Saturday, 5 October 2019

Supreme Court: Issue of limitation can not be decided as preliminary issue under S 9A of CPC

Given the discussion above, we are of the considered opinion
that the jurisdiction to entertain has different connotation from the
jurisdictional error committed in exercise thereof. There is a difference
between the existence of jurisdiction and the exercise of jurisdiction.
The expression jurisdiction has been used in CPC at several places in
different contexts and takes colour from the context in which it has
been used. The existence of jurisdiction is reflected by the fact of
amenability of the judgment to attack in the collateral proceedings. If
the court has an inherent lack of jurisdiction, its decision is open to
attack as a nullity. While deciding the issues of the bar created by the
law of limitation, res judicata, the Court must have jurisdiction to
decide these issues. Under the provisions of section 9A and Order XIV
Rule 2, it is open to decide preliminary issues if it is purely a question
of law not a mixed question of law and fact by recording evidence. The

cannot be said to be laying down the law correctly. We have
considered the decisions referred to therein, they are in different
contexts. The decision of the Full Bench of the High Court of Bombay
in Meher Singh (supra) holding that under section 9A the issue to try a
suit/jurisdiction can be decided by recording evidence if required and
by proper adjudication, is overruled. We hold that the decision in
Kamlakar Shantaram (supra) has been correctly decided and cannot
be said to be per incuriam, as held in Foreshore Cooperative Housing
Society Limited (supra).
77.(b) Section 2 of Maharashtra Second Amendment Act, 2018 which
provides that where consideration of preliminary issue framed under
section 9A is pending on the date of commencement of the CPC, the
said issue shall be decided and disposed of by the court under section
9A as if the provision under section 9A has not been deleted, does not
change the legal scenario as to what can be decided as a preliminary
issue under section 9A, CPC, as applicable in Maharashtra. The
saving created by the provision of section 2 where consideration of
preliminary issue framed under section 9A is pending on the date of
commencement of the Code of Civil Procedure (Maharashtra
Amendment) Act, 2018, can be decided only if it comes within the
parameters as found by us on the interpretation of section 9A. We
reiterate that no issue can be decided only under the guise of the

provision that it has been framed under section 9A and was pending
consideration on the date of commencement of the (Maharashtra
Amendment) Act, 2018. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ INHERENT JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NOS.3198231983
OF 2013

NUSLI NEVILLE WADIA  Vs  IVORY PROPERTIES 

ARUN MISHRA, J.

Dated:October 4, 2019.


1. The reference has been made by a Division Bench of this Court
vide order dated 17.8.2015, doubting the correctness of the decision of
this Court in Foreshore Cooperative Housing Society Limited v. Praveen
D. Desai (Dead) through Legal Representatives and others, (2015) 6
SCC 412 with respect to the interpretation provisions contained in
Section 9A of the Code of Civil Procedure, 1908 (for short, ‘the CPC’) as
inserted by the Maharashtra Amendment Act, 1977. It has been
opined that the word “jurisdiction” under Section 9A is wide enough to
include the issue of limitation as the expression has been used in the
broader sense and is not restricted to conventional definition under
pecuniary or territorial jurisdiction, the decision in Kamalakar Eknath
Salunkhe v. Baburav Vishnu Javalkar and Ors., (2015) 7 SCC 321,
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taking contrary view, is per incuriam in view of the larger Bench
decision in Pandurang Dhondi Chougule and Ors. v. Maruti Hari
Jadhav and Ors, AIR 1966 SC 153 as well as other larger Bench
decisions.
2. In Kamalakar Eknath Salunkhe (supra) this Court has opined
that issue of limitation cannot be decided as a preliminary issue of
jurisdiction under Sec 9, Reference has been made because of
divergence in views.
3. The question arises for consideration as to the interpretation of
expression ‘jurisdiction of the Court to entertain such suit’ used in
Section 9A of CPC. Section 9A had been introduced initially by the
Code of Civil Procedure (Maharashtra Amendment) Act, 1970 and after
that reintroduced with slightly modified terms by the Code of Civil
Procedure (Maharashtra Amendment) Act, 1977. After its repeal it had
been reenacted
with effect from 19.12.1977. It was felt
necessary to reintroduce it after the extensive amendment made by
the Parliament in CPC by way of Amendment Act, 1976 with effect
from 1.2.1977.
4. Before we dilate further on the issue, we consider it appropriate
to refer to the Statement of Objects and Reasons under the original
enactment at the time of introduction of Section 9A in the year 1970.
Following is the Statement of Objects and Reasons as mentioned in
the Gazette dated 15.12.1969:
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“STATEMENT OF OBJECTS AND REASONS
The effect of the judgment of the High Court in Institute IndoPortuguese
vs. Borges, (1958) 60 Bom. L.R. 660 is that the Bombay
City Civil Court to grant 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 an 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. This
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 interim relief, the Court shall determine that
question first.
S.K. WANKHEDE
Nagpur, dated the 6th December 1969 Minister for Law.
S.H. BELAVADI
Nagpur dated the 15th December 1969 Secretary
Maharashtra Legislative
Assembly.”
The reason for the introduction of the provisions of Section 9A in
Maharashtra was that the suits used to be filed without notice under
Section 80 of CPC. It related to bar on the institution of the suit
without notice. After expiry of the period of notice, the plaintiff used
to be allowed to withdraw the suit with liberty to file fresh one in the
intervening period. The Court used to grant ad interim injunction and
continue the same. The practice of granting an injunction without
going into the question of jurisdiction has led to grave abuse of the
provisions of law. Thus, it was proposed that in case question of
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jurisdiction is raised at the hearing of any applications for granting or
setting aside an order granting interim relief, the Court shall
determine that question first. The provisions of Section 9A, as initially
introduced in 1970, are extracted hereunder:
“9A.(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 to the jurisdiction of the Court to entertain such
suit is taken by any of the parties to the suit, the Court shall
proceed to determine at the hearing of such application the issue as
to the jurisdiction as a preliminary issue before granting or setting
aside the order granting the interim relief. Any such application
shall be heard and disposed of by the Court as expeditiously as
possible and shall not, in any case, be adjourned to the hearing of
the suit.
(2) Notwithstanding anything contained in subsection
(1), at the
hearing of any such application, the Court may grant such interim
relief as it may consider necessary pending determination by it of
the preliminary issue as to the jurisdiction.”
5. The Statement of Objects and Reasons for reintroduction
of
Section 9A in the year 1977 is the same. It has been reenacted
in a
slightly revised form. The Statement of Objects and Reasons of the reenacted
provisions in the year 1977 is extracted hereunder:
“STATEMENT OF OBJECTS AND REASONS
The Code of Civil Procedure, 1908 (V of 1908) has been amended, in
its application to the State of Maharashtra, by the Code of Civil
Procedure (Hyderabad Amendment) Act, 1953 (Hyd. XI of 1953),
read with the Code of Civil Procedure (Extension of Hyderabad
Amendment) Act, 1964 (Mah. VI of 1965) and by the Code of Civil
Procedure (Maharashtra Amendment) Act, 1970 (Mah. XXV of
1970). By the first State Act of 1953, the proviso to section 60(1) is
amended to exempt the amounts payable under the policies issued
in pursuance of the Rules for the Hyderabad State Life Insurance
and Provident Fund from attachment in execution of a decree. By
the second State Act of 1970, a new section 9A
has been inserted
for providing that whereby an application, in which interim relief is
sought or is sought to be set aside in any suit and objection to
jurisdiction is taken, such issue should be decided by the Court as
a preliminary issue at the hearing of the application. The Code also
stands amended in its application to the Bombay area of this State
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by the Code of Civil Procedure (Bombay Amendment) Act, 1948
(Bom. LX of 1948) and in its application to the Hyderabad area of
this State by the Code of Civil Procedure (Hyderabad Second
Amendment) Act, 1953 (Hyd. XVIII of 1953). The first State Act of
1948 amends the proviso to section 60(1) to exempt from
attachment, stipends, and gratuities allowed to pensioners of a local
authority. The second State Act of 1953 also amends the proviso to
section 60(1) to exempt from attachment, the pension granted or
continued by the Central Government, the Government of the
former State of Hyderabad or any other State Government on
account of past services or present infirmities or as a
compassionate allowance.
2. The Code has been extensively amended by the Code of Civil
Procedure (Amendment) Act, 1976 (CIV of 1976) enacted by
Parliament. Section 97 of this Amendment Act provides interalia
that any amendments made in the Code by a State Legislature
before the commencement of that 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, are 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 reenacted,
with the assent of the President under article
254(2) of the Constitution, so that they may continue to 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 reenacting
by clause 3 the same section in a slightly revised form.
Clause 4.As
the amendment made by the State Act of 1948 is
included in the proviso to section 60(1) by the Central Amendment
Act of 1976, it is proposed to repeal this Act and the amendment
made by it.
Clauses 5 and 6.Clause
5 formally repeals the twoState
Acts of
1953 by which the proviso to section 60(1) was amended to give
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some additional exemptions from attachment. Clause 6 brings back
these amendments with the necessary drafting changes.
HUSSAIN M. DALWAI,
Dated the 5th of October 1977. Minister for Law and
Judiciary."
The provisions of Section 9A as reenacted
in the year 1977
contained a nonobstante
clause concerning provisions of CPC or any
other law for the time being in force. Section 9A as reintroduced
in
the year 1977 is extracted hereunder:
“9A. Whereof 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 be adjourned to
the hearing of the suit.
(2) Notwithstanding anything contained in subsection
(1), at the
hearing of any such application, the Court may grant such interim
relief as it may consider necessary, pending determination by it of
the preliminary issue as to the jurisdiction.”
The provisions of Section 9A enable Court, dealing with the
applications for granting or setting aside interim injunction or for
appointment of a receiver or otherwise, to deal with the objection as to
“jurisdiction of the Court to entertain such suit”, as preliminary issue
and it shall not adjourn the matter to the hearing of the suit. Pending
determination of the preliminary issue as to jurisdiction, the Court is
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competent as per section 9A(2) to grant interim relief as it may
consider necessary.
6. The State of Maharashtra on 27.06.2018 by the promulgation of
“Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018”
has deleted Section 9A
of the Code (in its application to the State of
Maharashtra). Section 3 of the Ordinance provided as under:
“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…”
It was provided that preliminary issue framed under section 9A
shall be treated as an issue under Order XIV of CPC and be decided by
the Court with other issues as it may deem fit. The above Ordinance
was replaced by the Code of Civil Procedure (Maharashtra
Amendment) Act, 2018 (Maharashtra Act No.LXI of 2018) (the 1st
Amendment Act) on 29.10.2018.
7. On 15.12.2018, the State of Maharashtra enacted the “Code of
Civil Procedure (Maharashtra Amendment) (Amendment) Act, 2018”
(the 2nd Amendment Act). Section 2 of Act reads as follows:
“2. In section 3 of the Code of Civil Procedure (Maharashtra
Amendment) 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
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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.”
It is provided that if the court has ordered to decide an issue as
a preliminary issue before the date of deletion of section 9A, it shall be
decided by the court as a preliminary issue. Thus, it has become
necessary to decide the issue.
8. The provisions contained in Order XIV Rule 2 of CPC also deals
with the framing of issues and the questions which can be tried as a
preliminary issue before the amendment made in the year 1977 in
CPC provisions. Rule 2 of Order XIV reads thus:
“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 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.”
(emphasis supplied)
It is apparent from the preamended
provisions of Order XIV
Rule 2 that only a question of law could have been tried as a
preliminary issue, not the question of facts or a mixed question of law
and facts, that too, when the case or part may be disposed of by a
decision on the issue of law.
9. The amendment in 1976 in CPC came into force on 1.2.1977.
The amended Rule 2 of Order XIV is extracted hereunder:
“2. Court to pronounce judgment on all issues.(
1)
Notwithstanding that a case may be disposed of on a preliminary
9
issue, the Court shall, subject to the provisions of subrule
(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.”
A significant departure has been made in the amended
provisions contained in Order XIV Rule 2. Now it mandates the Court
to pronounce judgment on all issues notwithstanding that a case may
be disposed of on a preliminary issue. The intendment is to avoid
remand in the appealable case for deciding the other issues. In case
the necessity arises, Order XIV Rule 2(2) enables the Court to decide
the issue of law as a preliminary issue in case the same relates to (1)
the jurisdiction of the Court or (2) a bar to the suit created by any law
for the time being in force. After the amendment made in CPC in the
year 1977, it contains twofold
provision, the question of jurisdiction
to entertain the suit has been separated under Rule 2(2)(a) from the
expression in Rule 2(2)(b) “a bar to the suit created by any law for the
time being in force."
10. In Kamalakar Eknath Salunkhe (supra), as to the interpretation
of Section 9A, it has been opined that word jurisdiction in Section 9A
is used in a narrow sense as to maintainability, only on the question

of inherent jurisdiction and does not contemplate issues of limitation.
The Court has observed:
“16. 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 regarding the value, place, and nature of the
subject matter. The classification into territorial jurisdiction,
pecuniary jurisdiction, and jurisdiction over the subjectmatter
is
fundamental. Undoubtedly, the jurisdiction of a court may get
restricted by a variety of circumstances expressly mentioned in a
statute, charter, or commission. The inherent jurisdiction of a court
depends upon the pecuniary and territorial limits laid down by law
and subjectmatter
of the suit. While the suit might be barred due
to noncompliance
with specific provisions of law, it does not follow
that the noncompliance
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 in
which the court has inherent jurisdiction to entertain but by
operation of the law of limitation, it would not warrant adjudication.
20. A perusal of the Statement of Objects 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 court process where a
plaintiff drags a defendant to the trial of the suit on merits when the
jurisdiction of the court itself is doubtful.
21. In the instant case, the preliminary issue framed by the trial
court is about 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.”
11. Where in the recent decision of Foreshore Cooperative Housing
Society Limited (supra), it has been held that decision in Kamalakar
Eknath Salunkhe (supra) is contrary to the law. The word jurisdiction
in Section 9A is used in a broader sense. It has also been held that
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Section 9A is mandatory and a complete departure from the provisions
of Order XIV Rule 2. The question of limitation is synonym with
jurisdiction, and if raised, the Court has to try it as a preliminary
issue under Section 9A as applicable to the State of Maharashtra.
This Court in Foreshore Cooperative Housing Society Limited (supra)
has observed:
“56. With great respect, we are of the view that the decision
rendered by the Division Bench in Kamalakar Eknath Salunkhe v.
Baburav Vishnu Javalkar, (2015) 7 SCC 321 is contrary to the law
settled by the Constitution Bench and threeJudge
Benches of this
Court, in Pandurang Dhondi Chougule v. Maruti Hari Jadhav (fivejudge
Bench), AIR 1966 SC 153 followed by other Division Benches
in Manick Chandra Nandy v. Debdas Nandy, (1986) 1 SCC 512,
NTPC Ltd. v. Siemens Aktiengesellschaft, (2007) 4 SCC 451, Official
Trustee v. Sachindra Nath Chatterjee, AIR 1969 SC 823, ITW
Signode India Ltd. v. CCE, (2004) 3 SCC 48 and Kamlesh Babu v.
Lajpat Rai Sharma, (2008) 12 SCC 577. The Constitution Bench
decision and other decisions given by the 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.
61. Mr Nariman, learned Senior Counsel appearing for the appellant
put heavy reliance on the decision in Ramesh B. Desai v. 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 decision as mentioned earlier, this Court was considering the
provision of Order 14 Rule 2 CPC. While interpreting the provision
of Order 14 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 issues as contemplated under Order 14 Rule 2
CPC. As discussed above, Section 9A
of the 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.
62. At the cost of repetition, we observe that Section 9A
provides a
selfcontained
scheme with a nonobstante clause which mandates
the court to follow the provision. It is a complete departure from the
provisions contained in Order 14 Rule 2 CPC. In other words, the
nonobstante clause inserted by the Maharashtra Amendment Act of
12
1977 in Section 9A
and the express mandate of the section, the law
intends to decide the issue relating to the jurisdiction of the court
as a preliminary issue notwithstanding the provision contained in
Order 14 Rule 2 CPC. However, it is made clear that in other cases
where the suits are governed by the provisions of Order 14 Rule 2
CPC, it is the discretion of the court to decide the issue based on
the law as a preliminary issue.”
It has also been observed that where the suits are governed by
the provisions of Order XIV Rule 2, it is the discretion of the Court to
decide the issue based on the law as a preliminary issue.
SUBMISSIONS
12. It has been submitted by Shri F.S. Nariman, learned senior
counsel appearing on behalf of the petitioner that decision in
Foreshore Cooperative Housing Society Limited (supra) cannot be said
to be laying down the law correctly. The CPC confers no jurisdiction
upon the Court to try a suit on a mixed question of law and facts as a
preliminary issue. It is further submitted that the word jurisdiction
has been used in a narrow sense and Section 9A
does not cover the
question of a suit being barred by any other provision of law. The
decision in Meher Singh v. Deepak Sawhney, 1998 (3) MLJ 940 and
Smithkline Beecham Consumer Consumer Healthcare v. Hindustan
Liver Limited, 2002 SCC OnLine Bom 1337 of the Bombay High Court
are directly in contravention to the law settled by this Court. The plea
of limitation is a mixed question of law and facts and cannot be
decided as an abstract principle divorced from the facts. The starting
point of limitation has to be ascertained, which is entirely a question
of facts in each case. In Pandurang Dhondi Chougule (supra), this
13
Court was concerned with the interpretation of the scope of Section
115 of the Code. Because of the provisions of Section 115 when
interference can be made in a revision, it has been observed that
limitation concerns jurisdiction. The decision in Kamalakar Eknath
Salunkhe (supra) cannot be said to be per incuriam, thus, it was not
open to the Division Bench to take a different view in the Foreshore
Cooperative Housing Society Limited (supra) when the Maharashtra
legislature consciously chose to reenact
Section 9A, it has used the
expression jurisdiction and provision as to the suit was barred by any
other law for the time being in force has not been added which
included the law of limitation also. Given the amended Order XIV
Rule 2, the preliminary issue can only be a pure question of law.
13. Shri Rakesh Dwivedi, Shri Mukul Rohatgi, Dr. Abhishek Manu
Singhvi, and Shri Gopal Jain, learned senior counsel appearing on
behalf of respondents submitted that Order XIV Rule 2, CPC has no
relevance for construing the expression an objection to the jurisdiction
of the Court to entertain such suit. The provision enacted in 1970
and reenacted
in the year 1977 is the same. The object of the reintroduction
was to maintain and continue what was enacted before
the CPC Amendment Act of 1976. The question of limitation and res
judicata is the one which can be decided as a preliminary issue under
Section 9A of CPC. It is submitted that under Order XIII Rule 1,
parties are required to produce the documents in original on or before
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the settlement of the issues. Under Order XII, parties can give notice
for admitting the documents. Under Order XII Rule 6, even a
judgment can be given on admitted facts. These are the stages before
framing the issue under Order XIV.
14. Consequently, under Order XIV Rule 2(2), the Court while trying
issues would be entitled to look into the admitted facts in any case.
Under Order XIV Rule 4, the Court can examine a witness and
documents before framing issues. Therefore, there is no good reason
to prevent the Court from deciding issues of limitation based on
documents produced, especially if they are admitted documents.
15. It is further submitted on behalf of respondents that the
expression jurisdiction used in Section 9A need not be qualified by the
word inherent, that would amount to rewriting
the Statute and would
be against the contextual meaning to be given to Section 9A. The
object for introducing the provision was not limited to objections about
inherent jurisdiction, but to cover bar created by the statute and
Section 80 is an illustration. Thus, the expression ‘barred under any
law for the time being in force' used in Order XIV Rule 2(2)(b) is
covered by Section 9A. Concerning expression used in Order XIV Rule
2(2), the Court may decide the issue of law as a preliminary issue that
has not been used in Section 9A. Thus, the provision deploys a
broader spectrum. It is further submitted that the speedy conclusion
of the trial is vital if a case can be decided on the point of jurisdiction
15
as also of limitation, then there is no rationale for keeping the case
pending. Thus, Section 9A buttress the idea of speedy justice. As
President assent has been received for the introduction of Section 9A,
the same will have an overriding effect on Order XIV Rule 2. The
provision cannot be said to be irrational or unreasonable in any
manner. In case plaint indicates that it is barred by limitation,
whether the fact can be seen and what can be tried as a preliminary
issue would depend on the nature of the provision of the statute and
the public policy behind it. Judgment in Foreshore Cooperative
Housing Society Limited (supra) has laid down the law correctly.
IN RE: MEANING OF WORD JURISDICTION
16. Jurisdiction is the power to decide and not merely the power to
decide correctly. Jurisdiction is the authority of law to act officially. It
is an authority of law to act officially in a particular matter in hand. It
is the power to take cognizance and decide the cases. It is the power to
decide rightly or wrongly. It is the power to hear and determine. Same
is the foundation of judicial proceedings. It does not depend upon the
correctness of the decision made. It is the power to decide justiciable
controversy and includes questions of law as well as facts on merits.
Jurisdiction is the right to hear and determine. It does not depend
upon whether a decision is right or wrong. Jurisdiction means power
16
to entertain a suit, consider merits, and render binding decisions, and
"merits" means the various elements which enter into or qualify
plaintiff's right to the relief sought. If the law confers a power to render
a judgment or decree, then the court has jurisdiction. The court must
have control over the subject matter, which comes within classification
limits of law under which Court is established and functions.
17. The word jurisdiction is derived from Latin words "Juris" and
"dico," meaning "I speak by the law" and does not relate to rights of
parties as between each other but to the power of the court.
Jurisdiction relates to a class of cases to which a particular case
belongs. Jurisdiction is the authority by which a judicial officer takes
cognizance and decides the cases. It only presupposes the existence of
a duly constituted court having control over subjectmatter
which
comes within classification limits of the law under which court has
been established. It should have control over the parties litigant,
control over the parties' territory, it may also relate to pecuniary as
well as the nature of the class of cases. Jurisdiction is generally
understood as the authority to decide, render a judgment, inquire into
the facts, to apply the law, and to pronounce a judgment. When there
is the want of general power to act, the court has no jurisdiction.
When the court has the power to inquire into the facts, apply the law,
render binding judgment, and enforce it, the court has jurisdiction.
Judgment within a jurisdiction has to be immune from collateral
17
attack on the ground of nullity. It has corelation
with the
constitutional and statutory power of tribunal or court to hear and
determine. It means the power or capacity fundamentally to entertain,
hear, and determine.
18. Jurisdiction to entertain is distinguished from merits, error in
the exercise of jurisdiction or excess of jurisdiction.
19. Section 9 of the Code of Civil Procedure deals with jurisdiction
and empowers the courts to try all civil suits unless barred. Section 9
is extracted hereunder:
“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.A
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.”
20. The words used in section 9 of the Code of Civil Procedure of
1882 "barred by any enactment for the time being in force" are
substituted in the Code of Civil Procedure of 1908 by "either expressly
or impliedly barred." Thus, the word "jurisdiction" under section 9
correlates with the cognisance, i.e., is not barred either expressly or
impliedly.
18
21. In Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC 1449 at
1450, it is observed that the jurisdiction of a court means the extent of
the authority of a court to administer justice prescribed concerning
the subjectmatter,
pecuniary value, and local limits.
22. In A.R. Antulay v. R.S. Nayak and Anr., (1988) 2 SCC 602, it has
been observed that expression jurisdiction or the bar to determine is
verbal cast of many colours. Jurisdiction is a legal shelter – a power
to bind despite a possible error in the decision. The Court observed:
"142. The expression "jurisdiction" or the power to determine is, it is
said, a verbal cast of many colours. In the case of Tribunal, the
error of law might become not merely an error in the jurisdiction
but might partake character in error of jurisdiction. However,
otherwise, jurisdiction is a ‘legal shelter' — a power to bind despite
a possible error in the decision. The existence of jurisdiction does
not depend on the correctness of its exercise. The authority to
decide embodies a privilege to bind despite the error, a privilege
which is inherent in and indispensable to every judicial function.
The characteristic attribute of a judicial act is that it binds whether
it be right or it is wrong. In Malkarjun Bin Shidramappa v. Narahari
Bin Shivappa, (1900) 27 IA 216 the executing court had, quite
wrongly, held that a particular person represented the estate of the
deceased judgmentdebtor
and put the property for sale in
execution. The Judicial Committee said:
In so doing the court was exercising its jurisdiction. It
made a sad mistake, it is true, but a court has
jurisdiction to decide wrong as well as right. If it decides
wrong, the wronged party can only take the course
prescribed by law for setting matters right; and if that
course is not taken the decision, however wrong, cannot
be disturbed.”
23. In Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K
Loraiya, (1972) 2 SCC 692, the word jurisdiction has been interpreted
in the context of Section 125 of the Army Act to signify the original
jurisdiction to take cognizance of a case. Following is the observation:
19
“11. Section 125 of the Army Act provides that when a criminal
court and a CourtMartial
have each jurisdiction in respect of an
offence, it shall be in the discretion of the officer commanding the
army, any corps, division or independent brigade in which the
accused person is serving to decide before which court the
proceedings shall be instituted, and if that officer decides that they
should be instituted before a CourtMartial,
he will direct that the
accused person shall be detained in military custody. Section 122(1)
and 125 both find place in Chapter X of the Army Act. Section 125
supports our view that the CourtMartial
alone has jurisdiction to
decide the issue of limitation under Section 122(1). The word
“jurisdiction” in Section 125 really signifies the initial jurisdiction to
take cognizance of a case. To put it in other words, it refers to the
stage at which proceedings are instituted in a court and not to the
jurisdiction of the ordinary criminal court and the CourtMartial
to
decide the case on merits. It appears to us that Section 549(1)
should be construed in the light of Section 125 of the Army Act.
Both the provisions have in mind the object of avoiding a collision
between the ordinary criminal court and the CourtMartial.
So both
of them should receive a similar construction.”
24. In Smt. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621,
the word jurisdiction employed in Section 9, CPC came up for
consideration. The Court held that jurisdiction means the authority to
decide and observed:
“(15) Now, I come to a controversial area. What is the position with
regard to an order made by a quasijudicial
authority in the
undoubted exercise of its jurisdiction in pursuance of a provision of
law which is admittedly intra vires? It is necessary first to clarify the
concept of jurisdiction. Jurisdiction means authority to decide.
Whenever a judicial or quasijudicial
tribunal is empowered or
required to enquire into a question of law or fact for the purpose of
giving a decision on it, its findings thereon cannot be impeached
collaterally or on an application for certiorari but are binding until
reversed on appeal. Where a quasijudicial
authority has
jurisdiction to decide a matter, it does not lose its jurisdiction by
coming to a wrong conclusion whether it is wrong in law or in fact.
The question, whether a tribunal has jurisdiction depends not on
the truth or falsehood of the facts into which it has to enquire, or
upon the correctness of its findings on these facts, but upon their
nature, and it is determinable "at the commencement, not at the
conclusion, of the inquiry'. (Rex v. Bolten [1841] I Q.B. 66. Thus, a
tribunal empowered to determine claims for compensation for loss
of office has jurisdiction to determine all questions of law and fact
relating to the measure of compensation and the tenure of the
office, and it does not exceed its jurisdiction by determining any of
those questions incorrectly, but it has no jurisdiction to entertain a
20
claim for reinstatement or damages for wrongful dismissal, and it
will exceed its jurisdiction if it makes an order in such terms, for it
has no legal power to give any decision whatsoever on those
matters……
(Halsbury's Laws of England, 3rd Edn. Vol. 11 page 59). The
characteristic attribute of judicial act or decision is that it binds,
whether it be right or wrong. An error of law or fact committed by a
judicial or quasijudicial
body cannot, in general, be impeached
otherwise than on appeal unless the erroneous determination
relates to a matter on which the jurisdiction of that body depends.
These principles govern not only the findings of inferior courts
stricto sensu but also the findings of administrative bodies which
are held to be acting in a judicial capacity. Such bodies are deemed
to have been invested with power to err within the limits of their
jurisdiction; and provided that they keep within those limits, their
decisions must be accepted as valid unless set aside on appeal.
Even the doctrine of res judicata has been applied to such
decisions. (See Livingstone v. Westminister Corporation [1904] 2
K.B. 109; Re Birkenhead Corporation (1952) Ch. 359 Re 56 Denton
Road Twickenham [1953] Ch. 51 Society of Medical Officers of
Health v. Hope [1959] 2 W.L.R. 377. ….”
(emphasis supplied)
25. In Anowar Hussain v. Ajay Kumar Mukherjee, AIR 1965 SC 1651,
it was held that expression jurisdiction does not mean the power to do
or order the act impugned, but generally the authority of the Judicial
Officer to act in the matter.
26. In M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427, the Court
recognized that the word jurisdiction is a verbal coat of many colours.
In Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors., (1974) 3 SCC
415, it was observed that expanse of jurisdiction would take colour
from its context.
27. The jurisdiction in Section 9A must be considered in the context
it has been used. The word jurisdiction has to be interpreted in the
context which has been used in the various provisions. The word
21
“jurisdiction” has been used in CPC in several provisions. Section 9
deals with the jurisdiction to try all suits by a civil court except those
which are barred. Section 10 prohibits a Court from proceeding with
the trial. Section 11 and Explanation VIII are based upon the principle
of res judicata. Section 21 defines objections to a jurisdiction such as
the place of suing and competence of Court regarding the pecuniary
limits of its jurisdiction. Section 86 prohibits a suit against a foreign
State in any Court otherwise competent to try the suit except with the
consent of Central Government. Section 135 refers to the matter
pending for determination having jurisdiction therein. Order II Rule
3(2) contains a provision concerning the jurisdiction of the Court as
regards the suit. Order VII Rule 11(d) deals with the rejection of the
plaint on the ground being barred by law. Order VIII Rule 3A(
4)
provides a defendant to put forth the objection as to the jurisdiction.
Order XIV Rule 2 distinguishes between preliminary issues relating to
the jurisdiction of the Court or a bar to the suit created by any law for
the time being in force. Order XXIII Rule 3A
provides that no suit
shall lie to set aside a compromise decree. There are various other
provisions in which the expression has been used.
IN RE: “ENTERTAIN THE SUIT”
28. When we consider provisions in Section 9A, the word jurisdiction
is qualified with "to entertain the suit," the expression used is
‘jurisdiction to entertain the suit.' The Court has jurisdiction to
22
entertain a suit when it has jurisdiction to receive it for consideration.
If at the threshold, the Court cannot consider it, it can be said that the
Court has no jurisdiction to entertain the case. It is like a suit is
cognizable by Revenue Court, but it is filed in Civil Court, the Court
cannot consider it nor can receive it for trial. It is like the jurisdiction
to entertain the criminal appeal when the Court is not having inherent
jurisdiction to consider the case; it can be said that the Court has no
jurisdiction to entertain. When the separate statutory mechanism is
provided for the consideration of a particular dispute and jurisdiction
of Civil Court is barred, and if it is brought before the Civil Court
whose jurisdiction is barred, it cannot entertain such a suit and
receive it for consideration. It can be said that the Court has no
jurisdiction to entertain such a suit. When the Court cannot think
over to allow itself to consider, it can be said that it has no jurisdiction
to entertain. It is like a case is cognizable in a consumer forum; a
Civil Court cannot entertain it.
29. The expression “jurisdiction to entertain” is also used in Section
14 of the Limitation Act. The provisions of Section 14 provide that in
case a suit is filed in the wrong court and the Court from the defects of
jurisdiction is unable to entertain it, the period to institute a suit can
be extended.
30. The meaning of the word ‘entertain’ came up for consideration in
Kashiram v. Santokhbai, AIR 1958 MP 91. The word ‘entertain’ means
23
to admit for consideration. It does not mean giving relief. When the
court receives it for consideration and disposal, according to law, it
must be regarded as entertaining the suit or proceedings. The High
Court of Madhya Pradesh has observed as under:
“5. In our opinion, the contention advanced on behalf of the
appellant must be given effect to. We have no doubt that S.14 of the
Limitation Act has no application to the facts of this case, and the
plaintiff is not entitled to the benefit of that section. Before that
section can apply, the prior proceeding must have been founded
upon the same cause of action as that on which the later suit is
founded and the Court in which the prior proceeding was
prosecuted must have been unable to entertain it for the reasons
specified, namely, defect of jurisdiction or other cause of a like
nature. Now the words 'which, from defect of jurisdiction, or other
cause of a like nature, is unable to entertain it' which occur in
S.14(1) of the Limitation Act are very significant.
As pointed out by Mukherjee, J. (as he then was), in AIR 1945
Cal 381 (B), the word 'entertain' means to admit for consideration. It
does not mean giving relief, and that when a suit or proceeding is
not thrown out in limine but the Court receives it for consideration
and disposal according to law, it must be regarded as entertaining
the suit or proceeding, no matter whatever the ultimate decision
may be; and that a suit is to be regarded as not entertained by the
Court only if it is thrown out at its inception and the Court does not
decide it on its merits."
The learned Judge further observed that S.14 of the Limitation
Act speaks of the inability of the Court to entertain a suit or
proceeding on certain specific grounds, which are of a formal nature
and that inability to entertain a suit means not inability to grant
relief to the plaintiff but inability to give him a trial at all. In our
opinion when a suit is dismissed not because the Court had no
jurisdiction to entertain it, or for any other cause of a like nature,
but because it was misconceived or because the proceeding or the
suit was not one recognised by law as legal in its initiation, then
clearly S.14 of the Act is not attracted to such a suit.
This view is amply supported by the cases cited by the learned
counsel for the appellant and numerous other cases. Now, here, the
plaintiff's prior suit was dismissed not because of any defect of
jurisdiction or any other ground similar to it, but it was entertained
and dismissed because it was wholly misconceived and the relief of
rendition of accounts could not be granted against the son of a
deceased agent. The suit was dismissed because the proceedings
according to the trial Court were not recognised by law as legal in
their initiation. If then, S.14 of the Limitation Act has no
applicability to this case, and the plaintiff's suit is governed by
Art.89, then it is clearly barred by time and must be dismissed.”
24
The High Court of M.P. has relied upon the decision in Nakul
Chandra Ghose v. Shyamapada Ghose, AIR 1945 Cal 381.
31. The expression ‘entertain' means to admit a thing for
consideration. When a suit or proceeding is not thrown out in limine,
but the court receives it for consideration for disposal under the law, it
must be regarded as entertaining the suit or proceeding. It is
inconsequential what is the final decision. The word ‘entertain' has
been held to mean to admit for consideration, as observed by this
Court in Lakshmiratan Engineering Works Ltd. v. Assistant
Commissioner, Sales Tax, Kanpur, AIR 1968 SC 488. The expression
‘entertain’ means to adjudicate upon or to proceed to consider on
merits as observed in Hindusthan Commercial Bank Ltd. v. Punnu
Sahu (Dead) through Legal Representatives, 1971 (3) SCC 124.
32. The meaning of the word ‘entertain’ has been considered to mean
‘adjudicate upon' or ‘proceed to consider on merits.' It has been
observed in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead)
through Legal Representatives, 1971 (3) SCC 124 as under:
"4. Before the High Court it was contended on behalf of the
appellant, and that contention was repeated in this Court, that
Clause (b) of the proviso did not govern the present proceedings as
the application in question had been filed several months before
that clause was added to the proviso. It is the contention of the
appellant that the expression "entertain" found in the proviso refers
to the initiation of the proceedings and not to the stage when the
Court takes up the application for consideration. This; contention
was rejected by the High Court relying on the decision of that court
in Kundan Lal v. Jagan Nath Sharma, AIR 1982 All 547. The same
25
view had been taken by the said High Court in Dhoom Chand Jain
v. Chamanlal Gupta, AIR 1962 All 543 and Haji Rahim Bux and
Sons v. Firm Samiullah and Sons, AIR 1963 All 320 and again in
Mahavir Singh v. Gauri Shankar, AIR 1964 All 289. These decisions
have interpreted the expression "entertain" as meaning 'adjudicate
upon' or 'proceed to consider on merits.' This view of the High Court
has been accepted as correct by this Court in Lakshmiratan
Engineering Works Ltd. v. Asst. Comm., Sales Tax, Kanpur, AIR 1968
SC 488. We are bound by that decision, and as such, we are unable
to accept the contention of the appellant that Clause (b) of the
proviso did not apply to the present proceedings."
The word ‘entertain’ came up for consideration in Hindusthan
Commercial Bank Ltd. (supra) in the context of Order XXI Rule 90 as
amended by the Allahabad High Court. The expression entertain has
been held to mean to adjudicate upon or proceed to consider on
merits.
IN RE: DIFFERENCE BETWEEN EXISTENCE AND EXERCISE OF
JURISDICTION
33. There is a difference between the existence of jurisdiction and
the exercise of jurisdiction. In case jurisdiction is exercised with
material irregularity or with illegality, it would also constitute
jurisdictional error. However, if a court has jurisdiction to entertain a
suit but in exercise of jurisdiction, a mistake has been committed,
though it would be a jurisdictional error but not lack of it. It may be a
jurisdictional error open for interference in appellate or revisional
jurisdiction.
34. In Dabur India Limited v. K. R. Industries, 2008 10 SCC 595, it
has been observed that the jurisdiction under Order II Rules 2 and 3
26
of the Code of Civil Procedure can be exercised only when the court
has otherwise jurisdiction in respect of the cause of action wherefor
the action has been brought. The Court has observed:
“19. The question which was posed by the learned Single Judge is
as under:
“The next question, however, which is more important is
whether the plaintiff can combine the two causes of action,
one under the Copyright Act and the second under the Act of
1958 in a situation where this Court has the jurisdiction
insofar as cause of action under the Copyright Act is
concerned but has no territorial jurisdiction to entertain the
cause of action relating to Act of 1958.”
Noticing the provisions of Order 2 Rules 2 and 3 of the Code of Civil
Procedure enabling the plaintiff to combine more than one causes of
action, it was opined that the said provisions relate to pecuniary
jurisdiction. The said jurisdiction, however, can be exercised only in
the event the court has otherwise jurisdiction in respect of the
cause of action wherefor the action has been brought.”
35. The question of maintainability was also examined with
reference to jurisdiction in The Premier Automobiles Ltd. v. Kamlakar
Shantaram Wadke & Ors., AIR 1975 SC 2238, it has been held that in
a Civil Court, suit was not maintainable for a decree for permanent
injunction as it had no jurisdiction to grant the relief or even a
temporary relief. The Court held:
“27.…… The better and more reasonable view, therefore, to take is
that all workmen represented by the two plaintiffs sought an order
of injunction in the civil court to prevent an injury which was
proposed to be caused to them in relation to their right under the
Act. Hence a suit for a decree for permanent injunction was not
maintainable in the civil court as it had no jurisdiction to grant the
relief or even a temporary relief.”
(emphasis supplied)
36. In a case, jurisdictional facts, as well as adjudicatory facts, may
arise. When jurisdictional facts to entertain are missing, the
court/tribunal cannot act at all. In the case of adjudicatory facts, the
27
court can proceed with the trial of the case exercising jurisdiction, and
the same implies that the court has the jurisdiction to deal with the
matter, that is called the power to examine on merits. Adjudication is
the power to proceed to consider on merits.
37. In Bhai Jai Kishen Singh v. Peoples Bank of Northern India (in
liquidation) through Bhagwati Shankar, Official Liquidator, AIR 1944
Lah 136, it has been observed that jurisdiction issue is one like
preliminary issue not where the proceedings were dismissed on
merits. In Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors.,
(1974) 3 SCC 415 in the context of word jurisdiction, this Court
observed thus:
“28. We think that neither the decision of this Court in Baidyanath
Panjiar v. Sita Ram Mahto, (1969) 2 SCC 447 which took the view
that violation of Section 23(3) of the 1950 Act in entering or deleting
the names of persons in the electoral rolls after the last date for
making nomination relates to lack of power, nor the decision in
Wopanso v. N.L. Oduya, (1971) 2 SCC 550 and others which also
suggests that where there was lack of power, the question can be
gone into by the Court trying an election petition, can, by analogy,
be extended to an entry in the electoral roll on the basis of a wrong
adjudication of the question of ordinary residence. Though the
dividing line between lack of jurisdiction or power and erroneous
exercise of it has become thin with the decision of the House of
Lords in The Anisminic case, (1967) 3 WLR 382 we do not think that
the distinction between the two has been completely wiped out. We
are aware of the difficulty in formulating an exhaustive rule to tell
when there is lack of power and when there is an erroneous exercise
of it. The difficulty has arisen because the word “jurisdiction” is an
expression which is used in a variety of senses and takes its colour
from its context, (see per Diplock, J., at p. 394 in the Anisminic
case ). Whereas the “pure” theory of jurisdiction would reduce
jurisdictional control to a vanishing point, the adoption of a
narrower meaning might result in a more useful legal concept even
though the formal structure of law may lose something of its logical
symmetry. "At bottom, the problem of defining the concept of
jurisdiction for purpose of judicial review has been one of public
policy rather than one of logic." And viewed from the aspect of
28
public policy as reflected in the provisions of the 1950 and 1951
Acts, we do not think that a wrong decision on a question of
ordinary residence for the purpose of entering a person's name in
the electoral roll should be treated as a jurisdictional error which
can be judicially reviewed either in a civil court or before an election
tribunal.”
(emphasis supplied)
It is observed that expression “jurisdiction” is used in a variety of
senses and takes its colour from its context, in which it is used as
observed in Anisminic Ltd. v. Foreign Compensation Commission,
[1968] 2 Q.B. 862.
38. In Union of India v. Tarachand Gupta and Bros., 1971 (1) SCC
486, in the context of jurisdiction of Civil Court, it has been observed
that it has both a narrow and broader meaning. In the sense of
former, it means the authority to embark upon an enquiry, and latter,
the decision is in noncompliance
with provisions of Act. It is
observed:
"22. The principle thus is that exclusion of the jurisdiction of the
civil courts is not to be readily inferred. Such exclusion, however, is
inferred where the statute gives finality to the order of the tribunal
on which it confers jurisdiction and provides for adequate remedy to
do what the courts would normally do in such a proceeding before
it. Even where a statute gives finality, such a provision does not
exclude cases where the provisions of the particular statute have
not been complied with, or the tribunal has not acted in conformity
with the fundamental principles of judicial procedure. The word
"jurisdiction" has both a narrow and a wider meaning. In the sense
of the former, it means the authority to embark upon an enquiry; in
the sense of the latter, it is used in several aspects, one of such
aspects being that the decision of the tribunal is in noncompliance
with the provisions of the Act. Accordingly, a determination by a
tribunal of a question other than the one which the statute directs it
to decide would be a decision not under the provisions of the Act,
and therefore, in excess of its jurisdiction.”
(emphasis supplied)
39. Again, in Official Trustee, West Bengal v. Sachindra Nath
Chatterjee, AIR 1969 SC 823, it has been observed that before a court
29
can be held to have the jurisdiction to decide a particular matter, it
must not only have the jurisdiction to try the suit brought but must
also have the authority to pass the order sought from it. It should
have the power to hear and decide the issue. The Court observed:
“12. It is plain that if the learned judge had no jurisdiction to pass
the order in question then the order is null and void. It is equally
plain that if he had jurisdiction to pronounce on the plea put
forward before him the fact that he made an incorrect order or even
an illegal order cannot affect its validity. Therefore all that we have
to see is whether Ramfry, J. had jurisdiction to entertain the
application made by the settlor.
13. What is meant by jurisdiction? This question is answered by
Mukherjee, Acting C.J., speaking for the full bench of the Calcutta
High Court in Hirday Nath Roy v. Ramachandra Barna Sarma. ILR
48 Cal 138 = AIR 1921 Cal 84 (FB). At page 146 of the report ILR
(Cal) = (at p.36 of AIR) the learned judge explained what exactly is
meant by jurisdiction. We can do no better than to quote his words:
“In the order of Reference to a Full Bench in the case of
Sukhlal v. Tara Chand, (1905) ILR 33 Cal 68 (FB), it was stated
that jurisdiction may be defined to be the power of a Court to
‘hear and determine a cause, to adjudicate and exercise any
judicial power in relation to it:’ in other words, by jurisdiction
is meant ‘the authority which a court has to decide matters
that are litigated before it or to take cognizance of matters
presented in a formal way for its decision.’ An examination of
the cases in the books discloses numerous attempts to define
the term ‘jurisdiction’, which has been stated to be ‘the power
to hear and determine issues of law and fact’, “the authority by
which the judicial officers take cognizance of and ‘decide
causes’;” ‘the authority to hear and decide a legal controversy’,
“the power to hear and determine the subjectmatter
in
controversy between parties to a suit and to adjudicate or
exercise any judicial power over them”; “the power to hear,
determine and pronounce judgment on the issues before the
Court”; “the power or authority which is conferred upon a
Court by the Legislature to hear and determine causes
between parties and to carry the judgments into effect”; “the
power to enquire into the facts, to apply the law, to pronounce
the judgment and to carry it into execution”.”
(emphasis supplied)
40. In National Thermal Power Corpn. Ltd. v. Siemens
Atkeingesellschaft, (2007) 4 SCC 451, the question came up for
consideration before a Division Bench of the Court concerning what is
30
a jurisdictional question and whether declining to go into the merits of
the claim would amount to a refusal to exercise jurisdiction. The
Court held that declining to go into the merits of a claim in a
particular case may amount to a refusal to exercise jurisdiction. What
is jurisdictional question and jurisdiction was also considered by this
Court. The question of limitation involving the question of jurisdiction
of the Court or Tribunal came up for consideration, as a preliminary
objection was raised as to maintainability of the appeal. The relevant
portion of discussion is extracted hereunder:
“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 AIR
1996 SC 153, 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.”
In a particular sense, therefore, any declining to go into the merits
of a claim could be said to be a case of refusal to exercise
jurisdiction.
18. The expression “jurisdiction” is a word of many hues. Its colour
is to be discerned from the setting in which it is used. ….”
It is apparent that when a claim is dismissed as barred by
limitation, no doubt the refusal is within the realm of exercise of
jurisdiction by the Court or Tribunal. It cannot be said that the Court
has refused to exercise the jurisdiction to go into the merits by a
31
wrong decision dismissing the case on the ground of limitation. In
that context, Pandurang Dhondi Chougule (supra) has been relied upon
which has dealt with the question of jurisdiction under Section 115 of
CPC. This Court has also observed it in National Thermal Power
Corpn. Ltd. (supra) that in the question of jurisdiction, the expression
jurisdiction is a word of many hues and having a different meaning in
which it is used. There is no dispute as to the abovementioned
proposition laid down by this Court. The question in the aforesaid
decision was not relating to jurisdiction to entertain the matter and to
pass decree immune from collateral challenge. Thus, the decision
lends no support to the cause of the respondents.
41. In M.L. Sethi v. R.P. Kapur (supra), the Court observed as under:
“12. …..The jurisdiction of the High Court under Section 115 of the
CPC is a limited one. As long ago as 1884, in Rajah Amir Hassan
Khan v. Sheo Baksh Singh, (1884) LR 11 IA 237, the Privy Council
made the following observation on Section 622 of the former Code of
Civil Procedure, which was replaced by Section 115 of the Code of
1908:
“The question then is, did the Judges of the lower Courts in
this case, in the exercise of their jurisdiction, act illegally or
with material irregularity. It appears that they had perfect
jurisdiction to decide the question which was before them, and
they did decide it. Whether they decided rightly or wrongly,
they had jurisdiction to decide the case; and even if they
decided wrongly, they did not exercise their jurisdiction
illegally or with material irregularity.”
In Balakrishna Udayar v. Vasudeva Aiyar, (1917) LR 44 IA 261, 267
the Board observed:
“It will be observed that the section applies to jurisdiction
alone, the irregular exercise or nonexercise
of it, or the illegal
assumption of it. The section is not directed against
conclusions of law or fact in which the question of jurisdiction
is not involved.”
In N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board,
Madras, (194849)
LR 76 IA 73, the Judicial Committee said that
32
Section 115 empowers the High Court to satisfy itself on three
matters, (a) that the order of the subordinate court is within its
jurisdiction; (b) that the case is one in which the court ought to
exercise jurisdiction; and (c) that in exercising jurisdiction the court
has not acted illegally, that is, in breach of some provision of law, or
with material irregularity, that is, by committing some error of
procedure in the course of the trial which is material in that it may
have affected the ultimate decision. And if the High Court is
satisfied on those three matters, it has no power to interfere
because it differs from the conclusions of the subordinate court on
questions of fact or law. ……
The word “jurisdiction” is a verbal coat of many colours.
Jurisdiction originally seems to have had the meaning which Lord
Reid ascribed to it in Anisminic Ltd . v. Foreign Compensation
Commission , (1969) 2 AC 147, namely, the entitlement "to enter
upon the enquiry in question." If there was an entitlement to enter
upon an enquiry, into the question, then any subsequent error
could only be regarded as an error within the jurisdiction. The best
known formulation of this theory is that made by Lord Darman in R
v . Bolton , (1841) 1 Q.B. 66. He said that the question of jurisdiction
is determinable at the commencement, not at the conclusion of the
enquiry. In Anisminic Ltd. case (supra) Lord Reid said:
“But there are many cases where, although the tribunal had
jurisdiction to enter on the enquiry it has done or failed to do
something in the course of the enquiry which is of such a
nature that its decision is a nullity. It may have given its
decision in bad faith. It may have made a decision which it
had no power to make. It may have failed in course of the
enquiry to comply with the requirements of natural justice. It
may in perfect good faith have misconstrued the provisions
giving it power to act so that it failed to deal with the question
remitted to it and decided some question which was not
remitted to it. It may have refused to take into account
something which it was required to take into account. Or it
may have based its decision on some matter which, under the
provisions setting it up, it had no right to take into account. I
do not intend this list to be exhaustive.”
In the same case, Lord Pearce said:
“Lack of jurisdiction may arise in various ways. There may be
an absence of those formalities or things which are conditions
precedent to the tribunal having any jurisdiction to embark on
an enquiry. Or the tribunal may at the end make an order that
it has no jurisdiction to make. Or, in the intervening stage
while engaged on a proper enquiry, the tribunal may depart
from the rules of natural justice; or it may ask itself the wrong
questions; or it may take into account matters which it was
not directed to take into account. Thereby it would step
outside its jurisdiction. It would turn its inquiry into
something not directed by Parliament and fail to make the
33
inquiry which the Parliament did direct. Any of these things
would cause its purported decision to be a nullity."
The dicta of the majority of the House of Lords in the above case
would show the extent to which ‘lack’ and ‘excess’ of jurisdiction
have been assimilated or, in other words, the extent to which we
have moved away from the traditional concept of "jurisdiction." The
effect of the dicta, in that case is to reduce the difference between
jurisdictional error and error of law within jurisdiction almost to
vanishing point. The practical effect of the decision is that any error
of law can be reckoned as jurisdictional. This comes perilously close
to saying that there is jurisdiction if the decision is right in law but
none if it is wrong. Almost any misconstruction of a statute can be
represented as "basing their decision on a matter with which they
have no right to deal," "imposing an unwarranted condition" or
"addressing themselves to a wrong question." The majority opinion
in the case leaves a Court or Tribunal with virtually no margin of
legal error. Whether there is excess of jurisdiction or merely error
within jurisdiction can be determined only by construing the
empowering statute, which will give little guidance. It is really a
question of how much latitude the court is prepared to allow. In the
end, it can only be a value judgment (see H.N.R. Wade,
"Constitutional and Administrative Aspects of the Anisminic case",
Law Quarterly Review, Vol. 85,1969, p. 198). Why is it that a wrong
decision on a question of limitation or res judicata was treated as a
jurisdictional error and liable to be interfered with in revision? It is
a bit difficult to understand how an erroneous decision on a
question of limitation or res judicata would oust the jurisdiction of
the court in the primitive sense of the term and render the decision
or a decree embodying the decision a nullity liable to collateral
attack. The reason can only be that the error of law was considered
as vital by the court. And there is no yardstick to determine the
magnitude of the error other than the opinion of the Court.”
(emphasis supplied)
It has been laid down that erroneous decision on the question of
res judicata or limitation would not oust the jurisdiction of the Court
nor render the decision a nullity liable to collateral attack. The test of
having no jurisdiction by the Court is that its judgment is amenable to
attack in collateral proceedings.
42. In Budhia Swain & others v. Gopinath Deb and others, (1999) 4
SCC 396 = AIR 1999 SC 2089, the Court examined the issue whether
decree passed by the civil court in a suit which was barred by
34
limitation can be treated to be a nullity or not. It was observed that
since the civil court had the jurisdiction to decide the suit although
filed beyond limitation, the same was not a nullity and observed thus:
“14. A suit or proceeding entertained and decided in spite of being
barred by limitation is not without jurisdiction; at worst it can be a
case of illegality. ….”
Thus, it is apparent that in a case barred by limitation, Court
has jurisdiction to decide the issue. In case it has no jurisdiction, it
cannot decide such an issue on merits at all.
IN RE: JURISDICTION TO ENTERTAIN UNDER SECTION 9A, CPC
43. The word "jurisdiction" in section 9A is qualified with expression
to ‘entertain' the suit. Thus, it is apparent that the scope of Section
9A has been narrowed down by the legislature as compared to the
provisions contained in Order XIV Rule 2(2) by not including the
provisions as to "a bar created by any other law for the time being in
force."
44. Since the expression used in section 9A as incorporated in
Maharashtra, is "jurisdiction to entertain" that is in a narrower sense
and its purport cannot be taken to be comprehensive as laid down in
Foreshore Cooperative Housing Society Limited (supra).
45. When we consider what colour expression "jurisdiction" has in
Section 9A, it is clearly in the context of power to entertain,
jurisdiction takes colour from accompanying word ‘entertain’; i.e. the
35
Court should have jurisdiction to receive a case for consideration or to
try it. In case there is no jurisdiction, court has no competence to
give the relief, but if it has, it cannot give such relief for the reason
that claim is timebarred
by limitation or is barred by the principle of
res judicata or by bar created under any other law for the time being
in force. When a case is barred by res judicata or limitation, it is not
that the Court has no power to entertain it, but it is not possible to
grant the relief. Due to expiry of limitation to file a suit,
extinguishment of right to property is provided under Section 27 of the
Limitation Act. When Court dismisses a suit on the ground of
limitation, right to property is lost, to hold so the court must have
jurisdiction to entertain it. The Court is enjoined with a duty under
Section 3 of the Limitation Act to take into consideration the bar of
limitation by itself. The expression "bar to file a suit under any other
law for the time being in force" includes the one created by the
Limitation Act. It cannot be said to be included in the expression
"jurisdiction to entertain" suit used in Section 9A. The Court has to
receive a case for consideration and entertain it, to look into the facts
constituting limitation or bar created by any other law to give relief, it
has to decide the question on merits; then it has the power to dismiss
the same on the ground of limitation or such other bar created by any
other law. Thus, the meaning to be given to jurisdiction to entertain
in Section 9A is a narrow one as to maintainability, the competence of
36
the court to receive the suit for adjudication is only covered under the
provisions. The word entertain cannot be said to be the inability to
grant relief on merits, but same relates to receiving a suit to initiate
the very process for granting relief.
46. The provision has been carved out under Section 9A, CPC to
decide, question of jurisdiction to entertain, at the stage of deciding
the interim application for injunction and the very purpose of
enactment of the same was that the suits were being instituted
without serving a notice under Section 80, which at the time of initial
incorporation of provisions could not have been instituted without
serving a notice of two months. There was a bar to institute a suit. It
became practice that after obtaining injunction, suit was allowed to be
withdrawn with liberty to file fresh suit after serving the notice. To
take care of misuse of the provisions, Section 9A was introduced in
the year 1970 and had been reintroduced
again in 1977 to consider
question of jurisdiction to entertain at the stage of granting injunction
or setting aside. The provision has been inserted having the narrow
meaning as at the stage of granting ex parte injunction; the question
can be considered. The written statement, setoff
and counterclaim
are not filed, discovery, inspection, admission, production and
summoning of the documents stage has not reached and after the
stages described above, framing of issues takes place under Order
XIV. As per Order XIV Rule 1, issues arise when a material
37
proposition of fact or law is affirmed by the one party and denied by
the other. The issues are framed on the material proposition, denied
by another party. There are issues of facts and issues of law. In case
specific facts are admitted, and if the question of law arises which is
dependent upon the outcome of admitted facts, it is open to the Court
to pronounce the judgment based on admitted facts and the
preliminary question of law under the provisions of Order XIV Rule 2.
In Order XIV Rule 2(1), the Court may decide the case on a
preliminary issue. It has to pronounce the judgment on all issues.
Order XIV Rule 2(2) makes a departure and Court may decide the
question of law as to jurisdiction of the Court or a bar created to the
suit by any law for the time being in force, such as under the
Limitation Act.
47. In a case question of limitation can be decided based on
admitted facts, it can be decided as a preliminary issue under Order
XIV Rule 2(2)(b). Once facts are disputed about limitation, the
determination of the question of limitation also cannot be made under
Order XIV Rule 2(2) as a preliminary issue or any other such issue of
law which requires examination of the disputed facts. In case of
dispute as to facts, is necessary to be determined to give a finding on a
question of law. Such question cannot be decided as a preliminary
issue. In a case, the question of jurisdiction also depends upon the
proof of facts which are disputed. It cannot be decided as a
38
preliminary issue if the facts are disputed and the question of law is
dependent upon the outcome of the investigation of facts, such
question of law cannot be decided as a preliminary issue, is settled
proposition of law either before the amendment of CPC and post
amendment in the year 1976.
48. The suit/application which is barred by limitation is not a
ground of jurisdiction of the court to entertain a suit. If a plea of
adverse possession has been taken under Article 65 of the Limitation
Act, in case it is successfully proved on facts; the suit has to be
dismissed. However, it is not the lack of the jurisdiction of the Court
that suit has to be dismissed on the ground of limitation, but proof of
adverse possession for 12 years then the suit would be barred by
limitation such question as to limitation cannot be decided as a
preliminary issue.
49. What is intended by Section 9A of the Code of Civil Procedure,
1908 (CPC) is the defect of jurisdiction. It may be inter alia territorial
or concerning the subject matter. The defect of jurisdiction may be
due to provisions of the law. In Raghunath Das v. Gokal Chand, AIR
1958 SC 827, the execution of award of the decree was dismissed by
the Court on the ground that decree was a nullity. The Court had no
jurisdiction to pass a decree of the partition of agricultural land. It
held that defect of the jurisdiction in the court that passed decree
became attached to decree itself as dismissal of the suit was on
39
account of the defect of jurisdiction. Thus, in our considered opinion,
it is only the maintainability of the suit before the court which is
covered within the purview of Section 9A
CPC as amended in
Maharashtra.
50. Reliance has been placed on the provisions of Section 3 of the
Limitation Act to submit that the Court cannot proceed with the suit
which is barred by limitation although limitation has not been set up
as a defence. No doubt about it that Section 3 of the Act provides that
subject to the provisions contained in Sections 4 to 24 of the
Limitation Act, every suit instituted, appeal preferred, and the
application made after the prescribed period shall be dismissed, it
nowhere provides that Court has no jurisdiction to deal with the
matter. Until and unless Court has the jurisdiction, it cannot proceed
to dismiss it on the ground of limitation under Section 3.
51. Within the ken of provisions of section 9A, CPC jurisdiction of
the Court to entertain the suit has to be decided without recording of
evidence. Recording of evidence is not contemplated even at the stage
of framing issue under Order XIV Rule 2 much less it can be allowed
at the stage of grant of injunction, it would be the grossest misuse of
the provisions of the law to permit the parties to adduce the evidence,
to prove facts with respect to a preliminary issue of jurisdiction to
entertain a suit. In case it is purely a question of law, it can be decided
within the purview of section 9A of CPC as applicable in Maharashtra.
40
The scope of Section 9A is not broader than Order XIV Rule 2 (2) of the
CPC. The scope is a somewhat limited one. Two fullfledged
trials by
leading evidence are not contemplated in CPC, one of the preliminary
issue and another on other issues. Until and unless the question is
pure of the law, it cannot be decided as a preliminary issue. In our
opinion, a mixed question of law and fact cannot be decided as a
preliminary issue, either under Section 9A or under Order XIV Rule 2
CPC. Before or after its amendment of CPC concerning both
provisions, the position is the same.
IN RE: ORDER XIV RULE 2
52. The expressions used in the Order XIV Rule 2 as incorporated in
the CPC by way of Amendment Act, 1976, firstly deals with the
jurisdiction of the Court or secondly a bar to the suit created by any
law for the time being in force. The expression used in the Order XIV
Rule 2(2)(a) deals with the jurisdiction of the Court.
53. In Sajanbir Singh Anand and others v. Raminder Kaur Anand and
others, 2018 (3) Mh.L.J. 892; the question came up for consideration
as to the period of limitation for filing administration suit. It has been
observed the relief claimed by the plaintiff has to be decided on facts of
the case, and aspect of limitation would have to be considered in the
context. In an administration suit, the Limitation Act, 1963 does not
prescribe specific article for determining the period of limitation.
There is no specific article for determination of the period of limitation.
41
The pleadings and the prayers of a suit for administration would have
to be analysed, and after that, the relevant article is to be made
applicable.
54. The submission was raised that Section 9A is repugnant to
Order XIV Rule 2. We have interpreted Section 9A and we find that
the scope of Section 9A is different as compared to the provisions of
Order XIV Rule 2 and the scope of Section 9A is limited not as
comprehensive as that of Order XIV Rule 2. However, the concept of
Order XIV Rule 2 with respect to what can be treated as preliminary
issue will be applicable under Section 9A only in case question of
“jurisdiction to entertain” arises, i.e., if it can be decided purely as
question of law, at the stage contemplated under Section 9A, not in
case if it is a mixed question of law and fact, no evidence can be
recorded to decide the question under Section 9A, CPC.
55. In Abdul Rahman v. Prasony Bai and another, (2003) 1 SCC 488,
the provisions of Order XIV Rule 2 came up for consideration. Where
facts are admitted, suit can be disposed of on preliminary issue and
no particular procedure need be followed by the Court. It has been
held that in particular, if facts are admitted, the issue of res judicata
and constructive res judicata and also maintainability of the suit
should be decided as a preliminary issue. Following observation is
relevant:
42
“21. For the purpose of disposal of the suit on the admitted facts,
particularly when the suit can be disposed of on preliminary issues,
no particular procedure was required to be followed by the High
Court. In terms of Order 14 Rule 1 of the Code of Civil Procedure, a
civil court can dispose of a suit on preliminary issues. It is neither
in doubt nor in dispute that the issues of res judicata and/or
constructive res judicata as also the maintainability of the suit can
be adjudicated upon as preliminary issues. Such issues, in fact,
when facts are admitted, ordinarily should be decided as
preliminary issues.”
(emphasis supplied)
In case facts are admitted, no doubt about it that under Order
XIV Rule 2, a suit can be decided even as to the question of res
judicata, constructive res judicata, and maintainability. However,
under Section 9A, the only jurisdiction to entertain has to be decided,
where maintainability of the suit is decided concerning the jurisdiction
of the Court as a pure question of law at a preliminary stage. Thus,
the decision in Abdul Rehman v. Prasony Bai (supra) rendered at the
stage of Order XIV Rule 2, has no application to the controversy at
hand.
56. In Gunwantbhai Mulchand Shah v. Anton Elis Farel and others,
(2006) 3 SCC 634, the suit was filed for specific performance. The
Court held that the question of limitation in the facts could not have
been decided as a preliminary issue. The suit could not have been
dismissed as barred by limitation for the relief of specific performance.
Though the Court held that there was jurisdiction, the matter was
remitted to the trial court to decide all the issues, including limitation
after parties adduced evidence. In Indian Bank v. Maharashtra State
Cooperative Marketing Federation Ltd., (1998) 5 SCC 69, it is observed
43
that there is jurisdiction to entertain when the question is of
applicability of Section 10. This Court in Sneh Lata Goel v. Pushplata
and others, (2019) 3 SCC 594 observed that given the provisions of
Section 21 of CPC, no objection as to the place of suing should be
allowed by the appellate court unless there is a consequent failure of
justice. An objection raised in adjudicating court was as to territorial
jurisdiction, which did not travel to the root or to the inherent lack of
jurisdiction of a civil court to entertain the suit. The competence to
try a case has been considered in Hiralal Patni v. Kali Nath, AIR 1962
SC 199 referred to in Sneh Lata Goel (supra), in which this Court has
observed thus:
“13. Subsection
(1) of Section 21 provides that before raising an
objection to territorial jurisdiction before an appellate or revisional
court, two conditions precedent must be fulfilled:
(i) The objection must be taken in the court of first instance at
the earliest possible opportunity; and
(ii) There has been a consequent failure of justice.
This provision which the legislature has designedly adopted would
make it abundantly clear that an objection to the want of territorial
jurisdiction does not travel to the root of or to the inherent lack of
jurisdiction of a civil court to entertain the suit. Hence, it has to be
raised before the court of first instance at the earliest opportunity,
and in all cases where issues are settled, on or before such
settlement. Moreover, it is only where there is a consequent failure
of justice that an objection as to the place of suing can be
entertained. Both these conditions have to be satisfied.
14. The learned counsel appearing on behalf of the respondents has
submitted that the objection as to the lack of territorial jurisdiction
was raised in the written statement before the trial court. But
evidently, the suit was decreed ex parte after the respondents failed
to participate in the proceedings. The provisions of Section 21(1)
contain a clear legislative mandate that an objection of this nature
has to be raised at the earliest possible opportunity before issues
are settled. Moreover, no such objection can be allowed to be raised
44
even by an appellate or revisional jurisdiction, unless both sets of
conditions are fulfilled.”
It is in the context of the inherent lack of jurisdiction to entertain
the suit, the expression has been used in Section 9A.
IN RE: MIXED QUESTION OF LAW AND FACT AND ORDER VII
RULE 11 CPC
57. A ThreeJudge
Bench of this Court in Major S.S. Khanna v. Brig.
F.J. Dhillon, AIR 1964 SC 497, has held that jurisdiction to try issues
of law apart from the issues of fact may be exercised by the Court if
the whole suit may be disposed on the issue of law alone, but the Code
confers no jurisdiction upon the Court to try a suit on the mixed issue
of law and facts as preliminary issues.
58. In Narne Rama Murthy v. Ravula Somasundaram & Ors. (2005) 6
SCC 614, this Court has held that even if it is apparent from the
plaint averment only, that suit is barred by limitation, it can be tried
as a preliminary issue even in the absence of plea of limitation raised
by the defendants. However, in cases where the question of limitation
is a mixed question of fact and law and suit does not appear to be
barred by limitation on the face of it, then the facts necessary to prove
limitation, which have been pleaded have to be proved, on issues
raised and decided on evidence. However, in our considered opinion
question of limitation, in no case, can be said to be a question of
jurisdiction of the Court in the context it has been used in Section 9A
CPC.
45
59. In Satti Paradesi Samadhi and Pillayar Temple v. M. Sankuntala
(Dead) through Legal Representatives and others, (2015) 5 SCC 674, it
has been observed that issue of limitation requiring an inquiry into the
facts, cannot be tried as a preliminary issue. The mixed questions of
law and facts cannot be decided as a preliminary issue.
60. In Ramdayal Umraomal v. Pannalal Jagannathji, 1979 M.P.L.J
736, a Full Bench of Madhya Pradesh High Court has observed that
under Order XIV Rule 2, mixed questions of law and fact requiring
recording of evidence cannot be tried as a preliminary issue. The
issue of jurisdiction can be tried as a preliminary issue when it is an
issue of law requiring no evidence to be adduced. Various High
Courts have taken a similar view in several decisions in Sunni Central
Waqf Board and others v. Gopal Singh Vishrad and others, AIR 1991 All
89, Venkatesh r. Desai v. Smt. Pushpa Hosmani & Ors., ILR 2018 Kar
5095, Prithvi Raj v. Munnalal, 1957 RLW 323, Bhag Singh v. Nek Singh
1994 SCC OnLine P&H 594, State Trading Corporation of India Ltd. v.
Government of the Peoples Republic of Bangladesh, ILR (1997) Del 229,
Naresh Chandra Das v. Gopal Chandra Das, AIR 1991 Cal 237, Taj
Kerala Hotels & Resorts Ltd. v. Easytec India Pvt. Ltd., 2013 SCC
OnLine Ker 20240, Madhabananda Govindasamy v. Manickam & Ors.,
20161L.
W. 49, Angsley Investment Ltd. v. Turus Shipping Service &
Ors., AIR 2007 Guj 23; Chandrama Singh v. (D) through LRs v. Ram
Kishore Agrawal & Ors., 2016 SCC OnLine Chh 1740, Naresh
46
Chandra Gautam v. Chhote Khan, 2003 SCC OnLine Utt 12, Ramagya
Tiwari v. Shib Kumar Sah & Ors., 2018 SCC OnLine Jah 578,
Lalchand Sha & Ors. v. Kalabati Devi & Ors., (2008) 2 Gau LR 561 and
J Mnthamma & Anr. v. Bayya Iiglamma & Ors.
61. In Vaish Aggarwal Panchayat v. Inder Kumar and others, AIR
2015 SC 3357, the question came up for consideration of rejection of
the plaint under Order VII Rule 11 on the ground that same being
barred by limitation. Mere ex facie reading of the plaint, it could not
be held that the suit was barred by time. The question of limitation
becomes a mixed question of facts and law and cannot be decided as a
preliminary issue as the framing of issues and taking evidence was
necessary.
62. In our opinion, it cannot be laid down as proposition of law
under Order VII Rule 11(d) that plaint cannot be rejected as barred by
limitation. It can be said that it is permissible to do so mainly in a
case where the plaint averment itself indicate the cause of action to be
barred by limitation and no further evidence is required to adjudicate
the issue.
63. In Hareendran and others v. Sukumaran and others, (2018) 14
SCC 187, this Court has laid down that question of limitation in the
case being mixed question of law and facts, could not have been
decided as preliminary issue. The provision under which a plaint can
be rejected is provided in Order VII Rule 11(d). The language used in
47
Order VII Rule 11 is where averments made in plaint does not disclose
a cause of action; relief claimed is undervalued, and the plaint is not
corrected in spite of the direction of the Court; plaint is insufficiently
stamped, and in spite of Court's order the plaintiff has failed to supply
the requisite stamp duty; where the suit appears from the statement
in the plaint to be barred by any law; where it is not filed in duplicate;
and where plaintiff fails to comply with the provisions of rule 9. What
is of significance under Order VII Rule 11 is that from the averments
of plaint itself the suit is barred by any law and it would include
limitation also including bar created by any other law for the time
being in force. For the rejection of plaint, averments made by the
defendant in the written statement or otherwise cannot be seen, only
the averments of the plaint are material and can be taken into
consideration and no other evidence.
64. The question concerning Order VII Rule 11 came up for
consideration in Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and
Ors., (2006) 5 SCC 638, as to the determination of the question of
limitation as a preliminary issue. The Court observed that the starting
point of limitation has to be ascertained on facts in every case. A plea
of limitation cannot be decided as an abstract principle of law divorced
from the facts for rejection of the plaint under Order VII Rule 11(d). In
the case of a disputed question of fact, the question of limitation
cannot be decided as a preliminary issue without a decision on facts
48
based on the evidence that has to be adduced by the parties. The
Court has no jurisdiction under Order XIV Rule 2 to decide a mixed
question of law and facts as a preliminary issue. Following
observations have been made:
“13. Subrule
(2) of Order 14 Rule 2 CPC lays down that 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 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. The provisions of this
Rule came up for consideration before this Court in Major S.S.
Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 and it was held as
under (SCR p. 421)
"Under Order 14 Rule 2, Code of Civil Procedure 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 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. The jurisdiction to try issues of law apart from the
issues of fact may be exercised only where in the opinion of the
court the whole suit may be disposed of on the issues of law
alone, but the Code confers no jurisdiction upon the court to
try a suit on mixed issues of law and fact as preliminary
issues. Normally all the issues in a suit should be tried by the
court; not to do so, especially when the decision on issues
even of law depend upon the decision of issues of fact, would
result in a lopsided trial of the suit.”
Though there has been a slight amendment in the language of
Order 14 Rule 2 CPC by the amending Act, 1976 but the principle
enunciated in the abovequoted
decision still holds good and there
can be no departure from the principle that the Code confers no
jurisdiction upon the court to try a suit on mixed issues of law and
fact as a preliminary issue and where the decision on issue of law
depends upon decision of fact, it cannot be tried as a preliminary
issue.”
65. (a) Reliance has been placed on various decisions, under Order
VII Rule 11(d) in which expression has been used that plaint has to be
rejected if any law bars it as per the averments made in the plaint. In
49
Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Lrs., AIR
2019 SC 1430, it was held as under:
"7. Applying the law laid down by this Court in the aforesaid
decisions on exercise of powers under Order 7 Rule 11 of the CPC to
the facts of the case in hand and the averments in the plaint, we are
of the opinion that both the Courts below have materially erred in
not rejecting the plaint in exercise of powers under Order 7 Rule 11
of the CPC. It is required to be noted that it is not in dispute that
the original Plaintiff himself executed the gift deed along with his
brother. The deed of gift was a registered gift deed. The execution of
the gift deed is not disputed by the Plaintiff. It is the case of the
Plaintiff that the gift deed was a showy deed of gift, and therefore
the same is not binding on him. However, it is required to be noted
that for approximately 22 years, neither the Plaintiff nor his brother
(who died on 15.12.2002) claimed at any point of time that the gift
deed was showy deed of gift. One of the executants of the gift deed brother
of the Plaintiff during his lifetime never claimed that the gift
deed was a showy deed of gift. It was the Appellant hereinoriginal
Defendant who filed the suit in the year 2001 for partition, and the
said suit was filed against his brothers to which the Plaintiff was
joined as Defendant No. 10. It appears that the summon of the suit
filed by the Defendant being T.S. (Partition) Suit No. 203 of 2001
was served upon the Defendant No. 10Plaintiff
herein in the year
2001 itself. Despite the same, he instituted the present suit in the
year 2003. Even from the averments in the plaint, it appears that
during these 22 years i.e., the period from 1981 till 2001/2003, the
suit property was mortgaged by the Appellant hereinoriginal
Defendant and the mortgage deed was executed by the Defendant.
Therefore, considering the averments in the plaint and the bundle of
facts stated in the plaint, we are of the opinion that by clever
drafting the Plaintiff has tried to bring the suit within the period of
limitation which, otherwise, is barred by law of limitation.
Therefore, considering the decisions of this Court in the case of T.
Arivandandam (AIR 1977 SC 2421) (supra) and others, as stated
above, and as the suit is clearly barred by law of limitation, the
plaint is required to be rejected in exercise of powers under Order 7
Rule 11 of the CPC.”
65.(b) In N.V. Srinivasa Murthy & others v. Mariyamma (Dead) by
proposed LRs. & Ors., (2005) 5 SCC 548, this Court observed as
under:
“16. The High Court does not seem to be right in rejecting the plaint
on the ground that it does not disclose any "cause of action." In our
view, the trial court was right in coming to the conclusion that
accepting all averments in the plaint, the suit seems to be barred by
50
limitation. On critical examination of the plaint as discussed by us
above, the suit seems to be clearly barred on the facts stated in the
plaint itself. The suit as framed is prima facie barred by the law of
limitation, provisions of the Specific Relief Act as also under Order 2
Rule 2 of the Code of Civil Procedure.”
65.(c) This Court in Suman Devi v. Manisha Devi & others, (2018) 9
SCC 808, observed as under:
“10. The Haryana Panchayati Raj Act, 1994 is a complete code for
the presentation of election petitions. The statute has mandated
that an election petition must be filed within a period of 30 days of
the date of the declaration of results. This period cannot be
extended. The provision of Section 14 of the Limitation Act, 1963
would clearly stand excluded. The legislature having made a specific
provision, any election petition which fails to comply with the
statute is liable to be dismissed. The High Court has failed to notice
both the binding judgments of this Court and its own precedents on
the subject, to which we have referred. The first respondent filed an
election petition in the first instance to which there was an
objection to maintainability under Order 7 Rule 11 CPC. Confronted
with the objection under Order 7 Rule 11, the first respondent
obviated a decision thereon by withdrawing the election petition.
The grant of liberty to file a fresh election petition cannot obviate
the bar of limitation. The fresh election petition filed by the first
respondent was beyond the statutory period of 30 days and was
hence liable to be rejected.”
The decisions described above under Order VII Rule 11, CPC do
not advance the submissions raised on behalf of respondents. In case
averments in the plaint indicate that suit is barred, it is liable to be
rejected before the stage of Section 9A of CPC comes. Thus, the stage
at which Order VII Rule 11(d) has to be applied, is at the threshold
and the scope of Section 9A is somewhat limited and different.
Though the scope of rejection of plaint under Order VII Rule 11(d) is
broad enough which includes rejection of the plaint in case any law
bars it, however, only the averments in the plaint have to be seen,
51
nevertheless Section 9A is limited in its operation as to the jurisdiction
of the Court to entertain a suit.
IN RE: DECISION IN FORESHORE COOPERATIVE HOUSING
SOCIETY LIMITED
66. Now we consider decision relied on Foreshore Cooperative
Housing Society Limited (supra) in which decision of the Court in
Pandurang Dhondi Chougule (supra) and other decisions have been
relied on.
67. In Pandurang Dhondi Chougule (supra), a decision of
Constitution Bench of this Court, the question of “jurisdiction” came
up for consideration in the context of provisions contained in Section
115 of CPC to the extent of revisional powers of the High Court as to
what would constitute an error of question of law. The Court has
observed thus:
“10. Judicial decisions have examined the provisions of S.115 of
the Code on several occasions. While exercising its jurisdiction
under S.115, it is not competent to the High Court to correct errors
of fact however gross they maybe, or even errors of law, unless the
said errors have relation to the jurisdiction of the court to try the
dispute itself. As Cls. (a), (b) and (e) of S.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 S.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 S.115.”
52
The High Court while exercising powers interfered in the
question of adjustment of debt on the ground that the district court
has made wrong construction of particular decree. The question arose
whether the High Court could have corrected such an error in the
exercise of the revisional jurisdiction under Section 115 of CPC. This
Court laid down that the High Court has exceeded its jurisdiction as
the High Court is not competent to correct the error of fact, however,
gross they may be or even errors of law, unless the said errors have
relation to the jurisdiction. In case the Court has exercised
jurisdiction vested in it illegally, or with material irregularity, the High
Court can interfere. Given the context of section 115, CPC, the
Constitution Bench has observed that plea of limitation is a plea of
law, which concerns the jurisdiction of the court which tries the
proceedings. The Constitution Bench has not laid down that question
of limitation, and res judicata have to be tried as a preliminary issue.
It cannot be disputed as observed by this Court that the question of
res judicata and limitation pertains to the question of jurisdiction of
the Court to pass a decree in the proceeding. In case proceeding is
barred by limitation, the Court has no jurisdiction to pass a decree.
The court had inherent jurisdiction and in the course of proceeding
how the jurisdiction is to be exercised and what amounts to a case of
a wrong decision in the course of the exercise of jurisdiction is another
colour in which jurisdictional error has been gauged in Pandurang
53
Dhondi Chougule (supra). It was not a case of want of the existence of
jurisdiction to decide the issue. The question of limitation and res
judicata, are to be decided within the realm of exercise of jurisdiction
following the law. The finding on the pleas mentioned above may oust
the jurisdiction of the Court to pass a decree as other laws bar it.
Thus, these pleas can be termed as concerning with the question of
jurisdiction, in the exercise thereof they have to be decided. The
decision renders no help to espousing the cause of the respondents. In
Foreshore Cooperative Housing Society Limited (supra) the court has
wrongly applied a different colour of jurisdiction used under section
115 CPC which was dealt with in Pandurang Dhondi Chougule case
(supra). It is a mismatch and does not merge with the context of
provisions of section 9A CPC.
68. In Ittyavira Mathai v. Varkey Varkey and Anr., AIR 1964 SC 907,
the question of jurisdiction to try a suit has been distinguished from
the error of jurisdiction committed while exercising the same, came up
for consideration before FourJudge
Bench of this Court. The Court
has observed that decree passed in the suit barred by time cannot be
said to be a nullity as the Court passing the same has the jurisdiction
over the party and the subjectmatter.
A wrong decision is not the one
for which the Court had no jurisdiction. It had jurisdiction over the
subject matter, over the parties and therefore an error of decision
would not make a decree beyond jurisdiction. Section 3 of the
54
Limitation Act also came up for consideration, which would be a
simple error of law. In the said case jurisdictional issue has been
wrongly decided as to limitation. The decision of the Privy Council in
Maqbul Ahmad and others v. Onkar Pratap Narain, AIR 1935 PC 85,
has also been referred to in Ittyavira Mathai (supra) thus:
“8. The first point raised by Mr. Paikedy for the appellant is that
the decree in OS No. 59 of 1093 obtained by Anantha Iyer and his
brother in the suit on the hypothecation bond executed by Ittiyavira
in favour of Ramalinga Iyer was a nullity because the suit was
barred by time. Even assuming that the suit was barred by time, it
is difficult to appreciate the contention of the learned counsel that
the decree can be treated as a nullity and ignored in subsequent
litigation. If the suit was barred by time and yet, the court decreed
it, the court would be committing illegality, and therefore the
aggrieved party would be entitled to have the decree set aside by
preferring an appeal against it. However, it is well settled that a
court having jurisdiction over the subjectmatter
of the suit and the
parties to it, 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. It had the jurisdiction over the
subject matter, and it had the jurisdiction over the party and,
therefore, merely because it made an error in deciding a vital issue
in the suit, it cannot be said that it has acted beyond its
jurisdiction. As has often been said, courts have jurisdiction to
decide right or to decide wrong, and even though they decide wrong,
the decrees rendered by them cannot be treated as nullities.
Learned counsel, however, referred us to the decision of the Privy
Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935
PC 85 and contended that since the court is bound under the
provisions of S.3 of the Limitation Act to ascertain for itself whether
the suit before it was within time, it would act without jurisdiction if
it fails to do so. All that the decision relied upon says is that S.3 of
the Limitation Act is peremptory and that the court has to take
notice of this provision and give effect to it even though the point of
limitation is not referred to in the pleadings. The Privy Council has
not said that where the court fails to perform its duty, it acts
without jurisdiction. If it fails to do its duty, it merely makes an
error of law, and an error of law can be corrected only in the
manner laid down in the Civil Procedure Code. If the party aggrieved
does not take appropriate steps to have that error corrected, the
erroneous decree will hold good and will not be open to challenge on
the basis of being a nullity.”
55
69. The respondents have relied upon the decision in Manick
Chandra Nandy v. Debdas Nandy and others, (1986) 1 SCC 512, in
which again question of exercise of revisional jurisdiction of the High
Court under Section 115 of CPC arose. This Court pointed out the
difference between revisional and appellate jurisdiction. The trial
court held that the application under Rule 13 of Order IX, CPC not to
be barred by limitation. This Court observed that the High Court is
not competent in exercise of its revisional jurisdiction to come to a
different conclusion by examining the facts. Article 123 of the
Limitation Act came up for consideration in the case when the
applicant knew of the passing of the decree. Knowledge of passing of
decree is a question of fact and would be a collateral fact upon which
the determination of the question of jurisdiction of the court would
depend. It was again a case of exercise of jurisdiction by the Court, in
that context, observations have been made about Section 115 which
provides that in case jurisdiction has been exercised illegally or with
material irregularity, the High Court can interfere under Section 115
of CPC, not otherwise. In Manick Chandra Nandy (supra), the
following observations have been made:
“5. We are constrained to observe that the approach adopted by the
High Court in dealing with the two revisional applications was one
not warranted by law. The High Court treated these two
applications as if they were first appeals and not applications
invoking its jurisdiction under Section 115 of the Code of Civil
Procedure. The nature, quality, and extent of appellate jurisdiction
being exercised in the first appeal and of revisional jurisdiction are
very different. The limits of revisional jurisdiction are prescribed
56
and its boundaries defined by Section 115 of the Code of Civil
Procedure. Under that section revisional jurisdiction is to be
exercised by the High Court in a case in which no appeal lies to it
from the decision of a subordinate court if it appears to it that the
subordinate court has exercised a jurisdiction not vested in it by
law or has failed to exercise a jurisdiction vested in it by law or has
acted in the exercise of its jurisdiction illegally or with material
irregularity. The exercise of revisional jurisdiction is thus confined
to questions of jurisdiction. While in a first appeal the court is free
to decide all questions of law and fact which arise in the case, in the
exercise of its revisional jurisdiction the High Court is not entitled to
reexamine or reassess the evidence on record and substitute its
findings on facts for those of the subordinate court. In the instant
case, the respondents had raised a plea that the appellant's
application under Rule 13 of Order IX was barred by limitation.
Now, a plea of 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
determining the correctness of the decision reached by the
subordinate court on such a plea, the High Court may at times have
to go into a jurisdictional question of law or fact, that is, it may have
to decide collateral questions upon the ascertainment of which the
decision as to jurisdiction depends. For the purpose of ascertaining
whether the subordinate court has decided such a collateral
question rightly, the High Court cannot, however, function as a
court of first appeal so far as the assessment of evidence is
concerned and substitute its own findings for those arrived at by
the subordinate court unless any such finding is not in any way
borne out by the evidence on the record or is manifestly contrary to
evidence or so palpably wrong that if allowed to stand, would result
in grave injustice to a party.”
The word jurisdiction has a different contour under Section 115,
CPC. The decision has no relevance as to the interpretation of the
expression ‘jurisdiction to entertain’, the context in which it has been
used in Section 9A.
70. Reliance has also been placed on ITW Signode India Ltd. v.
Collector of Central Excise, (2004) 3 SCC 48, in which it has been
observed that question of limitation involves a question of jurisdiction.
Finding of fact on the question of jurisdiction would be a jurisdictional
57
fact. Such a question has to be determined having regard to the facts
and law. Following observations have been made:
“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 such shortlevy
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 showcause
notice in terms of Rule 10 could have been
issued.”
The above decision is of no help as it dealt with the exercise of
jurisdiction when the Court has it. The observation has been made
not in the context of lack of jurisdiction to entertain a suit.
71. Reliance has further been placed on Kamlesh Babu and others v.
Lajpat Rai Sharma and others, (2008) 12 SCC 577, in which question
arose for consideration as to the finding of the trial court which held
that the suit was barred by limitation though the judgment was
reversed by the First Appellate Court. The previous finding was not
dealt with by the First Appellate Court or the High Court. This Court
held that plea of limitation maybe a mixed question of law and facts.
This Court considered the provisions of limitation and Order VII Rule
11(d) and observed that in case of suit appears from the statement
made in the plaint to be barred by law of limitation, the question of
law as to jurisdiction of a Court goes to the very root of the court’s
jurisdiction to entertain and decide a matter as otherwise decision
58
rendered without jurisdiction will be a nullity. The expression nullity
used by Division Bench in Kamlesh Babu (supra) cannot be said to be
in the context of the limitation, but the question of jurisdiction when
the Court has no power to try the suit. In our opinion, a wrong
decision on the question of limitation will not render judgment a
nullity. With great respect we observe that the expression used by
this Court in para 23 that wrong decision on the question of limitation
would render a judgment of the Court having jurisdiction to decide the
issue as a nullity is ex facie incorrect. It may be a case of illegal
exercise of jurisdiction to decide the issue, but judgment would not be
a nullity.
72. The decision in Indian Farmers Fertilizer Cooperative Limited v.
Bhadra Products, (2018) 2 SCC 534, has been referred by respondents
in which the question came up for consideration as to the issue of the
decision on limitation. This Court has observed that wrong decision
on the question of limitation or res judicata would oust the jurisdiction
of the Court. The scope of jurisdiction under Section 16 of the
Arbitration and Conciliation Act, 1996 has been explained. In our
opinion, the issue of res judicata and limitation can be decided if the
Court has jurisdiction to entertain a suit, not otherwise.
73. The question of jurisdiction came up for consideration in Indian
Farmers Fertilizer Cooperative Limited (supra), in which this Court
observed that same is power of the court to hear and determine a case
59
and to adjudicate or exercise any judicial power and its contextual
interpretation has to be made. The Court observed:
“21. That “jurisdiction” is a coat of many colours, and that the said
word displays a certain colour depending upon the context in which
it is mentioned, is wellsettled.
In the classic sense, in Official
Trustee v. Sachindra Nath Chatterjee, AIR 1969 SC 823,
"jurisdiction" is stated to be: (SCR p. 99: AIR pp. 82728,
para 13)
“13. … ‘In the order of reference to a Full Bench in Sukh Lal
Sheikh v. Tara Chand Ta, ILR (1906) 33 Cal 68, it was stated
that jurisdiction may be defined to be the power of a court to
hear and determine a cause, to adjudicate and exercise any
judicial power in relation to it; in other words, by jurisdiction is
meant the authority which a court has to decide matters that
are litigated before it or to take cognizance of matters presented
in a formal way for its decision. An examination of the cases in
the books discloses numerous attempts to define the term
“jurisdiction”, which has been stated to be “the power to hear
and determine issues of law and fact”, “the authority by which
the judicial officers take cognizance of and decide causes”; “the
authority to hear and decide a legal controversy”, “the power to
hear and determine the subjectmatter
in controversy between
parties to a suit and to adjudicate or exercise any judicial
power over them”; “the power to hear, determine and
pronounce judgment on the issues before the court”; “the
power or authority which is conferred upon a court by the
legislature to hear and determine causes between parties and
to carry the judgments into effect”; “the power to enquire into
the facts, to apply the law, to pronounce the judgment and to
carry it into execution”.’ (Mukherjee, Acting C.J., speaking for
the Full Bench of the Calcutta High Court in Hirday Nath Roy
v. Ram Chandra Barna Sarma, 1920 SCC OnLine Cal 85 : ILR
(1921) 48 Cal 138, SCC OnLine Cal)””
In Indian Farmers Fertilizer Cooperative Limited (supra), it is
further observed that if the Court having jurisdiction, has decided the
question wrongly, it cannot be said that Court had no jurisdiction to
do so and erroneous decision on question of jurisdiction or res
judicata would not oust the jurisdiction of the Court and render the
decision a nullity liable to collateral attack.
60
74. The decisions of Bombay High Court have also been relied upon
by the learned senior counsel appearing for the respondents. In
Smithkline Beecham Consumer Healthcare (supra), the Court has
observed that legislature has used the word in Section 9A in the
broader sense and the Court is required to consider the bar to the
maintainability of the suit under Section 9A of CPC. The High Court
held that it has a broader meaning where a statute bars the suit. In
our opinion, the decision cannot be said to be laying down the law
correctly and as such same is overruled. Reliance has also been
placed on Sudesh v. Abdul Aziz, 2001 (1) Mh.L.J. 324, in which the
High Court has observed that the law has been laid down that any
question of limitation based upon the issue of jurisdiction has to be
decided as a preliminary issue. The view taken by the Court that
since it is a mixed question of law and facts, could not be decided at
the stage, was held to be erroneous under Section 9A. The decision in
Sudesh v. Abdul Aziz (supra) cannot be said to be laying down the law
correctly and is as a result of this overruled.
75. Reliance has been placed on the decision of Shraddha Associates
v. St. Patrick’s Town Cooperative
Housing Society Ltd., 2003 (2)
Mh.L.J. 219, wherein a view has been taken that issue regarding
limitation can be decided as a preliminary issue. Observations made
in Shraddha Associates (supra) about the question of limitation for
Section 9A cannot be said to be laying down the correct proposition of
61
law. Similar view taken in Foreshore Cooperative Housing Society
Limited v. Praveen D. Desai, (2009) 1 AIR Bom R 477, Royal Palms
(India) P. Ltd. v. Bharat Shah, (2009) 2 Bom CR 622, Mukund Ltd. v.
MIAL, 2011 (2) Mh.L.J. 936, Jagshi Shah v. Shaan Builders, (2012) 3
Bom CR 770, Ferani Hotels P. Ltd. and another v. Nusli Neville Wadia
and others, 2012 SCC OnLine Bom 1994, Naresh Lachnmandas
Aswani v. Haridas Aswani and others, 2013 SCC OnLine Bom 1368
and Union of India and others v. N.K. Bhog and others, 2015 SCC
OnLine Bom 664, cannot be said to be laying down the law correctly in
regard to scope of Section 9A CPC as applicable in Maharashtra.
IN RE: LITERAL INTERPRETATION
76. The learned counsel appearing for the respondents urged that
the Court cannot twist the clear language of the enactment to avoid
any real or imaginary hardship which such literal interpretation may
cause. Reliance has also been placed on Rohitash Kumar and others
v. Om Prakash Sharma and others, (2013) 11 SCC 451, in which
following observations have been made:
“23. There may be a statutory provision, which causes great
hardship or inconvenience to either the party concerned, or to an
individual, but the court has no choice but to enforce it in full
rigour. It is a wellsettled
principle of interpretation that hardship or
inconvenience caused cannot be used as a basis to alter the
meaning of the language employed by the legislature if such
meaning is clear upon a bare perusal of the statute. If the language
is plain and hence allows only one meaning, the same has to be
given effect to, even if it causes hardship or possible injustice. [Vide
CIT (Ag) v. Keshab Chandra Mandal AIR 1950 SC 265 and D.D.
Joshi v. Union of India (1983) 2 SCC 235.]
62
24. In Bengal Immunity Co. Ltd. v. State of Bihar AIR 1955 SC 661
(SCC p. 685, para 43) it was observed by a Constitution Bench of
this Court that, if there is any hardship, it is for the legislature to
amend the law, and that the court cannot be called upon to discard
the cardinal rule of interpretation for the purpose of mitigating such
hardship. If the language of an Act is sufficiently clear, the court
has to give effect to it, however inequitable or unjust the result may
be. The words, "dura lex sed lex," which mean "the law is hard, but
it is the law" may be used, to sum up, the situation. Therefore, even
if a statutory provision causes hardship to some people, it is not for
the court to amend the law. A legal enactment must be interpreted
in its plain and literal sense, as that is the first principle of
interpretation.
25. In Mysore SEB v. Bangalore Woollen Cotton & Silk Mills Ltd. AIR
1963 SC 1128 (AIR p. 1139, para 27) a Constitution Bench of this
Court held that "inconvenience is not" a decisive factor to be
considered while interpreting a statute. In Martin Burn Ltd. v.
Corpn. of Calcutta AIR 1966 SC 529, this Court, while dealing with
the same issue observed as under (AIR p. 535, para 14)
“14. … A result flowing from a statutory provision is never an
evil. A court has no power to ignore that provision to relieve
what it considers a distress resulting from its operation. A
statute must, of course, be given effect to whether a court likes
the result or not."
(See also CIT v. Vegetables Products Ltd. (1973) 1 SCC 442 and Tata
Power Co. Ltd. v. Reliance Energy Ltd.(2009) 16 SCC 659)
26. Therefore, it is evident that the hardship caused to an
individual, cannot be a ground for not giving effective and
grammatical meaning to every word of the provision if the language
used therein is unequivocal.
Addition and subtraction of words
27. The court has to keep in mind the fact that, while interpreting
the provisions of a statute, it can neither add, nor subtract even a
single word. The legal maxim “A verbis legis non est recedendum"
means, "from the words of law, there must be no departure." A
section is to be interpreted by reading all of its parts together, and it
is not permissible to omit any part thereof. The court cannot
proceed with the assumption that the legislature, while enacting the
statute has committed a mistake; it must proceed on the footing
that the legislature intended what it has said; even if there is some
defect in the phraseology used by it in framing the statute, and it is
not open to the court to add and amend, or by construction, make
up for the deficiencies, which have been left in the Act. The Court
can only iron out the creases, but while doing so, it must not alter
the fabric, of which an Act is woven. The Court, while interpreting
statutory provisions, cannot add words to a statute, or read words
into it which are not part of it, especially when a literal reading of
the same produces an intelligible result. (Vide Nalinakhya Bysack v.
63
Shyam Sunder Haldar, AIR 1953 SC 148, Sri Ram Ram Narain
Medhi v. State of Bombay, AIR 1959 SC 459, M. Pentiah v. Muddala
Veeramallappa, AIR 1961 SC 1107, Balasinor Nagrik Coop. Bank
Ltd. v. Babubhai Shankerlal Pandya (1987) 1 SCC 606 and Dadi
Jagannadham v. Jammulu Ramulu, (2001) 7 SCC 71. SCC pp. 7879,
para 13.)
28. The statute is not to be construed in light of certain notions that
the legislature might have had in mind, or what the legislature is
expected to have said, or what the legislature might have done, or
what the duty of the legislature to have said or done was. The
courts have to administer the law as they find it, and it is not
permissible for the court to twist the clear language of the
enactment in order to avoid any real or imaginary hardship which
such literal interpretation may cause.
29. In view of the above it becomes crystal clear that under the garb
of interpreting the provision, the court does not have the power to
add or subtract even a single word, as it would not amount to
interpretation, but legislation.”
Further, reliance has been placed on Nalinakhya Bysack v.
Shyam Sundar Haldar, AIR 1953 SC 148. Following is the relevant
observation made:
“(9)…It must always be borne in mind, as said by Lord Halsbury in
Commissioner for Special Purposes of Income Tax v. Pemsel, (1891)
A.C. 531 (G) that it is not competent to any court to proceed upon
the assumption that the legislature has made a mistake. The Court
must proceed on the footing that the legislature intended what it
has said. Even if there is some defect in the phraseology used by the
legislature, the court cannot, as pointed out in Crawford v. Spooner,
6 MOO. P.C. 1(H) aid the legislature's defective phrasing of an Act or
add and amend or, by construction, make up deficiencies which are
left in the Act. Even where there is a casus omissus, it is, as said by
Lord Russell of Killowen in Hansraj Gupta v. Official Liquidator of
Dehra DunMussoorie
Electric Tramway Co., Ltd., AIR 1933 P.J. 63
(I) for others than the courts to remedy the defect. In our view it is
not right to give to the word “decree” a meaning other than its
ordinary accepted meaning and we are bound to say, in spite of our
profound respect for the opinions of the learned Judges who
decided them, that the several cases relied on by the respondent
were not correctly decided.”
There is no dispute with the propositions described above;
however, when literal meaning in Section 9A, CPC is taken, it is

apparent that expression jurisdiction has been used in the company to
entertain. Both the expressions taken together have to be given the
meaning i.e., the Court should have the power or inherent jurisdiction
to receive a suit for consideration to initiate a trial. When we test on
the anvil of hardship caused by the exclusion of question of limitation
from the jurisdiction to entertain, being tested in the right spirit, it
rebounds upon to negate the submission.
CONCLUSION
77.(a) Given the discussion above, we are of the considered opinion
that the jurisdiction to entertain has different connotation from the
jurisdictional error committed in exercise thereof. There is a difference
between the existence of jurisdiction and the exercise of jurisdiction.
The expression jurisdiction has been used in CPC at several places in
different contexts and takes colour from the context in which it has
been used. The existence of jurisdiction is reflected by the fact of
amenability of the judgment to attack in the collateral proceedings. If
the court has an inherent lack of jurisdiction, its decision is open to
attack as a nullity. While deciding the issues of the bar created by the
law of limitation, res judicata, the Court must have jurisdiction to
decide these issues. Under the provisions of section 9A and Order XIV
Rule 2, it is open to decide preliminary issues if it is purely a question
of law not a mixed question of law and fact by recording evidence. The

decision in Foreshore Cooperative Housing Society Limited (supra)
cannot be said to be laying down the law correctly. We have
considered the decisions referred to therein, they are in different
contexts. The decision of the Full Bench of the High Court of Bombay
in Meher Singh (supra) holding that under section 9A the issue to try a
suit/jurisdiction can be decided by recording evidence if required and
by proper adjudication, is overruled. We hold that the decision in
Kamlakar Shantaram (supra) has been correctly decided and cannot
be said to be per incuriam, as held in Foreshore Cooperative Housing
Society Limited (supra).
77.(b) Section 2 of Maharashtra Second Amendment Act, 2018 which
provides that where consideration of preliminary issue framed under
section 9A is pending on the date of commencement of the CPC, the
said issue shall be decided and disposed of by the court under section
9A as if the provision under section 9A has not been deleted, does not
change the legal scenario as to what can be decided as a preliminary
issue under section 9A, CPC, as applicable in Maharashtra. The
saving created by the provision of section 2 where consideration of
preliminary issue framed under section 9A is pending on the date of
commencement of the Code of Civil Procedure (Maharashtra
Amendment) Act, 2018, can be decided only if it comes within the
parameters as found by us on the interpretation of section 9A. We
reiterate that no issue can be decided only under the guise of the

provision that it has been framed under section 9A and was pending
consideration on the date of commencement of the (Maharashtra
Amendment) Act, 2018. The reference is answered accordingly.
78. Let the matters be placed before an appropriate Bench for
consideration on merits.
....………………………..J.
(Arun Mishra)
…………….……………..J
(M.R. Shah)
New Delhi; ..…………………………J.
October 4, 2019. (B.R. Gavai)
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