over the suit property. The
Appellant is a co-operative housing society consisting of owners of various
flats in the building 'Advent' which exists on the suit property. The
Appellant filed Suit No.2939/1999 for declaring that Respondent Nos.1-6 and
8 have no rights whatsoever over the suit property and that they were not
entitled to carry out construction of the building by name of 'Divya
Prabha' within the suit property and for permanently restraining them from
doing so. The Appellant also prayed for declaring the revalidation of the
I.O.D. (Intimation of Disapproval) and commencement certificate by
Respondent No. 7 - Municipal Corporation in 1998, 2004 and 2005 in favour
of Respondent Nos. 1-6 and 8 to carry out construction of the building by
name of 'Divya Prabha' in the suit property to be illegal.
5. The suit property was originally leased to the Golwals. In 1958, the
Golwals entered into an agreement dated 17.03.1958 granting development
rights over a portion of the suit property to Respondent No.1 and also
executed a Power of Attorney in his favour. Respondent No. 1 in turn
transferred these rights in favour of his company-Respondent No. 2 vide
agreement dated 23.10.1959. Respondent Nos. 1 and 2 constructed the
building 'Advent' whose flat owners are the members of the Appellant
Society. The Municipal Corporation granted I. O. D. and commencement
certificate to Respondent No.1 in 1966 for constructing a building by the
name of 'Divya Prabha' in the suit property. In 1968, the Municipal
Corporation issued notices for stopping the construction of 'Divya Prabha'
on account of irregularities therein. Respondent No. 1 filed a suit
challenging these notices, however after the plaint was returned for
presentation before the proper court, the same was not pursued.
6. In 1968-69, disputes arose between the Golwals and Respondent Nos. 1
and 2 in relation to the land development agreement and the Power of
Attorney executed in favour of Respondent No. 1 was revoked. The Golwals
then assigned their entire leasehold interest in favour of the Appellant
society vide agreement dated 25.03.1969 and the Appellant was confirmed as
the lawful assignee by the Municipal Corporation.
7. The Appellant pleaded that in 1987, Respondent No.3 entered into the
suit property and began carrying out construction of 'Divya Prabha' on the
basis of an agreement purported to have been executed by Respondent Nos.1
and 2 in his favour in 1980 and on the basis of the agreement and power of
attorney purported to have been executed in his favour by Golwala in 1984
and 1986 respectively. The Corporation is said to have issued a notice in
1987 to Respondent No. 3 to stop the construction and a suit challenging
the same was filed by Respondent No. 3. The Appellant further pleaded that
Respondent Nos.1-6 had executed a deed of assignment dated 14.10.1994 in
favour of Respondent No. 8 selling the suit property and the building
'Divya Prabha' to the latter.
8. The Appellant filed Suit No. 6734/1994 in October, 1994 before the
City Civil Court for declaring that Respondent Nos. 1-6 and 8 have no
rights over the suit property, that they were not entitled to carry out
construction within the suit property and for declaring that the
revalidations of I. O. D. and the commencement certificate were illegal. On
28.06.1996, the validity of the I. O. D. and the commencement certificate
of 1966 were extended till 19.06.1997 and the suit was amended to challenge
the same. When the validity of the I.O.D. and commencement certificate
expired, learned Single Judge of the High Court permitted Respondent Nos. 1-
6 and 8 to apply again for revalidation and directed them to communicate
any such order to the Appellant. Respondent No. 8 was alleged to have
forcibly entered into the suit property on various occasions in 1998 and
begun construction of 'Divya Prabha' without informing the Appellant of any
grant of permission whereupon the Appellant filed a suit for injunction.
9. Revalidation certificates dated 18.09.1998 and 05.10.1998 were issued
in relation to the I. O. D. and the commencement certificate, and the
Appellant amended the plaint to challenge the same. However, by an order
dated 16.04.1999, the plaint in Suit No. 6734/1994 was returned for
presentation before the proper court as it was improperly valued and
exceeded the jurisdiction of the City Civil Court. The Appellants filed an
appeal against the said order, but afterwards withdrew it. In 1999,
Appellant then filed a suit being Suit No. 2939/1999 before the Single
Judge of the High Court, which was amended to challenge the revalidation
certificates granted on 08.03.2004, 09.03.2004, 08.07.2004 and on
06.08.2005 during the pendency of the suit. This suit was also permitted
to be amended in 2005 for incorporating pleadings to the effect that Suit
No. 6734/1994 was filed and prosecuted before the City Civil Court in good
faith and with due diligence.
10. The Appellant filed Notice of Motion for grant of injunction and
Respondent No. 8 raised preliminary objections regarding the
maintainability of the suit. Learned Single Judge noted that Section 9A of
the Code of Civil Procedure provides for hearing an objection regarding the
jurisdiction of the court to entertain a suit as a preliminary issue when
such objection is raised in an application for grant of interim relief. In
view of the same, learned Single Judge framed a preliminary issue as to
whether Suit No.2939/1994 was barred by limitation or not. Learned Single
Judge held that though the matter in issue in Suit No.6734/1994 and Suit
No.2939/1999 was the same, the Appellant was not entitled to the benefit
under Section 14 of the Limitation Act as it had failed to prove that the
earlier suit was pursued with due diligence and good faith. Learned Single
Judge noted that the plaint initially did not have any pleadings for
availing the benefit under Section 14 of the Limitation Act and that the
same was incorporated by way of an amendment in 2005 after the reply to the
notice of motion was filed and preliminary issue regarding jurisdiction was
framed. The Appellant was required to prove not only the diligent
prosecution of Suit No. 6734/1994 but also its diligent institution and the
Single Judge held that the Appellant had failed to do so having been unable
to show that the said suit was incorrectly valued despite due care and
caution. The Appellant was also held to have not cited any particulars or
evidence for having pursued the earlier suit in good faith. Learned Single
Judge dismissed the suit as barred by limitation vide judgment dated
20.01.2006.
11. Aggrieved by the judgment of the Single Judge, Appellant filed an
appeal before the Division Bench of the High Court. The Appellant pleaded
that the bar of limitation was not a bar on the jurisdiction of the court
and that the question of limitation was a question of law and fact which
had to be decided along with the other issues in the suit. The Appellant
also contended that it was entitled to the benefit under Section 14 of the
Limitation Act, 1963 and that even assuming that it was not so entitled,
the suit would still be within the period of limitation as the cause of
action arose when the I. O. D. and the commencement certificate were
revalidated on 18.09.1998 and 05.10.1998 and when the Respondents
trespassed into the suit property on various occasions in 1998.
12. After hearing learned counsel on either side, the Division Bench held
that the moment the issue of jurisdiction was raised under Section 9A of
Code of Civil Procedure, such issue had to be decided first as the same was
mandated under Section 9A and as valuable time could be saved in case it is
found that the court does not have jurisdiction. The term "jurisdiction"
under Section 9A was held to have been used in a wider sense and subject to
any statutory bar on the maintainability of a suit. The Division Bench held
that the court was bound to dismiss a suit barred by limitation as it had
no jurisdiction to entertain the same. The plea of limitation was held to
be a question of law which related to the jurisdiction of the court and the
court was held to be precluded from adjudicating the matter on merits when
the suit was barred by limitation. The Division Bench went on to hold
that the suit herein, which was filed on 18.05.1999, was barred by
limitation as the cause of action arose in April, 1994. The view of the
Single Judge that the plaint initially did not have any pleadings for
availing the benefit under Section 14 of the Limitation Act and that the
same was incorporated by way of an amendment in 2005 was upheld. The
Division Bench held that the Appellant was not entitled to the benefit
under Section 14 of the Limitation Act as there was no proof of the earlier
suit having been prosecuted with due diligence and good faith and dismissed
the appeal vide the impugned judgment.
13. Hence, the present appeals by special leave by the appellants.
14. We have heard Mr. F.S. Nariman, Mr. P. Chidambaram, Mr. Shekhar
Naphade, Mr. Jaideep Gupta, learned senior advocates appearing on behalf of
the appellants. We have also heard Mr. Kapil Sibal, Mr. Salman Khurshid,
Dr. A.M. Singhvi, Mr. Ashwini Kumar, Mr. A. Sharan, Mr. Shyam Divan and
other learned senior counsel appearing for the respondents.
15. At the very outset, Mr. Nariman drew our attention to the aim and
object of bringing Section 9A by Maharashtra Amendment in the Code of Civil
Procedure. According to the learned senior counsel, Maharashtra
Legislature used the word 'jurisdiction' in all matters concerning
jurisdiction, i.e. the pecuniary or territorial, notwithstanding that in
Order XIV Rule 2 preliminary issue is to be raised only when it is of law.
It cannot be raised when the issue of jurisdiction is a mixed issue of law
and fact. According to Mr. Nariman, 'jurisidction' used in Section 9A is
confined to its textual interpretation i.e., any plea as to the
jurisdiction of the court with reference to the subject matter, territorial
or pecuniary jurisdiction, which ousts the jurisdiction of the court. Mr.
Nariman submitted that initially Section 9A was enacted by Maharashtra
Amendment Act of 1969 because of judgments rendered by the Bombay High
Court. It was only for the purpose of deciding objections as to the
jurisdiction either territorial or pecuniary, Section 9A was inserted.
Learned senior counsel submitted that since the date of enactment of
Section 9A in 1970 the questions of territorial and pecuniary jurisdiction
have been decided. Mr. Nariman then referring the decision of this Court
in the case of Mathai vs. Varkey Varkey, (1964) 1 SCR 495, submitted that a
court having jurisdiction over the subject matter of the suit and over the
parties thereto, though bound to decide right may decide wrong, and that
even though it decided wrong it would not be doing something which it had
no jurisdiction to do. In other words, courts having jurisdiction to decide
right or to decide wrong and even though decide wrong, the decree rendered
by them cannot be treated as nullity. The gist of the argument of Mr.
Nariman and other counsel is that a preliminary objection as to
jurisdiction under Section 9A would not include an objection that it is
barred by limitation. Learned counsel put heavy reliance on the decision
of this Court in Ramesh B. Desai and Ors. vs. Bipin Vadilal Mehta and
Ors., (2006) 5 SCC 638.
16. Per contra, Mr. Kapil Sibal, learned senior counsel appearing for the
respondents submitted that the application of Section 9A comes at the very
initial stage of the suit whereas the provision of Order XIV Rule 2 can be
invoked at the time of framing of issues. Learned counsel submitted that
no prejudice would be caused inasmuch as the Court may in its discretion
refuse to hear the preliminary issue. According to the learned counsel,
question of limitation concerns the jurisdiction of the Court as the
limitation goes to the root of jurisdiction. Mr. Sibal, relied upon a
three Judges Bench decision of this Court in Official Trustee W.B. vs.
Sachindra (1969) SC 823, National Thermal Power Corporation Ltd. vs.
Siemens Atkeingesellschaft, (2007) 4 SCC 451.
17. Dr. A.M. Singhvi submitted that insertion of Section 9A by
Maharashtra Amendment is a legislative policy decision of the State to
entertain objection to jurisdiction at the initial stage and to decide it
as preliminary issue. According to the learned counsel, the question of
limitation is the question of jurisdiction and it has to be decided as a
preliminary issue. Learned counsel put reliance on ITW Signode India Ltd
vs. Collector of Central Excise, (2004) 3 SCC 48; Manick Chandra Nandy
vs. Debdas Nandy and Others, (1986) 1 SCC 512; Kamlesh Babu and Others
vs. Lajpat Rai Sharma and Others, (2008) 12 SCC 577.
18. We have also heard Mr. Salman Khurshid and Mr. Ashwani Kumar, learned
senior advocates appearing for the respondents. The submissions of learned
counsel are as under:-
The juridical and jurisprudential meaning of the term "jurisdiction"
as used inter-alia in Section 9A of the CPC (as amended in 1977), and by
virtue of Order XIV Rule 2 (b) initially interpreted in a catena of
judgments, cannot be limited in its sweep to exclude a case where the
suit/any part of the alleged cause of action is barred by limitation.
Section 9A provides a self contained scheme and given its non-obstante
clause, must prevail.
A plea pertaining to the bar of limitation has been consistently held
by the Supreme Court and followed by High Courts, as one giving rise to the
issue of jurisdiction. An issue of limitation refers to a statutory bar to
the exercise of jurisdiction.
19. Learned counsel further submitted that upon a harmonious construction
of the two provisions and considering the consistent judicial dicta whereby
an issue of limitation is treated as a jurisdictional issue, Clauses (a)
and (b) of Rule 2(2), Order XIV of the CPC ought to be read as
jurisdictional issues although arising under different pleas.
20. Learned counsel further submitted that even otherwise the non-
obstante clause inserted by the Maharashtra Amendment of 1977 in Section 9A
of CPC and the express mandate of Section which is a self-contained scheme
and a later expression of legislative intent, the policy and intention of
the law is to decide an issue relating to jurisdiction of the court, on
whatever grounds raised, as a preliminary issue, notwithstanding of any
other provision in the CPC. Such an issue is to be decided at the hearing
under Section 9A when the court is not precluded from considering the facts
either on prima facie basis or otherwise.
21. Learned counsel also referred a catena of decisions for the
proposition that question of limitation concerns the jurisdiction of court
and such issue goes to the root of jurisdiction and may oust the
jurisdiction of the court.
22. Similar argument have been advanced by Mr. Shyam Divan and other
learned senior counsel appearing for the respondents.
23. Section 9 of the Code of Civil Procedure confers power and
jurisdiction to Courts to try all suits of civil nature excepting suits of
which their cognizance is either expressly or impliedly barred. For better
clarification, Explanations (I) and (II) have been added. Section 9 with
explanations reads as under:-
"9. Courts to try all civil suits unless barred:- The Courts shall (subject
to the provisions herein contained) have jurisdiction to try all Suits of a
civil nature excepting suits of which their cognizance is either expressly
or impliedly barred.
Explanation I.-As suit in which the right to property or to an office is
contested is a suit of a civil nature, notwithstanding that such right may
depend entirely on the decision of questions as to religious rites or
ceremonies.
Explanation II-For the purposes of this section, it is immaterial whether
or not any fees are attached to the office referred to in Explanation I or
whether or not such office is attached to a particular place."
24. A bare reading of the aforesaid provision would show that all
suits of civil nature can be entertained by civil Courts. However,
Explanation (I) clarifies as to what a suit of a civil nature is.
25. Immediately, after Section 9, Section 9A was inserted by Code
of Civil Procedure (Maharashtra Amendment) Act, 1970. Section 9A as
inserted in the Code of Civil Procedure (Maharashtra Amendment) Act of 1970
reads as follows:-
"9A. Where by an application for interim relief is sought or is sought to
be set aside in any suit and objection to jurisdiction is taken, such issue
to be decided by the Court as preliminary issue at hearing of the
application.
If, at the hearing of any application for granting or setting aside an
order granting any interim relief, whether by way of injunction,
appointment of a receiver or otherwise, made in any suit, an objection for
the jurisdiction of the Court to entertain such suit is taken by any of the
parties to the suit, the Court shall proceed to determine at the hearing of
such application the issue as to the jurisdiction as a preliminary issue
before granting or setting aside the order granting the interim relief.
Any such application shall be heard and disposed of by the Court as
expeditiously as possible and shall not in any case be adjourned to the
hearing of the suit.
(2) Notwithstanding anything contained in sub-section (1), at the hearing
of any such application, the Court may grant such interim relief as it may
consider necessary, pending determination by it of the preliminary issue as
to the jurisdiction."
26. In the year 1976, the Code of Civil Procedure 1908 was
extensively amended by the Code of Civil Procedure (Amendment) Act, 1976.
Section 97 of the Amendment Act of 1976 inter alia provided that any
amendment made in the Code by the State Legislature before commencement of
the Amendment Act of 1976 shall, except insofar as they are consistent with
the Code as amended by the Amendment Act, 1976 shall stand repealed. As a
result, those amendments made in the CPC by the State Legislature which
were inconsistent with the amendments brought in 1976 stood repealed.
27. After the aforesaid Section 9A of Maharashtra Amendment stood
repealed, the State Legislature felt that certain amendments made by the
Maharashtra State Amendment Act were useful and required to be continued.
Hence, the State Legislature of Maharashtra re-enacted Section 9A with the
assent of the President of India as required under Article 254(2) of the
Constitution of India, so that the same may continue to prevail. Hence, by
Section 3 of Maharashtra (Amendment) Act of 1976, it again inserted Section
9A in the Code of Civil Procedure. Section 9A which has been inserted in
the 1977 by the State Legislature reads as under:-
"9-A. Where at the hearing of application relating to interim relief in a
suit, objection to jurisdiction is taken, such issue to be decided by the
Court as a preliminary issue.- (1) Notwithstanding anything contained in
this Code or any other law for the time being in force, if, at the hearing
of any application for granting or setting aside an order granting any
interim relief, whether by way of stay, injunction, appointment of a
receiver or otherwise, made in any suit, an objection to the jurisdiction
of the Court to entertain such a suit is taken by any of the parties to the
suit, the Court shall proceed to determine at the hearing of such
application the issue as to the jurisdiction as a preliminary issue before
granting or setting aside the order granting the interim relief. Any such
application shall be heard and disposed of by the Court as expeditiously as
possible and shall not in any case he adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in Sub-section (1), at the hearing
of any such application, the Court may grant such interim relief as it may
consider necessary, pending determination by it of the preliminary issue as
to be jurisdiction."
28. As noticed above, Section 9A was for the first time inserted by
Amendment Act of 1970. The statement of objects and reasons for such
amendment is quoted hereunder:-
"The effect of the judgment of the High Court in Institute Indo-Portuguese
vs. Borges (1958) 60 Bom. L.R. 660 is that the Bombay City Civil Court for
the purposes of granting interim relief cannot or need not go into the
question of jurisdiction. Sometimes declaratory suits are filed in the
City Court without a valid notice under section 80 of the Code of Civil
Procedure, 1908. Relying upon another judgment of the High Court recorded
on the 7th September, 1961 in Appeal No.191 of 1960, it has been the
practice of the City Court to adjourn a notice of motion for injunction in
a suit filed without such valid notice, which gives time to the plaintiff
to give the notice. After expiry of the period of notice, the plaintiff is
allowed to withdraw the suit with liberty to file a fresh one. In the
intervening period, the Court grants an ad interim injunction and continues
the same. The practice of granting injunctions, without going into the
question of jurisdiction even though raised, has led to grave abuse. It is
therefore, proposed to provide that if a question of jurisdiction is
raised at the hearing of any application for granting or setting aside an
order granting an interim relief, the Court shall determine that question
first."
29. For the purpose of re-inserting Section 9A in 1977, after
Section 9A stood repealed by 1976 CPC Amendment Act, the statement of
objects and reasons of the relevant portion of said Bill is extracted
hereinbelow:-
"2. The Code has now been extensively amended by the Code of Civil
Procedure (Amendment) Act, 1976 (CIV of 1976) enacted by Parliament.
Section 97 of the Amendment Act provides inter alia that any amendment made
in the Code by a State Legislature before the commencement of the Act shall
except in so far as they are consistent with the Code as amended by the
Amendment Act, stand repealed. Unless there is an authoritative judicial
pronouncement, it is difficult to say which of the State Amendments are
inconsistent with the Code as amended by the Central Amendment Act of 1976
and which consequently stand repealed. All the amendments made in the Code
by the State Acts, except the amendment made in the proviso to section
60(1) by the State Act of 1948, have been found to be useful and are
required to be continued. The amendment made by the State Act of 1948 is
no more required because it is now covered by the amendment made in clause
(g) of the said proviso by the Central Amendment Act of 1976. But to leave
no room for any doubt whether the remaining State amendments continue to be
in force or stand repealed, it is proposed that the old amendments should
be repealed formally and in their places similar amendments may be re-
enacted, with the assent of the president under article 254(2) of the
Constitution, so that they may continue to prevail and be available in this
State as before. The Bill is intended to achieve these objects.
3. The following notes on clauses explain the purposes of these clauses:-
Preamble - it gives the background and main reasons for the proposed
legislation.
Clauses 2 and 3-Clause 2 formally repeals the State Act of 1970 and the new
section 9A inserted by it, to make way for re-enacting by clause 3 of the
same section in a slightly revised form."
30. The question that arises for consideration before this Court is as to
whether the phrase "an objection to the jurisdiction of the Court to
entertain such a suit" as used in Section 9A of the Maharashtra Manual
would include an objection with regard to limitation. In other words,
whether an issue relating to a bar to the suit created by law of limitation
can be tried as preliminary issue under Section 9A of the Code.
31. For better appreciation of the object and interpretation of Section
9A, it would be proper to have a comparison with the provision contained in
Order XIV Rule 2 of the Code of Civil Procedure. Rule 2 of Order XIV reads
as under:-
"2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a
case may be disposed of on a preliminary issue, the court shall, subject to
the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the
court is of opinion that the case or any part thereof may be disposed of on
an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the court, or
(b) a bar to the suit created by any law for the time being in force, and
for that purpose may, if it thinks fit, postpone the settlement of the
other issues until after that issue has been determined, and may deal with
the suit in accordance with the decision on that issue."
32. Order XIV Rule 2 of the Code of Civil Procedure, confers power upon
the Court to pronounce judgment on all the issues. But there is an
exception to that general Rule i.e., where issues both of law and fact
arise in the same suit and the Court is of the opinion that the case or any
part thereof may be disposed of on the issue of law, it may try that issue
first if that issue relates to the jurisdiction of the Court or a bar to
the suit created by any law.
33. Order XIV Rule 2 of the Code of Civil Procedure as it existed earlier
reads as under:-
"Issues of law and of fact:
Whether issues both of law and of fact arise in the same suit, and the
Court is of opinion that the case or any part thereof may be "disposed of
on the issues of law only, it shall try those issues first and for that
purpose may, if it thinks fit, postpone the settlement of the issues of
fact until after the issues of law have been determined".
34. A comparative reading of the said provision as it existed earlier to
the amendment and the one after amendment would clearly indicate that the
consideration of an issue and its disposal as preliminary issue has now
been made permissible only in limited cases. In the un-amended Code, the
categorization was only between issues of law and of fact and it was
mandatory for the Court to try the issues of law in the first instance and
to postpone the settlement of issues of fact until after the issues of law
had been determined. On the other hand, in the amended provision there is a
mandate to the Court that notwithstanding that a case may be disposed of on
a preliminary issue, the Court has to pronounce judgment on all the issues.
The only exception to this is contained in sub-rule (2). This sub-rule
relaxes the mandate to a limited extent by conferring discretion upon the
Court that if the Court is of opinion that the case or any part thereof may
be disposed of "on an issue of law only", it may try that issue first. The
exercise of this discretion is further limited to the contingency that the
issue to be so tried must relate to the jurisdiction of the Court or a bar
to the suit created by a law in force.
35. The moot question, therefore, that falls for consideration is as to
whether courts shall be guided by the provisions of Order XIV Rule 2 of the
Code of Civil Procedure or Section 9A of the Code as amended by Maharashtra
Amendment Act, in the matter of deciding the objection with regard to
jurisdiction of the court which concerns the bar of limitation as a
preliminary issue.
36. Indisputably, the subject of Civil Procedure, including all matters
included in the Code of Civil Procedure, is placed under Entry 13 in the
Concurrent List of the VII Schedule appended to the Constitution of India.
After Section 9A of Maharashtra Amendment Act stood repealed by Section 97
of the CPC Amendment Act of 1976 being inconsistent with the Code, the
State Legislature of Maharashtra felt that certain amendments made by the
earlier State Amendment Acts were useful and required to be continued. To
leave no room for confusion as to whether the State Amendments continued to
be in force or repealed, Section 9A was again re-enacted with the assent of
the President of India under Article 254 (2) of the Constitution of India.
37. As noticed above, Section 9A of the Maharashtra Amendment Act is a
complete departure from the procedure provided under Order XIV Rule 2 of
the Code of Civil Procedure. Notwithstanding the inconsistency contained
in the Act of the Parliament viz., the Code of Civil Procedure and the
provisions contained in Section 9A of the State Act, having regard to the
fact that the assent of the President was received, the provisions of the
said Section has to be complied with and can be held to be a valid
legislation.
38. In the case of Meher Singh vs. Deepak Sawhny, reported in 1998 (3)
MhLJ 940 = 1999 (1) Bom CR 107, the question that referred to the Division
Bench for its consideration was whether while deciding the preliminary
issue of jurisdiction as contemplated under Section 9-A of the Code Civil
Procedure (Maharashtra Amendment) Act, 1977 the parties are required to be
given opportunity to lead evidence?. The Division Bench noticed that
Section 9-A was added to the Civil Procedure Code by Code of Civil
Procedure (Maharashtra Amendment) Act, 1977. As per the amended provision
if in a suit, an objection to the jurisdiction of the Court to entertain
such suit is taken by any of the parties to the suit, the Court shall
proceed to determine at the hearing of such application the issue as to the
jurisdiction as a preliminary issue before granting or setting aside the
order granting the interim relief. Before the learned Single Judge, it was
contended that when the said issue is raised for determination, the Court
is required to permit the parties to lead evidence. The Division Bench
considered the amended provision as contained in Section 9-A vis-a-vis
Order XIV Rule 2 of the Code of Civil Procedure and observed:-
"13. In the result we hold that if Section 9-A is not added, then at
interim stage, the Court is not required to decide the issue of
jurisdiction finally and the Court by referring to the averments made in
the plaint, would ordinarily determine whether or not the Court has
jurisdiction to try the suit. However, it is apparent that section 9-A is
added with a specific object to see that objection with regard to
jurisdiction of the Court is decided as a preliminary issue. According to
the Legislature, the practice of granting injunctions without going into
the question of jurisdiction even though raised, has led to grave abuse.
Hence the said section is added to see that issue of jurisdiction is
decided as a preliminary issue notwithstanding anything contained in the
Civil Procedure Code, including Order XIV, Rule 2. Once the issue is to be
decided by raising it as a preliminary issue, it is required to be
determined after proper adjudication. Adjudication would require giving of
opportunity to the parties to lead evidence, if required."
39. From the statement of objects and reasons it is evident that the
practice followed in the City Civil Court in filing the suits against the
Government without giving notice under Section 80 of the CPC and after the
interim relief continued the plaintiff takes permission to withdraw the
suit and to file a fresh suit. As a matter of fact, the legislature
intended to stop this abuse of process by introducing Section 9A in the CPC
by Maharashtra amendment Act. By reason of such amendment the Court is now
required to decide the issue of jurisdiction at the time of granting the
relief or considering the application for vacating the interim relief.
40. From reading of the aims and object of the Bill whereby Section 9A
was inserted, the term 'jurisdiction' is used in a wider sense and is not
restricted to the conventional definition either pecuniary jurisdiction or
territorial jurisdiction as submitted by Mr. Nariman, learned senior
counsel appearing for the appellant.
41. The term 'jurisdiction' is a term of art; it is an expression used in
a variety of senses and draws colour from its context. Therefore, to
confine the term 'jurisdiction' to its conventional and narrow meaning
would be contrary to the well settled interpretation of the term. The
expression 'jurisdiction', as stated in Halsbury's Laws of England, Volume
10, paragraph 314, is as follows:
"314. Meaning of 'jurisdiction': By 'jurisdiction' is meant the authority
which a court has to decide matters that are litigated before it or to take
cognisance of matters presented in a formal way for its decision. The
limits of this authority are imposed by the statute, charter or commission
under which the court is constituted, and may be extended or restricted by
similar means.
If no restriction or limit is imposed the jurisdiction is said to be
unlimited. A limitation may be either as to the kind and nature of the
claims and matters of which the particular court has cognisance, or as to
the area over which the jurisdiction extends, or it may partake of both
these characteristics."
42. In American Jurisprudence, Volume 32A, paragraph 581, it is said that
"Jurisdiction is the authority to decide a given case one way or the other.
Without jurisdiction, a court cannot proceed at all in any case;
jurisdiction is the power to declare law, and when it ceases to exist, the
only function remaining to a court is that of announcing the fact and
dismissing the cause."
Further, in paragraph 588, it is said that lack of jurisdiction cannot be
waived, consented to, or overcome by agreement of the parties.
43. It is well settled that essentially the jurisdiction is an authority
to decide a given case one way or the other. Further, even though no party
has raised objection with regard to jurisdiction of the court, the court
has power to determine its own jurisdiction. In other words, in a case
where the Court has no jurisdiction; it cannot confer upon it by consent or
waiver of the parties.
44. Section 3 of the Limitation Act, 1963 clearly provides that every
suit instituted, appeal preferred and application made after the prescribed
period of limitation, subject to the provisions contained in Sections 4 to
24, shall be dismissed although the limitation has not been set up as a
defence.
45. A Constitution Bench of five Judges of this Court in the case
of Pandurang Dhondi Chougule vs. Maruti Hari Jadhav, 1966 SC 153, while
dealing with the question of jurisdiction, observed that a plea of
limitation or plea of res judicata is a plea of law which concerns the
jurisdiction of the court which tries the proceeding. The Bench held:-
"10. The provisions of Section 115 of the Code have been examined by
judicial decisions on several occasions. While exercising its jurisdiction
under Section 115, it is not competent to the High Court to correct errors
of fact however gross they may, or even errors of law, unless the said
errors have relation to the jurisdiction of the court to try the dispute
itself. As clauses (a), (b) and (e) of Section 115 indicate, it is only in
cases where the subordinate court has exercised a jurisdiction not vested
in it by law, or has failed to exercise a jurisdiction so vested, or has
acted in the exercise of its jurisdiction illegally or with material
irregularity that the revisional jurisdiction of the High Court can be
properly invoked. It is conceivable that points of law may arise in
proceedings instituted before subordinate courts which are related to
questions of jurisdiction. It is well settled that a plea of limitation or
a plea of res judicata is a plea of law which concerns the jurisdiction of
the court which tries the proceedings. A finding on these pleas in favour
of the party raising them would oust the jurisdiction of the court, and so,
an erroneous decision on these pleas can be said to be concerned with
questions of jurisdiction which fall within the purview of Section 115 of
the Code. But an erroneous decision on a question of law reached by the
subordinate court which has no relation to questions of jurisdiction of
that court, cannot be corrected by the High Court under Section 115."
(Emphasis given)
46. In the case of Manick Chandra Nandy vs. Debdas Nandy, (1986) 1 SCC
512, this Court, while considering the the nature and scope of High Court's
revisional jurisdiction in a case where a plea was raised that the
application under Order IX Rule 13 was barred by limitation, held that a
plea of limitation concerns the jurisdiction of the court which tries a
proceeding for a finding on this plea in favour of the party raising it
would oust the jurisdiction of the court. In the case of National Thermal
Power Corpn. Ltd. vs. Siemens Atkeingesellschaft, 2007 (4) SCC 451, this
Court considering the similar question under the Arbitration and
Conciliation Act held as under:-
"17. In the larger sense, any refusal to go into the merits of a claim may
be in the realm of jurisdiction. Even the dismissal of the claim as barred
by limitation may in a sense touch on the jurisdiction of the court or
tribunal. When a claim is dismissed on the ground of it being barred by
limitation, it will be, in a sense, a case of the court or tribunal
refusing to exercise jurisdiction to go into the merits of the claim. In
Pandurang Dhoni Chougule v. Maruti Hari Jadhav this Court observed that:
(AIR p. 155, para 10)
"It is well settled that a plea of limitation or a plea of res judicata is
a plea of law which concerns the jurisdiction of the court which tries the
proceedings. A finding on these pleas in favour of the party raising them
would oust the jurisdiction of the court, and so, an erroneous decision on
these pleas can be said to be concerned with questions of jurisdiction
which fall within the purview of Section 115 of the Code."
47. In the case of Official Trustee vs. Sachindra Nath Chatterjee,
AIR 1969 SC 823, a three Judges Bench of this Court while deciding the
question of jurisdiction of the Court under the Trust Act observed:-
"15. From the above discussion it is clear that before a Court can be held
to have jurisdiction to decide a particular matter it must not only have
jurisdiction to try the suit brought but must also have the authority to
pass the orders sought for. It is not sufficient that it has some
jurisdiction in relation to the subject-matter of the suit. Its
jurisdiction must include the power to hear and decide the questions at
issue, the authority to hear and decide the particular controversy that has
arisen between the parties."
48. In the case of ITW Signode India Ltd. vs. CCE, (2004) 3 SCC 48, a
similar question came before a three Judges Bench of this Court under the
Central Excise Act, 1944, when this Court opined as under:-
"69. The question of limitation involves a question of jurisdiction. The
finding of fact on the question of jurisdiction would be a jurisdictional
fact. Such a jurisdictional question is to be determined having regard to
both fact and law involved therein. The Tribunal, in our opinion, committed
a manifest error in not determining the said question, particularly, when
in the absence of any finding of fact that such short-levy of excise duty
related to any positive act on the part of the appellant by way of fraud,
collusion, wilful misstatement or suppression of facts, the extended period
of limitation could not have been invoked and in that view of the matter no
show-cause notice in terms of Rule 10 could have been issued."
49. In the case of Kamlesh Babu vs. Lajpat Rai Sharma, (2008) 12
SCC 577, the matter came to this Court when the trial court dismissed the
suit on issues other than the issue of limitation. The Bench held:-
"23. The reasoning behind the said proposition is that certain questions
relating to the jurisdiction of a court, including limitation, goes to the
very root of the court's jurisdiction to entertain and decide a matter, as
otherwise, the decision rendered without jurisdiction will be a nullity.
However, we are not required to elaborate on the said proposition, inasmuch
as in the instant case such a plea had been raised and decided by the trial
court but was not reversed by the first appellate court or the High Court
while reversing the decision of the trial court on the issues framed in the
suit. We, therefore, have no hesitation in setting aside the judgment and
decree of the High Court and to remand the suit to the first appellate
court to decide the limited question as to whether the suit was barred by
limitation as found by the trial court. Needless to say, if the suit is
found to be so barred, the appeal is to be dismissed. If the suit is not
found to be time-barred, the decision of the first appellate court on the
other issues shall not be disturbed."
50. Mr. Shekhar Naphade, learned senior counsel appearing for the
respondent relied upon a recent decision of a Division Bench of this Court
in Civil Appeal No. 1085 of 2015 (Kamalakar Eknath Salunkhe vs. Baburav
Vishnu Javalkar & Ors.) where this Court while considering Section 9A of
the Maharashtra Amendments of CPC observed that the expression
'jurisdiction" in Section 9A is used in a narrow sense i.e. territorial and
pecuniary jurisdiction and not question of limitation. The Court observed:-
"17. The expression "jurisdiction" in Section 9A is used in a narrow sense,
that is, the Court's authority to entertain the suit at the threshold. The
limits of this authority are imposed by a statute, charter or commission.
If no restriction is imposed, the jurisdiction is said to be unlimited. The
question of jurisdiction, sensu stricto, has to be considered with
reference to the value, place and nature of the subject matter. The
classification into territorial jurisdiction, pecuniary jurisdiction and
jurisdiction over the subject-matter is of a fundamental character.
Undoubtedly, the jurisdiction of a Court may get restricted by a variety of
circumstances expressly mentioned in a statute, charter or commission. This
inherent jurisdiction of a Court depends upon the pecuniary and territorial
limits laid down by law and also on the subject-matter of the suit. While
the suit might be barred due to non-compliance of certain provisions of
law, it does not follow that the non-compliance with the said provisions is
a defect which takes away the inherent jurisdiction of the Court to try a
suit or pass a decree. The law of limitation operates on the bar on a party
to agitate a case before a Court in a suit, or other proceedings on which
the Court has inherent jurisdiction to entertain but by operation of the
law of limitation it would not warrant adjudication.
19. Thus, with the intention to put the aforesaid practice to rest, the
State Legislature introduced Section 9A by the amendment Act of 1969
requiring the Court to decide the issue of jurisdiction at the time of
granting or vacating the interim relief. In other words, the legislature
inserted section 9A to ensure that a suit which is not maintainable for
want of jurisdiction of the concerned Court, ought not be tried on merits
without first determining the question of maintainability of the suit as to
jurisdiction of the Court, approached by the plaintiff, as a preliminary
issue.
20. The provision contemplates that when an issue of jurisdiction is
raised, the said issue should be decided at first as expeditiously as
possible, and not be adjourned to a later date.
The primary reason is that if the Court comes to finding that it does not
have jurisdiction vested in it in law, then no further enquiry is needed
and saves a lot of valuable judicial time.
21. A perusal of the Statement of Object and Reasons of the Amendment Act
would clarify that Section 9A talks of maintainability only on the question
of inherent jurisdiction and does not contemplate issues of limitation.
Section 9A has been inserted in the Code to prevent the abuse of the Court
process where a plaintiff drags a defendant to the trial of the suit on
merits when the jurisdiction of the Court itself is doubtful.
22. In the instant case, the preliminary issue framed by the Trial Court is
with regard to the question of limitation. Such issue would not be an issue
on the jurisdiction of the Court and, therefore, in our considered opinion,
the Trial Court was not justified in framing the issue of limitation as a
preliminary issue by invoking its power under Section 9A of the Code. The
High Court has erred in not considering the statutory ambit of Section 9A
while approving the preliminary issue framed by the Trial Court and thus,
rejecting the writ petition filed by the appellant."
51. With great respect, we are of the view that the decision rendered by
the Division Bench in the case of Kamalakar Eknath Salunkhe vs. Baburav
Vishnu Javalkar & Ors. is contrary to the law settled by the Constitution
Bench and three Judges Bench of this Court, followed by other Division
Bench in Pandurang Dhondi Chougule vs. Maruti Hari Jadhav, AIR 1966 SC 153,
(Five Judges Bench) in Manick Chandra Nandy vs. Debdas Nandy, (1986) 1 SCC
512, National Thermal Power Corpn. Ltd. vs. Siemens Atkeingesellschaft,
(2007) 4 SCC 451, Official Trustee vs. Sachindra Nath Chatterjee AIR 1969
SC 823, ITW Signode India Ltd. vs. CCE, (2004) 3 SCC 48 and Kamlesh Babu
vs. Lajpat Rai Sharma, (2008) 12 SCC 577. The Constitution Bench decision
and other decisions given by larger Bench are binding on us. It appears
that those decisions have not been brought to the notice of the Division
Bench taking a contrary view.
52. Discussing the principle of binding precedents in the case of State
of U.P. vs. Synthetics and Chemicals Ltd. 1991(4) SCC 139, this Court in
paragraph 40 and 41 held as under:-
"40. 'Incuria' literally means 'carelessness'. In practice per incuriam
appears to mean per ignoratium. English courts have developed this
principle in relaxation of the rule of stare decisis. The 'quotable in law'
is avoided and ignored if it is rendered, 'in ignoratium of a statute or
other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.). Same has
been [pic]accepted, approved and adopted by this Court while interpreting
Article 141 of the Constitution which embodies the doctrine of precedents
as a matter of law. In Jaisri Sahu v. Rajdewan Dubey this Court while
pointing out the procedure to be followed when conflicting decisions are
placed before a bench extracted a passage from Halsbury's Laws of England
incorporating one of the exceptions when the decision of an appellate court
is not binding.
41. Does this principle extend and apply to a conclusion of law, which was
neither raised nor preceded by any consideration. In other words can such
conclusions be considered as declaration of law? Here again the English
courts and jurists have carved out an exception to the rule of precedents.
It has been explained as rule of sub-silentio. "A decision passes sub-
silentio, in the technical sense that has come to be attached to that
phrase, when the particular point of law involved in the decision is not
perceived by the court or present to its mind." (Salmond on Jurisprudence
12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith
Ltd. the Court did not feel bound by earlier decision as it was rendered
'without any argument, without reference to the crucial words of the rule
and without any citation of the authority'. It was approved by this Court
in Municipal Corporation of Delhi v. Gurnam Kaur. The bench held that,
'precedents sub-silentio and without argument are of no moment'. The courts
thus have taken recourse to this principle for relieving from injustice
perpetrated by unjust precedents. A decision which is not express and is
not founded on reasons nor it proceeds on consideration of issue cannot be
deemed to be a law declared to have a binding effect as is contemplated by
Article 141. Uniformity and consistency are core of judicial discipline.
But that which escapes in the judgment without any occasion is not ratio
decidendi. In B. Shama Rao v. Union Territory of Pondicherry it was
observed, 'it is trite to say that a decision is binding not because of its
conclusions but in regard to its ratio and the principles, laid down
therein'. Any declaration or conclusion arrived without application of mind
or preceded without any reason cannot be deemed to be declaration of law or
authority of a general nature binding as a precedent. Restraint in
dissenting or overruling is for sake of stability and uniformity but
rigidity beyond reasonable limits is inimical to the growth of law."
53. The doctrine of binding precedents has been settled by several
pronouncements of this Court. The Constitution Bench of this Court in the
case of Union of India vs. Raghubir Singh, (1989) 2 SCC 754, observed as
under:-
"8. Taking note of the hierarchical character of the judicial system in
India, it is of paramount importance that the law declared by this Court
should be certain, clear and consistent. It is commonly known that most
decisions of the courts are of significance not merely because they
constitute an adjudication on the rights of the parties and resolve the
dispute between them, but also because in doing so they embody a
declaration of law operating as a binding principle in future cases. In
this latter aspect lies their particular value in developing the
jurisprudence of the law.
9. The doctrine of binding precedent has the merit of promoting a certainty
and consistency in judicial decisions, and enables an organic development
of the law, besides providing assurance to the individual as to the
consequence of transactions forming part of his daily affairs. And,
therefore, the need for a clear and consistent enunciation of legal
principle in the decisions of a court."
54. In the case of Bharat Petroleum Corpn. Ltd. vs. Mumbai Shramik
Sangha, (2001) 4 SCC 448, a Constitution Bench of this Court reiterated the
same principle and held that:-
"2. We are of the view that a decision of a Constitution Bench of this
Court binds a Bench of two learned Judges of this Court and that judicial
discipline obliges them to follow it, regardless of their doubts about its
correctness. At the most, they could have ordered that the matter be heard
by a Bench of three learned Judges."
55. This Court in the case of Central Board of Dawoodi Bohra Community
vs. State of Maharashtra, (2005) 2 SCC 673, held as under:-
"8. In Raghubir Singh case, Chief Justice Pathak pointed out that in order
to promote consistency and certainty in the law laid down by the superior
court the ideal condition would be that the entire court should sit in all
cases to decide questions of law, as is done by the Supreme Court of the
United States. Yet, His Lordship noticed, that having regard to the volume
of work demanding the attention of the Supreme Court of India, it has been
found necessary as a general rule of practice and convenience that the
Court should sit in divisions consisting of judges whose number may be
determined by the exigencies of judicial need, by the nature of the case
including any statutory mandate relating thereto and by such other
considerations which the Chief Justice, in whom such authority devolves by
convention, may find most appropriate. The Constitution Bench reaffirmed
the doctrine of binding precedents as it has the merit of promoting
certainty and consistency in judicial decisions, and enables an organic
development of the law, besides providing assurance to the individual as to
the consequence of transactions forming part of his daily affairs."
56. Mr. Nariman, learned senior counsel appearing for the appellant put
heavy reliance on the decision in the case of Ramesh B. Desai vs. Bipin
Vadilal Mehta, (2006) 5 SCC 638, for the proposition that a plea of
limitation cannot be decided as an abstract principle of law divorced from
facts as in every case the starting point of limitation has to be
ascertained which is entirely a question of fact. A plea of limitation is
a mixed question of law and fact. In our considered opinion, in the
aforesaid decision this Court was considering the provision of Order XIV
Rule 2, CPC. While interpreting the provision of Order XIV Rule 2, this
Court was of the view that the issue on limitation, being a mixed question
of law and fact is to be decided along with other issues as contemplated
under Order XIV, Rule 2, CPC. As discussed above, Section 9A of
Maharashtra Amendment Act makes a complete departure from the procedure
provided under Order 14, Rule 2, CPC. Section 9A mandates the Court to
decide the jurisdiction of the Court before proceeding with the suit and
granting interim relief by way of injunction.
57. At the cost of repetition, we observe that Section 9A provides a self-
contained scheme with a non-obstante clause which mandates the court to
follow the provision. It is a complete departure from the provisions
contained in Order XIV Rule 2 CPC. In other words, the non-obstante clause
inserted by Maharashtra Amendment Act of 1977 in Section 9A and the express
mandate of the Section, the intention of the law is to decide the issue
relating to jurisdiction of the court as a preliminary issue
notwithstanding the provision contained in Order XIV Rule 2 CPC. However,
it is made clear that in other cases where the suits are governed by the
provisions of Order XIV Rule 2 CPC, it is the discretion of the court to
decide the issue based on law as preliminary issue.
58. We, therefore, after giving our anxious consideration to the
provisions of Code of Civil Procedure together with the amendments
introduced by the State Legislature, hold that the provision of Section 9A
as introduced by (Maharahtra Amendment) Act is mandatory in nature. It is a
complete departure from the provisions of Order XIV, Rule 2, C.P.C. Hence,
the reasons given by the High Court in the impugned orders are fully
justified. We affirm the impugned orders passed by the High Court.
59. For the reasons aforesaid, we do not find any merit in these appeals,
which are accordingly dismissed with no order as to costs.
..................................J.
(M.Y. Eqbal)
..................................J.
(Kurian Joseph)
New Delhi,
April 08, 2015.