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The Supreme Court has explained the scope of the term “jurisdiction” under Section 9A of the Code of Civil Procedure, 1908 as applicable to the State of Maharashtra.
In the process, the Court affirmed the decision in Eknath Salunkhe v. Baburav Vishnu Javalkar in which it was held that word jurisdiction in Section 9A is used in a narrow sense as to maintainability, only on the question of inherent jurisdiction and does not contemplate issues of limitation.
Thus, the Court overruled the decision in Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) through Legal Representatives and others in which the Court had held that word jurisdiction in Section 9A is used in a broader sense and 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.
The judgment was delivered by a Bench of Justices Arun Mishra, MR Shah and BR Gavai in the case of Nusli Neville Wadia v. Ivory Properties.
A reference has been made by a Division Bench of the Supreme Court but its order dated August 17, 2015, doubting the correctness of the decision of the Court in Foreshore Cooperative Housing Society Limited with respect to the interpretation provisions contained in Section 9A of CPC as inserted by the Maharashtra Amendment Act, 1977. It had been opined in that case 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 the conventional definition under pecuniary or territorial jurisdiction. Thus, the decision in Kamalakar Eknath Salunkhe, taking a contrary view, is per incuriam in view of the larger Bench decision in Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors, as well as other larger Bench decisions.
In Kamalakar Eknath Salunkhe, the Supreme Court had opined that the issue of limitation cannot be decided as a preliminary issue of jurisdiction under Sec 9, Reference has been made because of divergence in views.
Provision – Section 9A
The question that arose for consideration was the interpretation of the expression ‘jurisdiction of the Court to entertain such suit’ used in Section 9A of CPC.
Section 9A was initially by the Code of Civil Procedure (Maharashtra Amendment) Act, 1970. It was then repealed and subsequently, re-enacted with slightly modified terms by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977.
The reason for the introduction of the provisions of Section 9A in Maharashtra was that the suits used to be filed without notice under Section 80 of CPC. It related to bar on the institution of the suit without notice. After the expiry of the period of notice, the plaintiff used to be allowed to withdraw the suit with liberty to file a fresh one in the intervening period. The Court used to grant ad-interim injunction and continue the same. The practice of granting an injunction without going into the question of jurisdiction had led to grave abuse of the provisions of law. Thus, it was proposed that in case the question of jurisdiction is raised at the hearing of any applications for granting or setting aside an order granting interim relief, the Court shall determine that question first.
The provisions of Section 9A enable Court, dealing with the applications for granting or setting aside interim injunction or for appointment of a receiver or otherwise, to deal with the objection as to “jurisdiction of the Court to entertain such suit”, as preliminary issue and it shall not adjourn the matter to the hearing of the suit. Pending determination of the preliminary issue as to jurisdiction, the Court is competent as per section 9A(2) to grant interim relief as it may consider necessary.
On June 27, 2018, the State of Maharashtra by the promulgation of the “Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018” deleted Section 9A of the Code in its application to the State of Maharashtra.
It provided that preliminary issue framed under Section 9A shall be treated as an issue under Order XIV of CPC and be decided by the Court with other issues as it may deem fit. The above Ordinance was replaced by the Code of Civil Procedure (Maharashtra Amendment) Act, 2018 in October 2018.
However, it also provided that if the court has ordered to decide an issue as a preliminary issue before the date of deletion of Section 9A, it shall be decided by the court as a preliminary issue. This prompted the Court to settle the scope of Section 9A.
The provisions contained in Order XIV Rule 2 of CPC also deal with the framing of issues and the questions which can be tried as a preliminary issue before the amendment made in the year 1977 in CPC provisions.
From the pre amended provisions of Order XIV Rule 2 that only a question of law could have been tried as a preliminary issue, not the question of facts or a mixed question of law and facts, that too, when the case or part may be disposed of by a decision on the issue of law.
However, significant departure has been made in the amended provisions contained in Order XIV Rule 2. Now it mandates the Court to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue. The intendment is to avoid remand in the appealable case for deciding the other issues.
The two judgments
In Kamalakar Eknath Salunkhe, as to the interpretation of Section 9A, it was opined that word jurisdiction in Section 9A is used in a narrow sense as to maintainability, only on the question of inherent jurisdiction and does not contemplate issues of limitation.
However, in the recent decision of Foreshore Cooperative Housing Society Limited, it was held that decision in Kamalakar Eknath Salunkhe is contrary to the law. The word jurisdiction in Section 9A is used in a broader sense. It was also held that Section 9A is mandatory and a complete departure from the provisions of Order XIV Rule 2. The question of limitation is synonymous 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.
Senior Counsel Fali Nariman, appearing on behalf of the petitioner argued that the decision in Foreshore Cooperative Housing Society Limited cannot be said to have laid down the law correctly. The CPC confers no jurisdiction upon the Court to try a suit on a mixed question of law and facts as a preliminary issue. It was further submitted that the word jurisdiction has been used in a narrow sense and Section 9A does not cover the question of a suit being barred by any other provision of law.
The plea of limitation is a mixed question of law and facts and cannot be decided as an abstract principle divorced from the facts. The starting point of limitation has to be ascertained, which is entirely a question of fact in each case.
Senior Advocates Rakesh Dwivedi, Mukul Rohatgi, Abhishek Manu Singhvi, and Gopal Jain appearing on behalf of respondents submitted that Order XIV Rule 2, CPC has no relevance for construing the expression an objection to the jurisdiction of the Court to entertain such suit. The provision enacted in 1970 and reenacted in the year 1977 is the same. The object of the reintroduction was to maintain and continue what was enacted before the CPC Amendment Act of 1976. The question of limitation and res judicata is the one that can be decided as a preliminary issue under Section 9A of CPC.
It was submitted that under Order XIII Rule 1, parties are required to produce the documents in original on or before the settlement of the issues. Under Order XII, parties can give notice for admitting the documents. Under Order XII Rule 6, even a judgment can be given on admitted facts. These are the stages before framing the issue under Order XIV.
Consequently, under Order XIV Rule 2(2), the Court while trying issues would be entitled to look into the admitted facts in any case. Under Order XIV Rule 4, the Court can examine a witness and documents before framing issues. Therefore, it was contended by them that there is no good reason to prevent the Court from deciding issues of limitation based on documents produced, especially if they are admitted documents.
The Court at the outset stated that the word “jurisdiction” in Section 9A must be considered in the context it has been used. The word jurisdiction has to be interpreted in the context which has been used in the various provisions. The word “jurisdiction” has been used in CPC in several provisions.
“Section 9 deals with the jurisdiction to try all suits by a civil court except those which are barred. Section 10 prohibits a Court from proceeding with the trial. Section 11 and Explanation VIII are based upon the principle of res judicata. Section 21 defines objections to a jurisdiction such as the place of suing and competence of Court regarding the pecuniary limits of its jurisdiction.”
In Section 9A, the word jurisdiction is qualified with “to entertain the suit”. Thus, the expression used is ‘jurisdiction to entertain the suit.’ The Court has jurisdiction to entertain a suit when it has jurisdiction to receive it for consideration. If at the threshold, the Court cannot consider it, it can be said that the Court has no jurisdiction to entertain the case. It is like a suit is cognizable by Revenue Court, but it is filed in Civil Court, the Court cannot consider it nor can receive it for trial. It is like the jurisdiction to entertain the criminal appeal when the Court is not having inherent jurisdiction to consider the case; it can be said that the Court has no jurisdiction to entertain.
The Court also noted that the expression “jurisdiction to entertain” is also used in Section 14 of the Limitation Act. The provisions of Section 14 provide that in case a suit is filed in the wrong court and the Court from the defects of jurisdiction is unable to entertain it, the period to institute a suit can be extended.
The Court proceeded to analyse the scope of the word expression.
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, as observed by this Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner, Sales Tax, Kanpur, AIR 1968 SC 488. The expression entertain has been held to mean to adjudicate upon or proceed to consider on merits.”
The word “jurisdiction” in section 9A is qualified with expression to ‘entertain’ the suit. Thus, it is apparent that the scope of Section 9A has been narrowed down by the legislature as compared to the provisions contained in Order XIV Rule 2(2) by not including the provisions as to “a bar created by any other law for the time being in force.”
Since the expression used in section 9A as incorporated in Maharashtra, is “jurisdiction to entertain” that is in a narrower sense and its purport cannot be taken to be comprehensive as laid down in Foreshore Cooperative Housing Society Limited, the Court held.
When we consider what colour expression “jurisdiction” has in Section 9A, it is clearly in the context of power to entertain, jurisdiction takes colour from accompanying word ‘entertain’; i.e. the Court should have jurisdiction to receive a case for consideration or to try it.
In case there is no jurisdiction, the court has no competence to give the relief, but if it has, it cannot give such relief for the reason that claim is time-barred by limitation or is barred by the principle of res judicata or by bar created under any other law for the time being in force.
To make things clear, the Court stated:
“When a case is barred by res judicata or limitation, it is not that the Court has no power to entertain it, but it is not possible to grant the relief. Due to expiry of limitation to file a suit, extinguishment of right to property is provided under Section 27 of the Limitation Act. When Court dismisses a suit on the ground of limitation, right to property is lost, to hold so the court must have jurisdiction to entertain it. The Court is enjoined with a duty under Section 3 of the Limitation Act to take into consideration the bar of limitation by itself. The expression “bar to file a suit under any other law for the time being in force” includes the one created by the Limitation Act. It cannot be said to be included in the expression “jurisdiction to entertain” suit used in Section 9A.”
Therefore, the meaning to be given to jurisdiction to entertain in Section 9A is a narrow one as to maintainability, the competence of the court to receive the suit for adjudication is only covered under the provisions. The word entertain cannot be said to be the inability to grant relief on merits, but same relates to receiving a suit to initiate the very process for granting relief, the Court held.
The Court also ruled that when a question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order XIV Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order XIV Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts that are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976.
Thus, the Court concluded that what is intended by Section 9A of the Code of Civil Procedure, 1908 (CPC) is the defect of jurisdiction. It may be inter alia territorial or concerning the subject matter. The defect of jurisdiction may be due to provisions of the law. Only the maintainability of the suit before the court which is covered within the purview of Section 9A CPC as amended in Maharashtra. 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.
Thus, the decision in Foreshore Cooperative Housing Society Limited cannot be said to be laying down the law correctly. Further, the decision of the Full Bench of the High Court of Bombay in Meher Singh holding that under section 9A the issue to try a suit/jurisdiction can be decided by recording evidence if required and by proper adjudication, was also overruled.
The judgment in Kamlakar Shantaram was upheld as laying down the correct law.
Karanjawala & Co. represented the petitioner, Nusli Wadia and briefed Senior Advocate Fali S Nariman, who was assisted by Advocate Rohan Kelkar. The Karanjawala team included Nandini Gore, Senior Partner; Natasha Sahrawat, Principal Associate; Tahira Karanjawala, Principal Associate; Arjun Sharma, Senior Associate; Khushboo Bari, Senior Associate; Jasvir Singh Sabharwal, Associate and Karanveer Singh Anand, Associate.