Thursday, 9 July 2015

Supreme court;As per S 9A of CPC(Maharashtra amendment) court can decide issue of limitation as preliminary issue


With great respect, we are of the view that the decision
rendered by the Division Bench in the case of Kamalakar
Eknath Salunkhe vs. Baburav Vishnu Javalkar & Ors. is
contrary to the law settled by the Constitution Bench and
three Judges Bench of this Court, followed by other Division
Bench in Pandurang Dhondi Chougule vs. Maruti Hari
Jadhav, AIR 1966 SC 153, (Five Judges Bench) in Manick
Chandra Nandy vs. Debdas Nandy, (1986) 1 SCC 512,
National Thermal Power Corpn. Ltd. vs. Siemens
Atkeingesellschaft, (2007) 4 SCC 451, Official Trustee
vs. Sachindra Nath Chatterjee AIR 1969 SC 823, ITW

Signode India Ltd. vs. CCE, (2004) 3 SCC 48 and
Kamlesh Babu vs. Lajpat Rai Sharma, (2008) 12 SCC
577. The Constitution Bench decision and other decisions
given by larger Bench are binding on us.
It appears that
those decisions have not been brought to the notice of the
Division Bench taking a contrary view.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7732 of 2011
Foreshore Co-operative Housing Society Limited

versus
Praveen D.Desai (Dead) thr. Lrs. and others


M. Y. EQBAL, J.
Citation;AIR 2015 SC2006

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

provisions of Order XIV Rule 2 CPC, it is the discretion of the
court to decide the issue based on law as preliminary issue.
58. We, therefore, after giving our anxious consideration to
the provisions of Code of Civil Procedure together with the
amendments introduced by the State Legislature, hold that
the provision of Section 9A as introduced by (Maharahtra
Amendment) Act is mandatory in nature. It is a complete
departure from the provisions of Order XIV, Rule 2, C.P.C.
Hence, the reasons given by the High Court in the impugned
orders are fully justified.
We affirm the impugned orders
passed by the High Court.
59. For the reasons aforesaid, we do not find any merit in
these appeals, which are accordingly dismissed with no
order as to costs.
..................................J.
(M.Y. Eqbal)
53
Page 53
..................................J.
(Kurian Joseph)
New Delhi,
April 08, 2015.



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