Supreme Court of India
FORESHORE CO-OPERATIVE HOUSING SOCIETY LIMITEDversusPRAVEEN D.DESAI (DEAD) THR. LRS. AND OTHERS
- Citation
- 2015 INSC 296
- Decided
- 8 April 2015
- Disposal
- Dismissed
- Bench
- M Y EQBAL
Holding
Section 9A, by its non‑obstante clause, supersedes Order XIV Rule 2 and requires that any jurisdictional objection, including a limitation bar, be decided as a preliminary issue.
Summary
The Supreme Court examined whether an objection to limitation can be raised as a preliminary issue under Section 9A of the Code of Civil Procedure (Maharashtra Amendment) Act, 1977, and how that provision interacts with Order XIV Rule 2 of the CPC. The Court held that Section 9A, by virtue of its non‑obstante clause, creates a self‑contained scheme that mandates the court to decide any jurisdictional objection—including a limitation bar—at the earliest stage, even though Order XIV Rule 2 permits discretion to try a jurisdictional issue first. Consequently, the High Court’s decision to treat the limitation plea as a preliminary issue under Section 9A and to dismiss the suit as barred by limitation was affirmed. The appeals were dismissed.
Issues considered
- Whether the phrase ‘objection to the jurisdiction of the Court’ in Section 9A includes a plea that the suit is barred by limitation.
- Whether Section 9A overrides the procedure laid down in Order XIV Rule 2 of the CPC.
- Whether a limitation bar is a jurisdictional issue that must be decided as a preliminary issue under Section 9A.
Legislation cited
- Code of Civil Procedure, 1908s. 9, s. 9A, s. Order XIV Rule 2
- Code of Civil Procedure (Amendment) Act, 1976s. 97
- Code of Civil Procedure (Maharashtra Amendment) Act, 1977s. 9A
- Limitation Act, 1963s. 3
Subjects
Section 9ACPCjurisdictionlimitationpreliminary issueOrder XIV Rule 2non-obstante clauseinterim reliefcivil procedure
Judgment
[2015] 5 S.C.R.1075
FORESHORE CO-OPERATIVE HOUSING SOCIETY A
LIMITED
v.
PRAVEEN D.DESAI (DEAD) THR. LRS. AND OTHERS
(Civil Appeal No. 7732 of 2011) B
APRIL08, 2015
[M.Y. EQBALAND KURIAN JOSEPH, JJ.]
c
Code of Civil Procedure, 1908: s.9A [as inserted by
CPC (Maharashtra Amendment) Act, 1977]- Scope of s. 9A
vis-a-vis Order XIV r. 2 - Preliminary objection to the
jurisdiction of Court to entertain a suit whether include an D
objection with regard to /imitation- Held: s.9A of Maharashtra
Amendment Act is a complete departure from the procedure
provided u/Order XIV r.2- Non obstante clause inserted by
Maharashtra Amendment Act in s.9A and express mandate
of the section is to decide the issue relating to jurisdiction of E
the Court as a preliminary issue notwithstanding the provision
contained in Order XIV r.2- Limitation - Jurisdiction.
Words and phrases: Word Jurisdiction' - Meaning of
- Discussed.
F
Dismissing the appeals, the Court
HELD: 1. Order XIV Rule 2, CPC confers power
upon the Court to pronounce judgment on all the issues.
But there is an exception to that general Rule i.e., where G
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
1075 H
1076 SUPREME COURT REPORTS [2015] 5 S.C.R.
A of the Court or a bar to the suit created by any law. A
comparative reading of Order XIV Rule 2 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
B 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
C 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
0
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
E 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. [Paras 32, 34] [1095-
F-G; 1096-C-F]
F
Mathai vs. Varkey Varkey (1964) 1 SCR 495; Ramesh
B. Desai and Ors. vs. Bipin Vadilal Mehta and Ors.
(2006) 5 SCC 638: 2006 (3) Suppl. SCR 414; Official
Trustee WB. vs. Sachindra (1969) SC 823; National
G Thermal Power Corporation Ltd. vs. Siemens
Atkeingesellschaft (2007) 4 SCC 451: 2007 (3)
SCR 399; ITW Signode India Ltd vs. Collector of Central
Excise (2004) 3 SCC 48: 2003 (5) Suppl. SCR 751;
Manick Chandra Nandy vs. Debdas Nandy and Ors.
H (1986) 1 SCC 512; Kamlesh Babu and Others vs.
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1077
PRAVEEN D.DESAI (D) THR. LRS.
Lajpat Rai Sharma and Ors. (2008) 12 SCC 577: 2008 A
(6) SCR 653; Meher Singh vs. Deepak Sawhny 1998
(3) MhLJ 940: 1999 (1) Born CR 107 - referred to.
2. From reading of the aims and object of the Bill
whereby Section 9A was inserted, the term 'jurisdiction' B
is used in a wider sense and is not restricted to the
conventional definition either pecuniary jurisdiction or
territorial jurisdiction. 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 C
term 'jurisdiction' to its conventional and narrow
meaning would be contrary to the well settled
interpretation of the term. [Paras 40 to 41) [1099-B-D]
3. In a case where the Court has no jurisdiction; it D
cannot confer upon it by consent or waiver of the parties.
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 E
dismissed although the limitation has not been set up
as a defence. [Paras 43, 44) [1100-D-E]
Pandurang Dhondi Chougule vs. Maruti Hari Jadhav
1966 SC 153 ; Manick Chandra Nandy vs. Debdas F
Nandy (1986) 1 SCC 512; National Thermal Power
Corpn. Ltd. vs. Siemens Atkeingesellschaft 2007 (4)
sec 451: 2007 (3) SCR 399; Official Trustee VS.
Sachindra Nath Chatterjee AIR 1969 SC 823:
1969 SCR 92; ITW Signode India Ltd. vs. CCE (2004) G
3 SCC 48: 2003 (5) Suppl. SCR 751; Kamlesh Babu
vs. Lajpat Rai Sharma (2008) 12 SCC 577: 2008 (6)
SCR 653 - referred to.
4. Section 9A is a complete departure from the H
1078 SUPREME COURT REPORTS [2015) 5 S.C.R.
A 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
B preliminary issue notwithstanding the provision
contained in Order XIV Rule 2 CPC. However, 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.
C [Paras 56, 57] [1110-F-H; 1111-A-B]
State of U.P vs. Synthetics and Chemicals Ltd. 1991 (4)
SCC 139; Union of India 1r·s Raghubir Singh (1989) 2
SCC 754:1989 (3) SCR 316; Bharat Petroleum Corpn.
D Ltd. vs. Mumbai Shramik Sangha (2001) 4 SCC 448:
2001 (3) SCR 208; Bohra Community vs. State of
Maharashtra (2005) 2 SCC 673: 2004 (6) Suppl.
SCR1054; Ramesh B. Desai vs. Bipin Vadilal Mehta
(2006) 5 sec 638: 2006 (3) Suppl. scR 414 -
E referred to.
Case Law Reference
(1964) 1 SCR 495 referred to. Para 15
F 2006 (3) Suppl. SCR 414 referred to. Para 15
(1969) SC 823 referred to. Para 16
2007 (3) SCR 399 referred to. Para 16
2003 (5) Suppl. SCR 751 referred to. Para 17
G
(1986) 1 sec 512 referred to. Para 17
2008 (6) SCR 653 referred to. Para 17
1999 (1) Som CR 107 referred to. Para 38
H 1966 SC 153 referred to. Para 45
FORESHORE CO-OPERATIVE HOUSING SOC.LTD. v. 1079
PRAVEEN D.DESAI (D) THR. LRS.
(1986) 1 sec 512 referred to. Para 46 A
2007 (3) SCR 399 referred to. Para 46
1969 SCR 92 referred to. Para 47
2003 (5) Suppl. SCR 751 referred to. Para 48
B
2008 (6) SCR 653 referred to. Para 49
1991(4) sec 139 referred to. Para 52
1989 (3) SCR 316 referred to. Para 53
2001 (3) SCR 208 referred to. Para 54 c
2004 (6) Suppl. SCR 1054 referred to. Para 55
2006 (3) Suppl. SCR 414 referred to. Para 56
CIVILAPPELLATE JURISDICTION: Civil Appeal No.
D
7732 of 2011
From the Judgment and Order dated 17.10.2008 of the
High Court of Judicature at Bombay in Appeal No. 75 of 2006
in Notice of Motion No. 1222 of 2004 in Suit No. 2939 of 1999
E
WITH
C.A. Nos. 5514, 5515of2012, and
C. A. Nos. 3396, 3397 & 3396-95 of 2015
F
Jaideep Gupta, P. Chidambaram, Shekhar Naphade,
F. S. Nariman, Salman Khurshid, R. Venkatramani, Gopal Jain,
Atul Yeshwant Chitale, Shyam Divan, Kapil Sibal, Dr. A. M.
Singhvi, A. Sharan, Ashwani Kumar, P. H. Parekh, Ashok
Gupta, Arvind Minocha, Veena Minocha, Rukhmini Bobde, G
Chiraag Shah, UtsavTrivedi,Anubha Gupta (for Parekh & Co.),
Ruby Singh Ahuja, Tahira Karanjawala, R. N. Karanjawala,
Rohan Kelkar, Nirav Shah, Rahul Chitnis, Anisha Mitra, Manik
Karanjawala, Suman Yadav (for Karanjawala & Co.), Dinesh H
1080 SUPREME COURT REPORTS [2015] 5 S.C.R.
•
A Kumar Garg, Dhananjay Garg, Deepak Mishra, B. Sunita Rao,
Prashant, Shivaji M. Jadhav, Anish R. Shah, Lalit Bhasin, Nina
Gupta, M. Vidya, Parvez A. Khan, Mudit Sharma, P. V.
Yogeswaran, Jayati Chitale, S. Pandey Kaushik, SuchitraAtul
Chitale, Subramonium Prasad, Vijay Naik, Punit, Abhimanyu
B Bhandari, Aditya Shankar, Vivek Washi, Aanchal Mullick,
Naveen Kumar, Kanika Sharma, Sunita Sharma, Ajay
Bhargava, Gauri Rishi, Kishore (for Khaitan & Co.), P. K.
Manohar, Vijay Kr. Gupta, Asha Jain Madan, Vidur Bhatia,
Pallavi Langar, Bindi Girish Dave, Vanshdeep Dalmia, Kush
C Chaturvedi, Santosh Paul, Debopriyo Pal, Arvind Gupta,
Sheena, Arti Singh for the appearing parties.
The Judgment of the Court was delivered by
D M. Y. EQBAL, J. 1. 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
E vis-a- 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.
F 3. In Civil Appeal No. 7732 of 2011 (Foreshore
Cooperative 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
G barred by limitation. In Civil Appeal No.5514 of 3 Page 4 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.
H The Notice of Motion was taken out by the plaintiffs seeking
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1081
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
certain interim reliefs pending hearing of the suit. The learned A
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 B
the plaintiffsappellants 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 C
are aggrieved by the order passed by the learned Single Judge
whereby the prayer for grant of ad-interim relief 4 Page 5 was
declined pending hearing on the preliminary issue raised by
the defendants under Section 9A, CPC, till the jurisdiction of D
the court to entertain the suit is decided. The Division Bench
in the matter of Nusli Neville Wadi a (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 E
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 F
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 G
trial court held that the issue of limitation being a mixed question
of fact and law could not 5 Page 6 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
H
1082 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B pertaining to Civil Appeal No.7732 of 2011 (Foreshore
Cooperative 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
C 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 6 Page 7
D restraining them from doing so. The Appellant also prayed for
declaring the revalidation of the LO.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
E 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
F 17.03.1958 granting development rights over a portion of the
suit proper:ty 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 companyRespondent No. 2 vide
agreement dated 23.10.1959. Respondent Nos. 1 and 2
G constructed the building 'Advent' whose flat owners are the
members of the Appellant Society. The Municipal Corporation
granted I. 0. D. and 7 Page 8 commencement certificate to
Respondent No.1 in 1966 for constructing a building by the
H name of 'Divya Prabha' in the suit property. In 1968, the
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1083
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
Municipal Corporation issued notices for stopping the A
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.
B
6. In 1968-69, disputes arose between the Golwals and
Respondent Nos. 1 and 2 in relation to the 13nd 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 C
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 D
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 E
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 F
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 9 G
Page 10 were not entitled to carry out construction within the
suit property and for declaring that the revalidations of I. 0. D.
and the commencement certificate were illegal. On
28.06.1996, the validity of the I. 0. D. and the commencement
H
1084 SUPREME COURT REPORTS [2015] 5 S.C.R.
A certificate of 1966 were extended till 19.06.1997 and the suit
was amended to challenge the same. When the validity of the
1.0.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
B 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.
c
9. Revalidation certificates dated 18.09.1998 and
05.10.1998 were issued in relation to the I. 0. D. and the 10
Page 11 commencement certificate, and the Appellant
amended the plaint to challenge the same. However, by an
D 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
E 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
F 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
G injunction and Respondent No. 8 raised preliminary 11 Page 12
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
H jurisdiction of the court to entertain a suit as a preliminary issue
when such objection is raised in an·application for grant of
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1085
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
interim relief. In view of the same, learned Single Judge framed A
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 B
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 C
to the notice of motion was filed and preliminary issue
regarding jurisdiction was framed. The Appellant was required
to prove not only 12 Page 13 the diligent prosecution of Suit
No. 6734/1994 but also its diligent institution and the Single
0
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 E
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 F
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 G
was not so entitled, the suit would still be 13 Page 14 within
the period of limitation as the cause of action arose when the
I. 0. 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. H
1086 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B 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
C jurisdiction to entertain the same. The plea of limitation was
held to be a question of law which related to 14 Page 15 the
jurisdiction of the court and the court was held to be precluded
from adjudicating the matter on merits when the suit was barred
D 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
E 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
F the appeal vide the impugned judgment.
13. Hence, the present appeals by special leave by the
appellants. 15 Page 16
14. We have heard Mr. F.S. Nariman, Mr. P.
G 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.AM. Singhvi, Mr.Ashwini Kumar, Mr.A. Sharan,
H Mr. Shyam Divan and other learned senior counsel appearing
for the respond~nts.
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1087
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
15. At the very outset, Mr. Nariman drew our attention A
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 B
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 16 Page 17
i.e., any plea as to the jurisdiction of the court with reference to C
the subject matter, territorial or pecuniary jurisdiction, which
ousts the jurisdiction of the court. Mr. Nariman submitted that
initially Section 9Awas enacted by Maharashtra Amendment
Act of 1969 because of judgments rendered by the Bombay
0
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. E
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 F
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 17 Page 18 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 G
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 Vadila/ Mehta and
Ors., (2006) 5 sec
638. H
1088 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B 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 18 Page 19 Judges Bench decision of
C 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
D 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.
E 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
F Sharma and Others, (2008) 12 SCC 577. 19 Page 20
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:-
G
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
H sweep to exclude a case where the suit/any part of the alleged
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1089
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
cause of action is barred by limitation. Section 9A provides a 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 B
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 c
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. D
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 E
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 F
21 Page 22 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 G
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 H
the respondents.
1090 SUPREME COURT REPORTS [2015) 5 S.C.R.
A 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)
22 Page 23 and (II) have been added. Section 9 with
B 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
c suits of which their cognizance is either expressly or
impliedly barred. Explanation 1.-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
D 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."
E
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.
F
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
G 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
H Court as preliminary issue at hearing of the application.
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1091
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
(1) If, at the hearing of any application for granting or A
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 B
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 c
not in any case be adjourned to the hearing of the suit.
(2) Notwithstanding anything cor rtained in subsection (1),
at the hearing of any such application, the Court may grant
such interim relief as it may consider necessary, pending D
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 24 E
Page 25 (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 F
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.
G
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 H
1092 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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 25 Page 26
of Maharashtra (Amendment) Act of 1976, it again inserted
Section 9A in the Code of Civil Procedure. Section 9A which
B 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,
c 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, 'Nhether by way of
D 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
E 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.
F
(2) Notwithstanding anything contained in Subsection (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
G jurisdiction."
28. As noticed above, Section 9Awas for the first time
inserted by ,'\mendmentAct of 1970. The statement of objects
and reasons for such amendment is quoted hereunder:-
H
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1093
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
"The effect of the judgment of the High Court in Institute A
lndo-Portuguese vs. Borges (1958) 60 Born. LR. 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 B
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.191of1960, 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 c
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
D
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 E
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 F
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 G
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
H
1094 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B 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
c 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
D
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 28 Page 29 prevail and be available
E 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
F
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."
G 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
H objection with regard to limitation. In other words, whether an
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1095
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
issue relating to a bar to the suit created by law of limitation A
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 s
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 c
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 o
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 E
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 F
the issues. Butthere 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 30
Page 31 may be disposed of on the issue of law, it may try
that issue first ifthat issue relates to the jurisdiction of the Court G
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, H
1096 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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".
B
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
C permissible only in limited cases. In the un-amended Code,
the categorization was only between issues of law and 31
Page 32 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 tiad been
D 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
E 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
F 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
G provisions of Order XIV Rule 2 of the Code of Civil Procedure
or Section 9A 32 Page 33 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
H the bar of limitation as a preliminary issue.
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1097
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
36. Indisputably, the subject of Civil Procedure, including A
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 B
the Code, the State Legislature of Maharashtra felt that certain
amendments made by the earlier StateAmendmentActs 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 9Awas again re-enacted with C
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 D
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, E
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) Born CR 107, the F
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 G
Division Bench noticed that Section 9-A was added to the Civil
Procedure Code by Code of Civil Procedure 34 Page 35
(Maharashtra Amendment) Act, 1977. As per the amended
provision if in a suit, an objection to the jurisdiction of the Court H
to entertain such suit is taken by any of the parties to the suit,
1098 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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,
B 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:-
c "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
D 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
E even though raised, has led to grave abuse. Hence the
said section is added to see that issue of 35 Page 36
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
F
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."
G 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
H the plaintiff takes permission to withdraw the suit and to file a
fresh suit. As a matter of fact, the legislature intended to stop
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1099
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
this abuse of process by introducing Section 9A in the CPC A
by Maharashtra am~ndment 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.
B
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 C
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 o
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:
E
"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 F
commission under which the court is constituted, and may
be extended or restricted by similar means. 37 Page 38
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 G
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 H
1100 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B 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.
c
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
o own jurisdiction. In other words, in a case 38 Page 39 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
E 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.
F 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
G 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 39
H
Page 40 of fact however gross they may, or even errors
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1101
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of law, unless the said errors have relation to the A
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 B
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 c
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
D
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 E
questions of jurisdiction of that court, cannot be corrected
by the High Court under Section 115." (Emphasis given)
46. In the case of Ma nick Chandra Nandy vs. Debdas
Nandy, (1986) 1 SCC 512, this Court, while considering the F
the nature and scope of High Court's revision al 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
40 Page 41 limitation concerns the jurisdiction of the court
which tries a proceeding for a finding on this plea in favour of G
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:- H
1102 SUPREME COURT REPORTS [2015] 5 S.C.R.
A "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 cou~ or tribunal.
When a claim is dismissed on the ground of it being
B 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)
c
"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
D 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." 41
Page 42
E
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 TrustAct observed:-
F
"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
G 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
H parties."
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1103
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48. In the case of ITW Signode India Ltd. vs. CCE, A
(2004) 3 sec 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 B
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 C
the said question, particularly, when in the absence of
any finding of fact that 42 Page 43 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 D
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, E
(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 F
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 G
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 H
1104 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B dismissed. If the suit is not found to be time-43 Page 44
barred, the decision of the first appellate court on the
other issues shall not be disturbed."
50. Mr. Shekhar Naphade, learned senior counsel
C appearing for the respondent relied upon a recent decision of
a Division Bench of this Court in Civil Appeal No. 1085 of2015
(Kamalakar Eknath Salunkhe vs. Baburav Vishnu Javalkar &
Ors.) where this Court while considering Section 9A of the
Maharashtra Amendments of CPC observed that the
D 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
E 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
F 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 subjectmatter is of a fundamental
character. Undoubtedly, the jurisdiction of a Court may
G get restricted by a variety of circumstances expressly
men,tioned in a statute, charter or commission. This
inherent jurisdiction of a Court depends upon the
pecuniary and territorial limits laid down by 44 Page 45
law and also on the subject-matter of the suit. While the
H
suit might be barred due to noncompliance of certain
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1105
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provisions of law, it does not follow that the non- A
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 B
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 C
the amendmentAct 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 D
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 E
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 F
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 G
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 45 Page 46
defendant to the trial of the suit on merits when the
jurisdiction of the Court itself is doubtful. H
1106 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B 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."
c
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
D 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
E Atkeingesellschaft, (2007) 4 SCC 451, Official Trustee vs.
Sachindra Nath Chatterjee AIR 1969 SC 823, ITW 46
Page 47 Signode India Ltd. vs. CCE, (2004) 3 SCC 48 and
Kamlesh Babu vs. Lajpat Rai Sharma, (2008) 12 SCC 577.
F 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
G 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. 'lncuria' literally means 'carelessness'. In practice
H per incuriam appears to mean per ignoratium. English
FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1107
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
courts have developed this principle in relaxation of the A
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 accepted, approved and adopted
by this Court while interpreting Article 141 of the B
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 47 Page 48 c
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 D
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 subsilentio, in the technical E
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
F
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 G
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 H
1108 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B 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
c of mind or preceded without any reason cannot be
deemed to be declaration of law or authority of a general
nature binding as 48 Page 49 a precedent. Restraint in
dissenting or overruling is for sake of stability and
uniformity but rigidity beyond reasonable limits is inimical
D
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
E 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
F 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
G 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
H promoting a certainty and consistency in judicial
. FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1109
PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
decisions, and enables an organic development of the A
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."
49 Page 50 B
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:-
c
"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 o
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 sec 673, held as under:- E
"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
F
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 G
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 50 Page 51 including
any statutory mandate relating thereto and by such other
. considerations which the Chief Justice, in whom such H
1110 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B 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
C 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 nivr)~ced from facts as
in every case the starting point of limitation has to be
D 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
E the issue on limitation, being a mixed question of law and fact
is to be decided along with other 51 Page 52 issues as
contemplated under Order XIV, Rule 2, CPC. As discussed
above, Section 9Aof Maharashtra Amendment Act makes a
F 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
G 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
H inserted by Maharashtra Amendment Act of 1977 in Section
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PRAVEEN D.DESAI (D) THR. LRS. [M. Y. EQBAL, J.]
9A and the express mandate of the Section, the intention of A
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 52 Page 53
provisions of Order XIV Rule 2 CPC, it is the discretion of the B
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 C
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 D
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. · E
Devika Gujral Appeals dismissed.
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