Section 9A CPC (Maharashtra)- Question Of Limitation Cannot Be Decided As A Preliminary Issue: SC [Read Judgment]

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. Reference 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.Foreshore Judgment 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...

Section 9A CPC (Maharashtra)- Question Of Limitation Cannot Be Decided As A Preliminary Issue: SC [Read Judgment]

Ashok Kini

"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."

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