The Supreme Court has observed that, under Section 9A of the Code of Civil Procedure applicable in the state of Maharashtra, question of limitation cannot be decided as a preliminary issue.
The bench comprising Justice Arun Mishra, Justice MR Shah and Justice BR Gavai observed that under the provisions of Section 9A and Order XIV Rule 2, it is open to decide preliminary issues if it is purely a question of law and not a mixed question of law and fact by recording evidence.
In Nusli Neville Wadia vs. Ivory Properties, the two judge bench in its reference order doubted the correctness of the decision in Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) (2015) 6 SCC 412 with respect to the interpretation provisions contained in Section 9A of the Code of Civil Procedure, 1908 as inserted by the Maharashtra Amendment Act, 1977.
Section 9A reads thus: 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 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. 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.
In Foreshore, it was held that the word "jurisdiction" under Section 9A is wide enough to include the issue of limitation as the expression has been used in the broader sense and is not restricted to conventional definition under pecuniary or territorial jurisdiction. Holding that the view taken in Kamalakar Eknath Salunkhe vs. Baburav Vishnu Javalkar (2015) 7 SCC 321, is per incuriam, it was further held that the Section 9A is mandatory and a complete departure from the provisions of Order XIV Rule 2 and that the question of limitation is synonym with jurisdiction, and if raised, the Court has to try it as a preliminary issue under Section 9A as applicable to the State of Maharashtra.
Before the Apex Court bench, the eminent Lawyer and Senior Advocate Fali S. Nariman appeared for the petitioner contending that the judgment in Foreshore does not lay down the correct law while Senior Advocates Rakesh Dwivedi, Shri Mukul Rohatgi, Dr. Abhishek Manu Singhvi, and Shri Gopal Jain appeared on behalf of the respondents and defended the view taken therein..
Foreshore Wrong Kamalakar Correct !
The three judge bench of the Apex Court was concerned with the interpretation of expression 'jurisdiction of the Court to entertain such suit' used in Section 9A of CPC. The bench held that the question of limitation cannot be said to be a question of jurisdiction of the Court in the context it has been used in Section 9A CPC. Answering the reference, the bench held as follows:
The jurisdiction to entertain has different connotation from the jurisdictional error committed in exercise thereof. There is a difference between the existence of jurisdiction and the exercise of jurisdiction. The expression jurisdiction has been used in CPC at several places in different contexts and takes colour from the context in which it has been used. The existence of jurisdiction is reflected by the fact of amenability of the judgment to attack in the collateral proceedings. If the court has an inherent lack of jurisdiction, its decision is open to attack as a nullity. While deciding the issues of the bar created by the law of limitation, res judicata, the Court must have jurisdiction to decide these issues. Under the provisions of section 9A and Order XIV Rule 2, it is open to decide preliminary issues if it is purely a question of law not a mixed question of law and fact by recording evidence. The decision in Foreshore Cooperative Housing Society Limited (supra) cannot be said to be laying down the law correctly. We have considered the decisions referred to therein, they are in different contexts. The decision of the Full Bench of the High Court of Bombay in Meher Singh (supra) holding that under section 9A the issue to try a suit/jurisdiction can be decided by recording evidence if required and by proper adjudication, is overruled. We hold that the decision in Kamlakar Shantaram (supra) has been correctly decided and cannot be said to be per incuriam, as held in Foreshore Cooperative Housing Society Limited (supra).
Section 2 of Maharashtra Second Amendment Act, 2018 which provides that where consideration of preliminary issue framed under section 9A is pending on the date of commencement of the CPC, the said issue shall be decided and disposed of by the court under section 9A as if the provision under section 9A has not been deleted, does not change the legal scenario as to what can be decided as a preliminary issue under section 9A, CPC, as applicable in Maharashtra. The saving created by the provision of section 2 where consideration of preliminary issue framed under section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018, can be decided only if it comes within the parameters as found by us on the interpretation of section 9A. We reiterate that no issue can be decided only under the guise of the 66 provision that it has been framed under section 9A and was pending consideration on the date of commencement of the (Maharashtra Amendment) Act, 2018. The reference is answered accordingly.
Kamalakar correctly decided
In Kamalakar, it was held as follows
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.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.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.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.
In the judgment, the meaning of the expressions like 'jurisdiction', 'Entertain the Suit' etc is discussed. It also explains the difference between existence and exercise of jurisdiction.
Jurisdiction is the power to decide and not merely the power to decide correctly. Jurisdiction is the authority of law to act officially. It is an authority of law to act officially in a particular matter in hand. It is the power to take cognizance and decide the cases. It is the power to decide rightly or wrongly. It is the power to hear and determine. Same is the foundation of judicial proceedings. It does not depend upon the correctness of the decision made. It is the power to decide justiciable controversy and includes questions of law as well as facts on merits. Jurisdiction is the right to hear and determine. It does not depend upon whether a decision is right or wrong. Jurisdiction means power 16 to entertain a suit, consider merits, and render binding decisions, and "merits" means the various elements which enter into or qualify plaintiff's right to the relief sought. If the law confers a power to render a judgment or decree, then the court has jurisdiction. The court must have control over the subject matter, which comes within classification limits of law under which Court is established and functions.
The word jurisdiction is derived from Latin words "Juris" and "dico," meaning "I speak by the law" and does not relate to rights of parties as between each other but to the power of the court. Jurisdiction relates to a class of cases to which a particular case belongs. Jurisdiction is the authority by which a judicial officer takes cognizance and decides the cases. It only presupposes the existence of a duly constituted court having control over subject-matter which comes within classification limits of the law under which court has been established. It should have control over the parties litigant, control over the parties' territory, it may also relate to pecuniary as well as the nature of the class of cases. Jurisdiction is generally understood as the authority to decide, render a judgment, inquire into the facts, to apply the law, and to pronounce a judgment. When there is the want of general power to act, the court has no jurisdiction. When the court has the power to inquire into the facts, apply the law, render binding judgment, and enforce it, the court has jurisdiction. Judgment within a jurisdiction has to be immune from collateral attack on the ground of nullity. It has co-relation with the constitutional and statutory power of tribunal or court to hear and determine. It means the power or capacity fundamentally to entertain, hear, and determine.
Jurisdiction to entertain is distinguished from merits, error in the exercise of jurisdiction or excess of jurisdiction.
The expression 'entertain' means to admit a thing for consideration. When a suit or proceeding is not thrown out in limine, but the court receives it for consideration for disposal under the law, it must be regarded as entertaining the suit or proceeding. It is inconsequential what is the final decision. The word 'entertain' has been held to mean to admit for consideration
Difference between the existence of jurisdiction and the exercise of jurisdiction
There is a difference between the existence of jurisdiction and the exercise of jurisdiction. In case jurisdiction is exercised with material irregularity or with illegality, it would also constitute jurisdictional error. However, if a court has jurisdiction to entertain a suit but in exercise of jurisdiction, a mistake has been committed, though it would be a jurisdictional error but not lack of it. It may be a jurisdictional error open for interference in appellate or revisional jurisdiction.
Section 9A vs. Order XIV Rule 2 CPC
Until and unless the question is pure of the law, it cannot be decided as a preliminary issue. In our opinion, a mixed question of law and fact cannot be decided as a preliminary issue, either under Section 9A or under Order XIV Rule 2 CPC. Before or after its amendment of CPC concerning both provisions, the position is the same.
The scope of Section 9A is different as compared to the provisions of Order XIV Rule 2 and the scope of Section 9A is limited not as comprehensive as that of Order XIV Rule 2. However, the concept of Order XIV Rule 2 with respect to what can be treated as preliminary issue will be applicable under Section 9A only in case question of "jurisdiction to entertain" arises, i.e., if it can be decided purely as question of law, at the stage contemplated under Section 9A, not in case if it is a mixed question of law and fact, no evidence can be recorded to decide the question under Section 9A, CPC.
Under Order XIV Rule 2, a suit can be decided even as to the question of res judicata, constructive res judicata, and maintainability. However, under Section 9A, the only jurisdiction to entertain has to be decided, where maintainability of the suit is decided concerning the jurisdiction of the Court as a pure question of law at a preliminary stage.
Rejection of Plaint on the ground of limitation
It cannot be laid down as proposition of law under Order VII Rule 11(d) that plaint cannot be rejected as barred by limitation. It can be said that it is permissible to do so mainly in a case where the plaint averment itself indicate the cause of action to be barred by limitation and no further evidence is required to adjudicate the issue.
Order VII Rule 11 vs. Section 9A
In case averments in the plaint indicate that suit is barred, it is liable to be rejected before the stage of Section 9A of CPC comes. Thus, the stage at which Order VII Rule 11(d) has to be applied, is at the threshold and the scope of Section 9A is somewhat limited and different. Though the scope of rejection of plaint under Order VII Rule 11(d) is broad enough which includes rejection of the plaint in case any law bars it, however, only the averments in the plaint have to be seen, nevertheless Section 9A is limited in its operation as to the jurisdiction of the Court to entertain a suit.
A wrong decision on the question of limitation will not render judgment a nullity
A wrong decision on the question of limitation will not render judgment a nullity. With great respect we observe that the expression used by this Court in para 23 that wrong decision on the question of limitation would render a judgment of the Court having jurisdiction to decide the issue as a nullity is ex facie incorrect. It may be a case of illegal exercise of jurisdiction to decide the issue, but judgment would not be a nullity.
The Petitioner, Mr. Nusli N. Wadia, was represented by Mr. Fali S. Nariman, Senior Advocate and Mr. Rohan Kelkar, Advocate and assisted by Ms. Nandini Gore, Senior Partner, Ms. Natasha Sahrawat and Ms. Tahira Karanjawala, Principal Associates, Ms. Khushboo Bari and Mr. Arjun Sharma, Senior Associates and Mr. Jasvir Singh Sabharwal and Mr. Karanveer Singh Anand, Associates from Karanjawala & Co. Advocates
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