Wednesday, 3 April 2019

Amendment in S 9A of CPC(Maharashtra amendment) is referred to larger bench

6 DEFECTS AND GROUNDS OF CHALLENGE to the Second
Amendment :
6.1 The Second Amendment creates discrimination between classes
of litigants :
(a) Section 3(1) of the Second Amendment Act states that
where an issue under Section 9A of the CPC is already “framed” as on 27th
June 2018, the issue is to be decided and disposed of by the Court under
Section 9A, as if Section 9A has not been deleted;
(b) Therefore, what the Second Amendment Act in fact
contemplates is that where an issue is “raised” but not “framed” under
Section 9A, the issue will be framed and decided under Order XIV of the
CPC, along with all other issues, at the time of disposal of the suit itself;
(c) Under the First Amendment Act, all issues (whether already
raised, framed or to be raised in the future in new proceedings) were
streamlined/dovetailed into Order XIV of the CPC, along with all other

issues, at the time of disposal of the suit itself;
(d) The First Amendment Act, therefore, treated existing issues
framed and new challenges to jurisdiction on the same footing, i.e., under
Order XIV (with some sun setting of Section 9A and revisions);
(e) Section 3(2) of the First Amendment Act which is in the
nature of a “sunset clause” provided for the abatement of revisions pending
against orders holding that the Court has jurisdiction and further provided
that such grounds shall be treated as grounds of objection in the eventual
appeal (in the judgement, order, decree); as such, it phased out the pending
revisions;
(f) Section 3(3) of the First Amendment Act provided that
where challenges by way of appeal or revision were pending against orders
made in applications under Section 9A, orders holding that the Court had
no jurisdiction to entertain the suit, the same would continue as if the First
Amendment Act had not been enacted and Section 9A had not been deleted;
(g) The Proviso to Section 3(3) of the First Amendment Act,
however, provides that in the event of the appeal/ revision being partially
allowed and the matter being remanded to the trial court for reconsideration
of the issue under Section 9A, “all the provisions of the
principal Act shall apply”, i.e., the CPC shall apply. The matter so remanded
would be considered now under Order XIV of the CPC. The provisions of

this subsection
are therefore, transitional in nature, i.e., partly allowing the
appeal and revision to continue but providing that remands would be
decided as an issue under Order XIV of the CPC;
(h) The Second Amendment Act, therefore, results in four new
classes of litigants:
i. where the jurisdictional issue is framed by the Court, the
parties must proceed under Section 9A (as if it has not
been deleted);
ii. where the jurisdictional issue is raised but not framed
by the Court, the issue will be decided under Order XIV of
the CPC;
iii. where the jurisdictional issue is to be raised and framed
by the Court in new proceedings to be filed after 27th June
2018, the issue will be decided under Order XIV of the
CPC;
iv. where a matter is remanded under Section 3(4) of the
First Amendment Act, the provisions of Order XIV will
apply.
(i) It is discriminatory and arbitrary to treat one set of litigants
differently from others inter alia for the following reasons :
i. Provisions of Section 9A/Order XIV of the CPC are not
merely matters of procedure; they confer benefits on the
litigants in terms of the stage at which the issue of
jurisdiction can be decided;
ii. The First Amendment Act proceeded on the basis that it
was in the interest of litigants to remove Section 9A as it
was resulting in delays and bottlenecks and as such its
removal would confer substantial benefit of a swift
disposal of the trial to the litigants;

iii. The Second Amendment proceeded on the contrary and
inconsistent basis that the removal of Section 9A had itself
caused delays and bottlenecks and that its reinsertion
would confer the substantial benefit of expeditious
disposal of the jurisdictional challenge, towards the
expeditious disposal of the suit;
iv. Both the First Amendment Act and Second Amendment
Act therefore aimed at furthering the rights of litigants to
expeditious disposal of the suit a substantial right, and
given the considerable pendency of suits, a very
meaningful one;
v. As is evident from the Statement of Objects and Reasons
of both Amendment Acts, the method of seeking to achieve
that objective is inconsistent, i.e., the First Amendment Act
seeks to do away with Section 9A (subject to transitioning
and sun setting provisions) whereas the Second
Amendment Act seeks to reinsert
Section 9A;
vi. The effect of the Second Amendment Act, is also to reinsert
Section 9A partially; it does not altogether delete
the provisions of the First Amendment Act; as such, we
have two different Acts which seek to achieve a common
objective in a contrary and inconsistent manner operating
together; this itself is arbitrary and unreasonable in law;
vii. The creation of the various classes of litigants
(mentioned above) depending on when the challenge is
filed, whether the issue is framed, and what the finding of
the Court was and whether the party has challenged such
finding in revision and/ or appeal is also completely
arbitrary;
viii. Why for instance should Section 9A stand attracted
merely because an issue has been framed, as opposed to
other cases where it has already been raised but no issue is
framed;
ix. Further, if the objective of the Second Amendment Act
is to be furthered, why are revisions (against an order
rejecting the jurisdictional challenge under Section 9A) by
Section 3(2) of the First Amendment Act abated and the
issue to be decided in the appeal against the final order in
the suit. Logically if the provisions of Section 9A were

salutary, such revisions should be available to the party in
revision (revision being a continuation of the original
proceeding under Section 9A);
x. Lastly, if Section 9A is salutary and desirable, why
should all litigants not have the benefit of it; why should
only those who have issues framed which are pending for
determination have the benefit of the provision.
xi. The judgement dated 12th December 2018 of the
Aurangabad Bench of this Court in Writ Petition No.12607
of 2017 with Writ Petition No.14076 of 2017 is before the
Second Amendment act was published and notified. The
Government of Maharashtra does not appear to have
considered the said judgement.
7 POWERS OF THE SINGLE JUDGE TO REFER A MATTER TO
THE CHIEF JUSTICE :
7.1 Rule 28, Part II, Chapter I of the Bombay High Court (Original
Side) Rules, 1980 reads as under :
“28. Reference to two or more Judges: If
it shall appear to any Judge
either on the application of a party or otherwise, that a suit or matter
can be more advantageously heard by a bench of two of more Judges, he
may report to that effect to the Chief Justice, who shall make such order
thereon as he shall think fit.”
7.2 The provisions of Rule 28 provide that if any judge feels that a
suit or matter can be more advantageously heard by a bench of two or more
Judges, he may report to that effect to the Chief Justice, who shall make
such order thereon as he thinks fit;
7.3 Rule 28 merely requires that the Judge should take the view
that the matter can be more advantageously heard by a bench or two or

more Judges.
8 In my view, there are good reasons for a view that it would be
advantageous to have the matter heard by a bench of two or more Judges,
viz., the effect of the First Amendment Act and Second Amendment Act
should be conclusively decided as a matter of public interest; and if a
constitutional issue is to be raised with respect to these Acts it would have
to be heard by a Division Bench.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY AND ORIGINAL CIVIL JURISDICTION
SUIT NO.179 OF 2017
WITH
NOTICE OF MOTION NO.550 OF 2017
IN
SUIT NO.179 OF 2017

Paresh Kapadia  Vs Sandeep Runwal 


CORAM:
K.R. Shriram, J.
DATE : 22nd February 2019.



1 In these three suits defendants have raised the issue of
jurisdiction under Section 9A of the Code of Civil Procedure (CPC). In Suit
No.179 of 2017 and Suit No.247 of 2017 this Court was pleased to frame
issue under Section 9A of CPC. In Suit No.215 of 2017 no such issue has
been framed but parties were directed to file their evidence affidavits.
2 As per the Code of Civil Procedure (Maharashtra Amendment)
Ordinance, 2018 (the First Amendment Act), Section 9A of Code of Civil
Procedure, 1908 (Maharashtra Amendment) came to be deleted. The
legality of deletion of Section 9A was challenged in the Bench of this Court
at Aurangabad in Writ Petition No.12607 of 2017 with Writ Petition
No.14076 of 2017. This Court by an order dated 12th December 2018 was
pleased to reject the challenge.
3 The Maharashtra Government on 15th December 2018 notified
the Civil Procedure (Maharashtra Amendment) (Amendment) Act, 2018
(the Second Amendment Act) amending the First Amendment Act. By this
Act, Section 3(1) of the First Amendment Act came to be substituted to the
effect that where consideration of a preliminary issue framed under Section

9A is pending on the date of commencement of the First Amendment Act,
the said issue shall be decided and disposed of by the Court under Section
9A, as if the said Section 9A has not been deleted. Since the Second
Amendment Act was notified soon after the First Amendment Act of deleting
Section 9A was notified, the Court was concerned as to whether the second
amendment was valid. One of the main concern was that the second
amendment is discriminatory and arbitrary to treat one set of litigants
differently from others. Even in the three suits before this Court today, in
one suit, viz., Suit No.215 of 2017 though the issue of objection has been
raised in the affidavit in reply to the notice of motion, formal issue has not
been framed. It was also observed from the statement of objects and reasons
of both Amendment Act, the method of seeking to achieve the objective
aimed at furthering the rights of litigants is inconsistent, i.e., the First
Amendment Act seeks to do away with Section 9A (subject to transitioning
and sun setting provisions), whereas the Second Amendment Act seeks to
reinsert
Section 9A.
Therefore, this Court appointed Mr. Zal T. Andhyarujina and
Dr. Abhinav Chandrachud, counsels, to assist the Court as Amicus Curiae.
Their assistance has been immense and the same is appreciated.
4 During the hearing, the following points came up for discussion
and consideration :
(1) The provisions of the Code of Civil Procedure (Maharashtra

Amendment) Act, 2018 (“the First Amendment Act”) and the provisions of
the Code of Civil Procedure (Maharashtra Amendment) (Amendment) Act,
2018 (“the Second Amendment Act”);
(2) The defects in the Second Amendment Act.
Mr. Andhyarujina submitted, and I agree with him, is that the Second
Amendment has to be set aside ; and
(3) The power of the Single Judge to refer a matter to the
Hon'ble Chief Justice of this Court.
5 THE AMENDMENT ACTS
5.1 The Ordinance and the First Amendment Act
5.1.1 The Ordinance –
i) The Code of Civil Procedure (Maharashtra Amendment)
Ordinance, 2018 (Maharashtra Ordinance No. XVIII of 2018) was
promulgated by the Governor of Maharashtra.
ii) The Ordinance was published and notified in the
Maharashtra Government Gazette on 27th June 2018.
iii) The Ordinance is extracted below:
“1. (1) This Ordinance may be called the Code of Civil Procedure
(Maharashtra Amendment) Ordinance, 2018.
(2) It shall come into force at once.
2. Section 9A of the Code of Civil Procedure, 1908, in its application to
the State of Maharashtra (hereinafter referred to as “the principal

Act”), shall be deleted.
3. Notwithstanding the deletion of section 9A of the principal Act, —
(1) where consideration of a preliminary issue framed under section 9A
is pending on the date of commencement of the Code of Civil Procedure
(Maharashtra Amendment) Ordinance, 2018 (hereinafter, in this
section, referred to as “the Amendment Ordinance”), the said issue shall
be deemed to be an issue framed under Order XIV of the principal Act
and shall be decided by the Court, as it deems fit, along with all other
issues, at the time of final disposal of the suit itself:
Provided that, the evidence, if any, led by any party or parties to the
suit, on the preliminary issue so framed under section 9A, shall be
considered by the Court along with evidence, if any, led on other issues
in the suit, at the time of final disposal of the suit itself;
(2) in all the cases, where a preliminary issue framed under section 9A
has been decided, holding that the court has jurisdiction to entertain the
suit, and a challenge to such decision is pending before a revisional
Court, on the date of commencement of the Amendment Ordinance,
such revisional proceedings shall stand abated:
Provided that, where a decree in such suit is appealed from any error,
defect or irregularity in the order upholding jurisdiction shall be treated
as one of the ground of objection in the memorandum of appeal as if it
had been included in such memorandum;
(3) in all cases, where a preliminary issue framed under section 9A has
been decided, holding that the Court has no jurisdiction to entertain the
suit, and a challenge to such decision is pending before an appellate or
revisional Court, on the date of commencement of the Amendment
Ordinance, such appellate or revisional proceedings shall continue as if
the Amendment Ordinance has not been enacted and section 9A has not
been deleted:
Provided that, in case the appellate or revisional Court, while partly
allowing such appeal or revision, remands the matter to the trial Court
for reconsideration of the preliminary issue so framed under section 9A,
upon receipt of these proceedings by the trial Court, all the provisions of
the principal Act shall apply;
(4) in all cases, where an order granting an adinterim
relief has been
passed under subsection
(2) of section 9A prior to its deletion, such
order shall be deemed to be an adinterim
order made under Order
XXXIX of the principal Act and the Court shall, at the time of deciding
the application in which such an order is made, either confirm or vacate
or modify such order.”

iv) The Statement of Objects and Reasons appended to the said
Ordinance was as follows:
“STATEMENT.
Section 9A was inserted in the Code of Civil Procedure, 1908 (5 of
1908), in its application to the State of Maharashtra, by the Code of
Civil Procedure (Maharashtra Amendment) Act, 1970 (Mah. XXV of
1970), with a view to undo the effect of a judgment of High Court
delivered in the case of Institute IndoPortuguese
v. Borges [(1958) 60
Bom. L.R. 660].
At the time, when a suit was filed against the Government in the
Bombay City Civil Court without a valid notice being issued under
section 80 of the Code, the Court would, without going into the question
of jurisdiction, grant an adinterim
injunction and an adjournment to
the Plaintiff. This would enable the Plaintiff to issue a notice to the
Government. After the expiry of the period of the notice, the Plaintiff
would then withdraw the suit with liberty to file a fresh one and in the
freshly filed suit seek continuation of the adinterim
injunction granted
earlier.
It was, therefore, felt that the practice of granting injunctions, without
going into the question of jurisdiction even though raised, was leading
to grave abuse. It was against the backdrop that section 9A was
introduced into the Code.
2. In 1976, the said Code has been extensively amended by the Code of
Civil Procedure (Amendment) Act, 1976 (CIV of 1976), enacted by the
Parliament. Therefore, to leave no room for any doubt whether the
State amendments continued to be in force or stood repealed, the
Maharashtra Amendment Act of 1970 was repealed and again section
9A is reenacted
by the Code of Civil Procedure (Maharashtra
Amendment) Act, 1977(Mah. LXV of 1977).
3. However, today, section 9A has become a cumbersome and tedious
provision which has contributed to judicial backlog and given rise to
several complications. It has been held, in Meher Sing vs. Deepak
Sawhny [(1998) 3 Mh.LJ. 940], that where an issue of jurisdiction
involves a mixed question of fact and law, parties must be given an
opportunity to lead evidence. It has been held, in Foreshore Cooperative
Housing Society vs. Praveen D. Desai [(2015) 6 SCC 412] and Sandeep
Gopal Raheja vs. Sonali Nimisha Arora [(2016) SCC On Line Bom.
9378], that section 9A is mandatory in nature, that where the
defendant raises an objection to the jurisdiction of the Court, the court
has no discretion and is bound to frame an issue and decide it. It has
been held, in Mukund Ltd. v. Mumbai International Airport ((2011) 2
Mah. LJ 936), that even a defendant cannot, as a matter of litigation
strategy, decide not to press its jurisdictional objection at the hearing of

the interim application. The question of whether section 9A includes a
plea by the defendant that the suit is barred by the law of limitation is a
vexed one, which has been referred to a larger Bench of the Supreme
Court in Jagdish Shyamrao Thorve v. Shri Mohan Sitaram Dravid, SLP
(C) 22438/ 2015, by virtue of an order dated the 17th August 2015.
Consequently, section 9A of the said Code has given rise to at least two
judicial bottlenecks which have stymied the speedy disposal of cases.
Firstly, when an issue is raised under section 9A of the said Code, a
court cannot dispose a motion until the trial into such an issue is
concluded and the issue is finally decided. The motion consequently
remains pending for several years, and adinterim
relief masquerades
virtually as final relief. Secondly, when such an issue is raised, two
trials have to be conducted, viz., one on the preliminary issue and the
other on the remaining issues, each subject to its own round of appeals
and Special Leave Petitions. All this needlessly burdens the Court with
duplication and results in a waste of judicial time and resources. In fact,
in Madhuriben K. Mehta vs. Ashwin Rupsi Nandu ((2012) 5 Bom. CR
27), the Bombay High Court took the view that section 9A has led to
the “abuse of duplication of work by repeated applications which has
become an endemically circuitous practice.”
4. It is, therefore, considered expedient to amend the Code of Civil
Procedure, 1908, in its application to the State of Maharashtra, by
deleting the said section 9A.
5. An opportunity is also being taken to provide for the effect and
consequences of the deletion of section 9A on the proceedings pending in
the Courts on the date of commencement of the proposed Ordinance. It
is proposed to provide for, —
(a) the pending preliminary issue to be decided at the time of final
decision of the suit itself, along with other issues framed under Order
XIV of the Code of Civil Procedure, 1908, including consideration of
evidence already led in that regard;
(b) abatment of the revisions pending before revisional forum against
the decision of the Trial Court holding that it has jurisdiction to
entertain the suit so as to ensure the speedy and final disposal of the
suit itself, while keeping alive the right of the defendant to challenge the
finding on the issue of jurisdiction at the appellate stage, in case if the
suit is finally decreed;
(c) continuation of appeals pending before Appellate Court against the
decision of the Trial Court holding that it has no jurisdiction to
entertain the suit, as if section 9A has not been deleted, as in such cases
the suit itself has been dismissed finally; and
(d) providing that an adinterim
relief granted under subsection
(2) of
section 9A prior to its deletion to be treated as an adinterim
order in
the interim application made under Order XXXIX of the Code of Civil

Procedure, 1908, which may be confirmed or vacated at the final
hearing of the interim application.
6. As both Houses of the State Legislature are not in session and the
Governor of Maharashtra is satisfied that circumstances exist which
render it necessary for him to take immediate action further to amend
the Code of Civil Procedure, 1908 (V of 1908), in its application to the
State of Maharashtra, for the purposes aforesaid, this Ordinance is
promulgated.”
5.1.2 The First Amendment Act –
(a) On 29th October 2018, the said Ordinance was replaced by
the Code of Civil Procedure (Amendment Act), 2018 [Maharashtra Act No.
LXI of 2018] and accordingly, the Ordinance was repealed.
(b) The Amendment Act was published and notified in the
Maharashtra Government Gazette and was deemed to have come into force
from 27th June 2018.
(c) The Amendment Act is as follows:
“1. (1) This Act may be called the Code of Civil Procedure (Maharashtra
Amendment) Act, 2018.
(2) It shall be deemed to have come into force on the 27th June 2018.
2. Section 9A of the Code of Civil Procedure, 1908, in its application to
the State of Maharashtra (hereinafter referred to as “the principal
Act”), shall be deleted.
3. Notwithstanding the deletion of section 9A of the principal Act, —
(1) where consideration of a preliminary issue framed under section 9A
is pending on the date of commencement of the Code of Civil Procedure
(Maharashtra Amendment) Act, 2018 (hereinafter, in this section,
referred to as “the Amendment Act”), the said issue shall be deemed to
be an issue framed under Order XIV of the principal Act and shall be
decided by the Court, as it deems fit, along with all other issues, at the
time of final disposal of the suit itself:

Provided that, the evidence, if any, led by any party or parties to the
suit, on the preliminary issue so framed under section 9A, shall be
considered by the Court along with evidence, if any, led on other issues
in the suit, at the time of final disposal of the suit itself;
(2) in all the cases, where a preliminary issue framed under section 9A
has been decided, holding that the Court has jurisdiction to entertain
the suit, and a challenge to such decision is pending before a revisional
Court, on the date of commencement of the Amendment Act, such
revisional proceedings shall stand abated:
Provided that, where a decree in such suit is appealed from any error,
defect or irregularity in the order upholding jurisdiction shall be treated
as one of the ground of objection in the memorandum of appeal as if it
had been included in such memorandum;
(3) in all cases, where a preliminary issue framed under section 9A has
been decided, holding that the Court has no jurisdiction to entertain the
suit, and a challenge to such decision is pending before an appellate or
revisional Court, on the date of commencement of the Amendment Act,
such appellate or revisional proceedings shall continue as if the
Amendment Act has not been enacted and sect ion 9A has not been
deleted:
Provided that, in case the appellate or revisional Court, while partly
allowing such appeal or revision, remands the matter to the trial Court
for reconsideration of the preliminary issue so framed under section 9A,
upon receipt of these proceedings by the trial Court, all the provisions of
the principal Act shall apply;
(4) in all cases, where an order granting an adinterim
relief has been
passed under subsection
(2) of section 9A prior to its deletion, such
order shall be deemed to be an adinterim
order made under Order
XXXIX of the principal Act and the Court shall, at the time of deciding
the application in which such an order is made, either confirm or vacate
or modify such order.
4. (1) The Code of Civil Procedure (Maharashtra Amendment)
Ordinance, 2018, is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken
(including any notification or order issued) under the corresponding
provisions of the principal Act, as amended by the said Ordinance, shall
be deemed to have been done, taken or issued, as the case may be, under
the corresponding provisions of the principal Act, as amended by this
Act.”

5.2 In Writ Petition No.12607 of 2017 heard with Writ Petition
No.14076 of 2017 by the Aurangabad Bench of this Court, a challenge to
the Ordinance (as it then was) was made, in particular to clause 3(1). The
prayer was to declare clause 3(1) of the said Ordinance unconstitutional
and be struck down. The learned Single Judge by an order and judgement
dated 12th December 2018, dismissed the challenge. The Court observed
how Section 9A was being misused and that it contributed to increasing
judicial backlog. It was also observed that Section 9A created judicial
bottlenecks which stymied the progress of litigation. It will be useful to
reproduce paragraphs 6 to 10 of the said judgement which read as under :
6. The contention on the Civil Application is that clause 3(1) of the said
Ordinance curtails the jurisdiction of the trial court or the appellate
court, which is empowered to entertain the objections under Section 9A.
The competent court can deal with the objections under Section 9A at a
preliminary stage and without taking up the said issue along with the
other issues. As such, the power vested in the Civil Court under Order
14 Rule 2 has been practically taken away and a mandate is created by
the said Ordinance that the said power would be curtailed into
entertaining of all issues together under Order 14 Rule 2. No ordinance
can take away the powers of the court as are enshrined under the
original enactment.
7. In view of the above, I find that the Civil Application needs to be dealt
with first since the conclusion on the Civil Application would have an
impact on the pending writ petitions.
8. The statement of reasons for introducing the Ordinance of 2018 is
available for assistance. The said statement reads thus :
"STATEMENT.
Section 9A was inserted in the Code of Civil Procedure, 1908 (5 of
1908), in its application to the State of Maharashtra, by the Code of
Civil Procedure (Maharashtra Amendment) Act, 1970 (Mah. XXV of
1970), with a view to undo the effect of a judgement of High Court
delivered in the case of Institute IndoPortuguese v. Borges [(1958) 60
Bom. L.R. 660]. At the time, when a suit was filed against the

Government in the Bombay City Civil Court without a valid notice being
issued under section 80 of the Code, the Court would, without going
into the question of jurisdiction, grant an adinterim
injunction and an
adjournment to the Plaintiff. This would enable the Plaintiff to issue a
notice to the Government. After the expiry of the period of the notice,
the Plaintiff would then withdraw the suit with liberty to file a fresh one
and in the freshly filed suit seek continuation of the adinterim
injunction granted earlier. It was, therefore, felt that the practice of
granting injunctions, without going into the question of jurisdiction
even though raised, was leading to grave abuse. It was against the
backdrop that section 9A was introduced into the Code.
2. In 1976, the said Code has been extensively amended by the Code of
Civil Procedure (Amendment) Act, 1976 (CIV of 1976), enacted by the
Parliament. Therefore, to leave no room for any doubt whether the
State amendments continued to be in force or stood repealed, the
Maharashtra Amendment Act of 1970 was repealed and again section
9A is reenacted by the Code of Civil Procedure (Maharashtra
Amendment) Act, 1977 (Mah.LXV of 1977).
3. However, today, section 9A has become a cumbersome and tedious
provision which has contributed to judicial backlog and given rise to
several complications. It has been held, in Meher Sing vs. Deepak
Sawhny [(1998) 3 Mh.LJ. 940], that where an issue of jurisdiction
involves a mixed question of fact and law, parties must be given an
opportunity to lead evidence. It has been held, in Foreshore Cooperative
Housing Society vs. Praveen D. Desai [(2015) 6 SCC 412] and Sandeep
Gopal Raheja vs . Sonali Nimisha Arora [(2016) SCC On Line Bom.
9378], that section 9A is mandatory in nature, that where the
defendant raises an objection to the jurisdiction of the Court, the court
has no discretion and is bound to frame an issue and decide it. It has
been held, in Mukund Ltd. v. Mumbai International Airport ((2011) 2
Mah. LJ 936), that even a defendant cannot, as a matter of litigation
strategy, decide not to press its jurisdictional objection at the hearing of
the interim application. The question of whether section 9A includes a
plea by the defendant that the suit is barred by the law of limitation is a
vexed one, which has been referred to a larger Bench of the Supreme
Court in Jagdish Shyamrao Thorve v. Shri Mohan Sitaram Dravid, SLP
(C) 22438/2015, by virtue of an order dated the 17th August 2015.
Consequently, section 9A of the said Code has given rise to at least two
judicial bottlenecks which have stymied the speedy disposal of cases.
Firstly, when an issue is raised under section 9A of the said Code, a
court cannot dispose a motion until the trial into such an issue is
concluded and the issue is finally decided. The motion consequently
remains pending for several years, and adinterim
relief masquerades
virtually as final relief. Secondly, when such an issue is raised, two
trials have to be conducted, viz., one on the preliminary issue and the
other on the remaining issues, each subject to its own round of appeals
and Special Leave Petitions. All this needlessly burdens the Court with
duplication and results in a waste of judicial time and resources. In fact,
in Madhuriben K. Mehta vs. Ashwin Rupsi Nandu ((2012) 5 Bom. CR

27), the Bombay High Court took the view that section 9A has led to
the “abuse of duplication of work by repeated applications which has
become an endemically circuitous practice.”.
4. It is, therefore, considered expedient to amend the Code of Civil
Procedure, 1908, in its application to the State of Maharashtra, by
deleting the said section 9A.
5. An opportunity is also being taken to provide for the effect and
consequences of the deletion of section 9A on the proceedings pending in
the Courts on the date of commencement of the proposed Ordinance. It
is proposed to provide for,—
(a) the pending preliminary issue to be decided at the time of final
decision of the suit itself, along with other issues framed under Order
XIV of the Code of Civil Procedure, 1908, including consideration of
evidence already led in that regard;
(b) abetment of the revisions pending before revisional forum against
the decision of the Trial Court holding that it has jurisdiction to
entertain the suit so as to ensure the speedy and final disposal of the
suit itself, while keeping alive the right of the defendant to challenge the
finding on the issue of jurisdiction at the appellate stage, in case if the
suit is finally decreed;
(c) continuation of appeals pending before Appellate Court against the
decision of the Trial Court holding that it has no jurisdiction to
entertain the suit, as if section 9A has not been deleted, as in such cases
the suit itself has been dismissed finally; and
(d) providing that an adinterim relief granted under subsection (2) of
section 9A prior to its deletion to be treated as an adinterim
order in
the interim application made under Order XXXIX of the Code of Civil
Procedure, 1908, which may be confirmed or vacated at the final
hearing of the interim application.
6. As both Houses of the State Legislature are not in session and the
Governor of Maharashtra is satisfied that circumstances exist which
render it necessary for him to take immediate action further to amend
the Code of Civil Procedure, 1908 (V of 1908), in its application to the
State of Maharashtra, for the purposes aforesaid, this Ordinance is
promulgated. "
9. The statement would, therefore, indicate that Section 9A was utilized
extensively to cause misuse rather than being in aid to the legal system.
By the excessive misuse of Section 9A, the litigation became cumbersome
and tedious and this contributed to increasing judicial backlog.
Paragraph 3 of the statement would indicate that judicial
pronouncements of the Honourable Supreme Court were taken into
account wherein, the Honourable Supreme Court concluded that as

Section 9A is practically mandatory in nature, an issue has to be cast
the moment the defendant raises an objection under Section 9A. No
discretion was left with the civil court to decide whether, the issue could
be framed or not and as such, the defendants were more prone to
misuse Section 9A. The matter was referred to the Larger Bench of the
Honourable Supreme Court in Jagdish Shyamrao Thorve vs. Mohan
Sitaram Dravid, SLP (C) No.22438/2015 by order dated 17.08.2015.
It was thus, concluded that Section 9A has created at least two judicial
bottlenecks which stymied the progress of litigation, resulted in delaying
the litigation and also resulted in multiplicity since several round of
litigations emerged from the orders passed on Section 9A by treating the
issue as a preliminary issue. It was in this backdrop that the Ordinance
of 2018 was introduced.
10. Insofar as the jurisdiction of this Court is concerned, I do not find
that the request made by the original Defendant could be entertained in
these petitions while dealing with the legality of the impugned orders.
Even otherwise, the objections raised by the Defendant under Section 9A
would now be constructed as objections under Order 14 Rule 2 and the
said objections would be considered to assess whether, the trial court
has territorial jurisdiction to entertain the suit.
5.3. Without considering this judgement, Maharashtra Government
published the Second Amendment Act to amend the First Amendment Act.
5.4 The Bill and the Second Amendment Act
5.4.1 The Bill –
(a) The Code of Civil Procedure (Maharashtra Amendment)
(Amendment) Bill, 2018 (L.A. Bill No.LXXX of 2018) was promulgated by
the Governor of Maharashtra.
(b) The Bill was published and notified in the Maharashtra
Government Gazette on 29th November 2018. The Bill was brought into
effect retrospectively from 27th June 2018.

(c) The Bill is extracted below :
“1. This Act may be called the Code of Civil Procedure
(Maharashtra Short title. Amendment) (Amendment) Act, 2018.
2. In section 3 of the Code of Civil Procedure (Maharashtra
Amendment) section 3 of Act, 2018, for clause (1), the following clause shall
be substituted and shall be deemed to have been substituted with effect from
the 27th June 2018, being the date of commencement of the said Act,
namely : —
(1) where consideration of a preliminary issue framed under section 9A
is pending on the date of commencement of the Code of Civil Procedure
(Maharashtra Amendment) Act, 2018 (hereinafter, in this section,
referred to as “the Amendment Act”), the said issue shall be decided and
disposed of by the Court under section 9A, as if the said section 9A has
not been deleted;”.
3. Nothing in this Act shall affect the decrees passed by a Civil
Court during the period commencing from the 27th June 2018 being the date
of commencement of the date of publication of this Act in the Maharashtra
Government Gazette.”
(d) The Statement of Objects and Reasons appended to the Bill
is as follows:
“STATEMENT OF OBJECTS AND REASONS
The Code of Civil Procedure (Maharashtra Amendment) Act, 2018
(Mah. LXI of 2018) is enacted to amend section 9A of the Code of Civil
Procedure, 1908 (V of 1908), in its application to the State of
Maharashtra. The said Act of 2018 provides for deletion of section 9A of
the said Code and further saving provisions, as a consequence of
deletion of the said section 9A. Clause (1) of section 3 of the said Act

provides that, in case consideration of a preliminary issue framed under
section 9A is pending on the date of commencement of the said Act of
2018, the said issue shall be decided at the time of final decision of
itself, along with other issues framed under Order XIV of the Code of
Civil Procedure, 1908 (V of 1908).
2. Though, it was intended that such a provision would result in
expeditious disposal of the suit itself, it has been observed that in fact
the decision of the court on the preliminary issue is prolonged and the
litigants are unnecessarily suffered thereby. It is, accordingly, proposed
to provide that, where the consideration of a preliminary issue framed
under Section 9A is pending on the date of commencement of the said
Act of 2018, the said issue shall be decided and disposed of by the Court
under section 9A as if the said section 9A has not been deleted.
3. It is, accordingly, proposed to amend clause (1) of section 3 of the
said Act of 2018 and make suitable consequential saving provisions in
that regard.
4. The Bill seeks to achieve the above objectives.”
5.4.2 The Second Amendment Act –
(a) On 15th December 2018, the said Bill was replaced by the
Code of Civil Procedure (Maharashtra Amendment) (Amendment) Act,
2018 (Maharashtra Act No. LXXII of 2018).
(b) The Amendment (Amendment) Act was published and
notified in the Maharashtra Government Gazette and was deemed to have
come into force from 27th June 2018.
(c) The Amendment (Amendment) Act is as follows :
“1. This Act may be called the Code of Civil Procedure (Maharashtra
Short title. Amendment) (Amendment) Act, 2018.
2. In section 3 of the Code of Civil Procedure (Maharashtra
Amendment) section 3 of Act, 2018, for clause (1), the following clause
shall be substituted and shall be deemed to have been substituted with
effect from the 27th June 2018, being the date of commencement of the
said Act, namely: —

(1) where consideration of a preliminary issue framed under
section 9A is pending on the date of commencement of the Code of
Civil Procedure (Maharashtra Amendment) Act, 2018
(hereinafter, in this section, referred to as “the Amendment Act”),
the said issue shall be decided and disposed of by the Court under
section 9A, as if the said section 9A has not been deleted;”.
3. Nothing in this Act shall affect the decrees passed by a Civil Court
during the period commencing from the 27th June 2018 being the date
of commencement of the date of publication of this Act in the
Maharashtra Government Gazette.”
6 DEFECTS AND GROUNDS OF CHALLENGE to the Second
Amendment :
6.1 The Second Amendment creates discrimination between classes
of litigants :
(a) Section 3(1) of the Second Amendment Act states that
where an issue under Section 9A of the CPC is already “framed” as on 27th
June 2018, the issue is to be decided and disposed of by the Court under
Section 9A, as if Section 9A has not been deleted;
(b) Therefore, what the Second Amendment Act in fact
contemplates is that where an issue is “raised” but not “framed” under
Section 9A, the issue will be framed and decided under Order XIV of the
CPC, along with all other issues, at the time of disposal of the suit itself;
(c) Under the First Amendment Act, all issues (whether already
raised, framed or to be raised in the future in new proceedings) were
streamlined/dovetailed into Order XIV of the CPC, along with all other

issues, at the time of disposal of the suit itself;
(d) The First Amendment Act, therefore, treated existing issues
framed and new challenges to jurisdiction on the same footing, i.e., under
Order XIV (with some sun setting of Section 9A and revisions);
(e) Section 3(2) of the First Amendment Act which is in the
nature of a “sunset clause” provided for the abatement of revisions pending
against orders holding that the Court has jurisdiction and further provided
that such grounds shall be treated as grounds of objection in the eventual
appeal (in the judgement, order, decree); as such, it phased out the pending
revisions;
(f) Section 3(3) of the First Amendment Act provided that
where challenges by way of appeal or revision were pending against orders
made in applications under Section 9A, orders holding that the Court had
no jurisdiction to entertain the suit, the same would continue as if the First
Amendment Act had not been enacted and Section 9A had not been deleted;
(g) The Proviso to Section 3(3) of the First Amendment Act,
however, provides that in the event of the appeal/ revision being partially
allowed and the matter being remanded to the trial court for reconsideration
of the issue under Section 9A, “all the provisions of the
principal Act shall apply”, i.e., the CPC shall apply. The matter so remanded
would be considered now under Order XIV of the CPC. The provisions of

this subsection
are therefore, transitional in nature, i.e., partly allowing the
appeal and revision to continue but providing that remands would be
decided as an issue under Order XIV of the CPC;
(h) The Second Amendment Act, therefore, results in four new
classes of litigants:
i. where the jurisdictional issue is framed by the Court, the
parties must proceed under Section 9A (as if it has not
been deleted);
ii. where the jurisdictional issue is raised but not framed
by the Court, the issue will be decided under Order XIV of
the CPC;
iii. where the jurisdictional issue is to be raised and framed
by the Court in new proceedings to be filed after 27th June
2018, the issue will be decided under Order XIV of the
CPC;
iv. where a matter is remanded under Section 3(4) of the
First Amendment Act, the provisions of Order XIV will
apply.
(i) It is discriminatory and arbitrary to treat one set of litigants
differently from others inter alia for the following reasons :
i. Provisions of Section 9A/Order XIV of the CPC are not
merely matters of procedure; they confer benefits on the
litigants in terms of the stage at which the issue of
jurisdiction can be decided;
ii. The First Amendment Act proceeded on the basis that it
was in the interest of litigants to remove Section 9A as it
was resulting in delays and bottlenecks and as such its
removal would confer substantial benefit of a swift
disposal of the trial to the litigants;

iii. The Second Amendment proceeded on the contrary and
inconsistent basis that the removal of Section 9A had itself
caused delays and bottlenecks and that its reinsertion
would confer the substantial benefit of expeditious
disposal of the jurisdictional challenge, towards the
expeditious disposal of the suit;
iv. Both the First Amendment Act and Second Amendment
Act therefore aimed at furthering the rights of litigants to
expeditious disposal of the suit a substantial right, and
given the considerable pendency of suits, a very
meaningful one;
v. As is evident from the Statement of Objects and Reasons
of both Amendment Acts, the method of seeking to achieve
that objective is inconsistent, i.e., the First Amendment Act
seeks to do away with Section 9A (subject to transitioning
and sun setting provisions) whereas the Second
Amendment Act seeks to reinsert
Section 9A;
vi. The effect of the Second Amendment Act, is also to reinsert
Section 9A partially; it does not altogether delete
the provisions of the First Amendment Act; as such, we
have two different Acts which seek to achieve a common
objective in a contrary and inconsistent manner operating
together; this itself is arbitrary and unreasonable in law;
vii. The creation of the various classes of litigants
(mentioned above) depending on when the challenge is
filed, whether the issue is framed, and what the finding of
the Court was and whether the party has challenged such
finding in revision and/ or appeal is also completely
arbitrary;
viii. Why for instance should Section 9A stand attracted
merely because an issue has been framed, as opposed to
other cases where it has already been raised but no issue is
framed;
ix. Further, if the objective of the Second Amendment Act
is to be furthered, why are revisions (against an order
rejecting the jurisdictional challenge under Section 9A) by
Section 3(2) of the First Amendment Act abated and the
issue to be decided in the appeal against the final order in
the suit. Logically if the provisions of Section 9A were

salutary, such revisions should be available to the party in
revision (revision being a continuation of the original
proceeding under Section 9A);
x. Lastly, if Section 9A is salutary and desirable, why
should all litigants not have the benefit of it; why should
only those who have issues framed which are pending for
determination have the benefit of the provision.
xi. The judgement dated 12th December 2018 of the
Aurangabad Bench of this Court in Writ Petition No.12607
of 2017 with Writ Petition No.14076 of 2017 is before the
Second Amendment act was published and notified. The
Government of Maharashtra does not appear to have
considered the said judgement.
7 POWERS OF THE SINGLE JUDGE TO REFER A MATTER TO
THE CHIEF JUSTICE :
7.1 Rule 28, Part II, Chapter I of the Bombay High Court (Original
Side) Rules, 1980 reads as under :
“28. Reference to two or more Judges: If
it shall appear to any Judge
either on the application of a party or otherwise, that a suit or matter
can be more advantageously heard by a bench of two of more Judges, he
may report to that effect to the Chief Justice, who shall make such order
thereon as he shall think fit.”
7.2 The provisions of Rule 28 provide that if any judge feels that a
suit or matter can be more advantageously heard by a bench of two or more
Judges, he may report to that effect to the Chief Justice, who shall make
such order thereon as he thinks fit;
7.3 Rule 28 merely requires that the Judge should take the view
that the matter can be more advantageously heard by a bench or two or

more Judges.
8 In my view, there are good reasons for a view that it would be
advantageous to have the matter heard by a bench of two or more Judges,
viz., the effect of the First Amendment Act and Second Amendment Act
should be conclusively decided as a matter of public interest; and if a
constitutional issue is to be raised with respect to these Acts it would have
to be heard by a Division Bench.
9 As there are many suits in which this will have a bearing, the
Registrar General to place this order immediately before the Hon'ble the
Chief Justice for consideration and making such order thereon as he shall
think fit.
(K.R. Shriram, J.)
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