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

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. 

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.
Citation: 2020(2) MHLJ 469

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Leading judgment on S 9A of CPC(Maharashtra Amendment)

 In my view,

(i) the four classes of litigants culled out in the referral order are the possible outcome of the Second Amendment Act.

(ii) The second Amendment Act substitutes only clause (1) of Section 3  of the First Amendment Act w.e.f. 27th June, 2018.

(iii) The Second Amendment Act has no bearing over clauses- (2), (3) and (4) of the First Amendment Act, except matters remanded in terms of proviso to clause (3) of Section 3 of the First Amendment Act.

(iv) The provisions contained in clauses (2), (3) and (4) of the First Amendment Act shall continue to apply to the matters falling under these Clauses, except those covered under proviso to Clause (3).

BOMBAY HIGH COURT

Shabbir Ibrahim Mestry And Anr vs Anjum Rahim Mestry And Ors on 7 August, 2019

Bench: S. K. Shinde

 WRIT PETITION NO. 12418 OF 2015

Citation: 2020(2) MHLJ 374

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

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

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

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

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

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

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

Paresh Kapadia  Vs Sandeep Runwal 


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

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Deletion of section 9A of CPC in its application to State of Maharashtra

First Amendment https://drive.google.com/file/d/1pX4sWaPiY9wbs2OL4Q4-UEbu8BSSXB1-/view?usp=sharing
Second Amendment  https://drive.google.com/file/d/11ciAXlGYFxgzx4o0JlSmHZ_7u9f9JAAq/view?usp=sharing

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Whether order passed in application for temporary injunction U/S 9A(2) of CPC is appealable?

Keeping the above principle in mind it has to be held that the prayer for temporary injunction made by the plaintiff in the application (Exh. 50) pending determination of the issue as to the jurisdiction of the Court is nothing but the interim relief sought in aid of the final relief prayed for by the plaintiff by the application (Exh. 37). In the application (Exh. 37), the plaintiff prayed for interim order restraining the defendants from undertaking any construction over the suit property. By the application (Exh. 50) the plaintiff sought the same interim relief restraining the defendant from undertaking any construction over the suit property till adjudication of the application (Exh. 13) filed by the defendant. It is clear that the plaintiff had filed application (Exh. 50) only to seek interim relief pending the adjudication of the objection raised by the defendant that the Court has no jurisdiction to entertain and decide the civil suit. If examined from this angle, I am of the view that separate application under Section 9A(2) of the Code of Civil Procedure is not required and the Court can grant interim relief in terms of the prayer made in the substantive application filed under Order 39 of the Code of Civil Procedure till adjudication of the issue of jurisdiction of the Court to entertain and decide the civil suit. Therefore, the order passed on application (Exh. 50), which, though styled as application under Order 9A(2) read with Section 151 of the Code of Civil Procedure, is in effect an order passed under Order 39 of the Code of Civil Procedure and it will be appealable under Order 43 Rule 1(r) of the Code of Civil Procedure.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 7884 of 2017

Decided On: 04.01.2018

Anand Vs. Shewalkar Developers Ltd.

Hon'ble Judges/Coram:

Z.A. Haq, J.

Citation: 2018 (2) MHLJ 381

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Whether court can grant injunction even if there is no application for injunction?

Learned counsel for the petitioner states that the petitioner
has no objection to the impugned order, by which the preliminary
issue   has   been   framed.   However,   the   petitioner   is   aggrieved   by
denial of interim relief, which, the petitioner is entitled to press in
terms of Section 9A(2) of the CPC.
3] In this case, the impugned order does not reject any interim
relief. All that, learned Trial Judge has observed that there was no
application   for   interim   relief   and   in   the   absence   of   any   such
application, there is no question of consideration of any prayer for

interim relief. Learned counsel for the petitioner points out that in
the reply filed to the motion for framing of preliminary issue, the
petitioner had applied for interim relief. 
4] From the perusal of the reply, there does not appear to be any
such prayer. In any case, it is only appropriate that the petitioner, if,
is   seriously   interested   in   any   interim   relief   should   take   out   an
appropriate   application,   which   can   always   be   considered   in
accordance with law by learned Trial Court. Accordingly, there is
absolutely no case is made out to interfere with the impugned order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE  JURISDICTION
 WRIT PETITION NO. 8396 OF 2017
Shadaab S. Patel  vs. Oscar Builders Pvt. Ltd. and anr.
   
CORAM :  M. S. SONAK, J.
DATE     :    18 SEPTEMBER 2017.

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Whether a person can be held guilty for violation of interim orders passed by court which has no jurisdiction to try said case?

The learned counsel for the Defendants 1 and 2 submitted that this is not a proceeding for contempt but a proceeding under Rule 2-A of Order 39 of the Civil Procedure Code. Learned counsel submitted that proceedings under Order 39 Rule 2-A are a part of the coercive process to secure obedience to its injunction and that once it is found that the Court has no jurisdiction, question of securing obedience to its orders any further does not arise. Learned counsel also submitted that enforcing the interim order after it is found that the Court had no jurisdiction to try the said suit would not only be unjust and illegal but would also reflect adversely upon the dignity and authority of the Court. It is also suggested that the plaintiff had instituted the present suit in the Civil Court knowing full well that it had no jurisdiction to try it . It is not possible to agree with any of these submission not only on principle but also in the light of the specific provision contained in Section 9-A of Code of Civil Procedure (Maharashtra Amendment). In the light of the said provision, it would not be right to say that the Civil Court had no jurisdiction to pass interim order or interim injunction, as the case may be, pending decision on the question of jurisdiction. The orders made were within the jurisdiction of the Court and once this is so, they have to be obeyed and implemented. It is not as if the defendants are being sought to be punished for violations committed after the decision of the High Court on the question of jurisdiction of the Civil Court. Here the defendants are sought to be punished for the disobedience and violation of the order of injunction committed before the decision of the High Court in Vishanji Virji Mepani. According to Section 9-A, the Civil Court- and the High Court - did have the power to pass interim orders until that decision. If they had that power they must also have the power to enforce them. In the light of the said provision, it cannot also be held that those orders could be enforced only till the said decision but not thereafter. The said decision does not render them (the interim orders passed meanwhile) either non-est or without jurisdiction. Punishing the defendants for violation of the said order committed before the said decision (Vishanji Virji Mepani) does not amount, in any event, to enforcing them after the said decision. Only the orders are being passed now. The violations are those committed before the said decision.

The correct principle, therefore, is the one recognised and reiterated in Section 9-A - to wit, where an objection to jurisdiction of a civil court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the court from passing any interim orders. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. the interim orders so passed are orders within jurisdiction when passed and effective till the court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situation, it would be its duty to modify such orders or make appropriate directions. For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case, the court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But this power or obligation has nothing to do with the proposition that while in foce, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the court on the question of Jurisdiction.

Supreme Court of India

Tayabbhai M. Bagasarwalla & ... vs Hind Rubber Industries Private ... on 19 February, 1997

Bench: B.P. Jeevan Reddy, Suhas C. Sen

Citation:(1997)3 SCC 443,[1997]2SCR152

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What is distinction between adjudication under S 9A of CPC and O 7 R11 of CPC?

 Hence, as indicated hereinabove, the sum and substance of
the case of the Plaintiff is that the Defendants i.e. Defendant Nos.1 and 2
have jointly conspired to grab the properties of the Plaintiff at throw away
prices to the loss of the Plaintiff. As indicated above, though the averments
revolving around the conduct of the Defendant No.1 are appearing in the
plaint   significantly   in   the   adjudication   of   the   application   filed   under

Section 9A, no evidence was led by the Plaintiff. The Trial Court has
proceeded on a totally erroneous basis by accepting the averments made
in the plaint when the same have not been supported by any evidence led
by the Plaintiff. The averments which revolve around the conduct of the
Defendant No.1 could not have been accepted by the Trial Court without
the same being supported by any evidence of the Plaintiff. In so far as
Section 9A is concerned, it is well settled that the adjudication of the
preliminary issue framed under Section 9A is in the nature of a mini trial
as the decision rendered on the jurisdictional issue stands concluded and
is no more open for adjudication in the suit. The Trial Court did not
proceed on the basis that in the instant case the application was under
Section 9A but erroneously proceeded on the basis as if the application
was under Order VII Rule (11)(d) by accepting the averments in the plaint
and held that since it is the case of the Plaintiff that there is conspiracy, the
suit in  question  would  fit  within   the  exception  carved out  in  Mardia
Chemicals Limited's case (supra) and would therefore be maintainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.386 OF 2015
ICICI Bank Limited 
V
 Anil Printers Limited 
CORAM  :  R.M. SAVANT, J.
DATE      :  8th OCTOBER, 2015
Citation:2016(5) ALLMR695

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What consideration to be kept in mind while granting interim relief as per S 9A(2) of CPC(Maharashtra amendment)?

What should be the considerations in deciding the application filed under Section 9A(2) of the Code is the limited issue to be addressed in the present petition.

9) Once an objection is raised as regards to the jurisdiction of the Court to entertain and decide the suit, it becomes imperative for the said Court in view of the mandate of Section 9A(1)of the Code to decide the said objection as a preliminary issue before granting or setting aside the order granting the interim relief.

10) The question arises what would be the course open for the plaintiff if his prayer for interim relief is not likely to be considered till the Court determines the issue of jurisdiction. Clause (2) of Section 9-A takes care of such a situation under which even during this interim period till adjudication of the preliminary issue, the Court is empowered to grant interim relief purely on interim basis. A mere objection to the jurisdiction does not instantly disable the Court from passing any interim order as may be called for in the facts and circumstances of the case.

11) The next question crops up whether the same principles would apply and the same tests to be applied while granting or refusing the relief as prayed under section 9-A(2) as are applied ingranting or refusing the reliefs prayed for under Order 39 Rule 1 of the Code? The answer in my opinion is "No". I however do not mean to say that such interim protection is to be invariably given as of right. What is contemplated by Clause (2) is that if the exigencies of the situation impress the Court that either of the sides needs to be protected, without wasting any time, however short it may, which may be consumed for determining the said preliminary issue, then the Court may grant such an interim relief as it thinks proper. No deeper scrutiny is thus required while granting interim relief under this Clause. The interim order so passed undoubtedly comes to an end with the decision of the Court on the point of jurisdiction. It is only after the affirmative decision on the issue of jurisdiction that the Court gets vested with the power to grant interim relief or set aside the order granting interim relief as the case may be. As such, while passing the order under Section 9A(2) of the Code, it is not the requirement of the law that there shall be a deeper scrutiny whether all the three ingredients i.e. prima facie case;

balance of convenience and irreparable loss, exist or not. If the Court chooses to adopt such course it would amount to decide the interim application without first deciding the issue of jurisdiction which is impermissible as provided under Section 9-A(1) of the Code and nothing would then remain to be considered at the hearing of the interim relief application.

12) In the instant matter, the trial court is noticed to have committed such mistake.

Perusal of the impugned order shows that when the trial court was supposed to consider the application under Section 9-A(2) limited to the extent whether till decision of the application under Section 9-A, the plaintiff was liable to be given any protection from the apprehended action, the trial court indulged in a deeper scrutiny by framing points as if it was deciding the interim application. The Trial Court has utterly failed in understanding the import of the provisions made under Section 9-A(2) of the Code. Such interim and most temporary protection, in my opinion, can only be refused if the Court finds that there is absolutely no case, even prima facie, for grant of such relief and more importantly if grant of such relief is likely to result in causing irreparable loss to the party opposing for grant of such relief.

Bombay High Court

Madhu Ramesh Jain vs The State Of Maharashtra And ... on 6 June, 2016

Bench: P.R. Bora

Citation: 2016 SCC On Line Bom 5462 
 (W.P.No.9256 of 2015)

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Whether S 9A of CPC is applicable to proceeding U/S 34 of Arbitration Act 1996?

As   indicated   above,   the   two   objections   on   the   ground   of
limitation as also on the ground of maintainability of the suit before the
Learned Principal District Judge, Nashik were raised by invoking Section
9A of the CPC. The question therefore arises is whether an application
under Section 9A of the CPC is maintainable in a proceedings filed under
Section 34 of the 1996 Act. It is trite that the 1996 Act is a self contained

Code   which   governs   the   procedure   for   arbitration   and   sets   out   the
remedies which are available to the parties. There is no provision in the
1996 Act which indicates that Section 9A of the CPC is applicable. The
Learned Counsel appearing for the Petitioners fairly conceded to the said
position. However, the Learned Counsel sought to place reliance on the
judgment of the Apex Court reported in AIR 2002 SC 2308 in the matter
of M/s. I.T.I. Vs. M/s. Siemens Public Communications Network Ltd.,
wherein the Apex Court has held that an order passed by the District Court
in an Appeal filed under Section 37 of the Arbitration and Conciliation Act
is revisable under Section 115 of the CPC. The Learned Counsel also
sought to  place  reliance   on   the  judgment of  a Division  Bench  of   the
Andhra Pradesh High Court reported in 2004(2) R.A.J. 659 in the matter
of B. Rama Swamy Vs. B. Ranga Swamy, wherein the Division Bench of
the Andhra Pradesh High Court held that the application for restoration of
a proceeding under Section 34 can be filed. The Division Bench observed
that the Civil Court has all the powers under the CPC to dispose of an
Appeal or a Petition filed under Section 34 of the CPC. In my view, the said
judgments  do not further  the  case  of the  Petitioners in  so far  as the
applicability of Section 9A is concerned. In so far as a proceeding or a
Petition under Section 34 of the said Act is concerned, the same is as and
by way of a remedy to a party aggrieved by the Award. There is nothing in

Section 34 or any other provision of the said Act to indicate that Section
9A   of   the   CPC   applies   and   that   a   plea   of   the   maintainability   of   the
application or proceeding under Section 34 can be raised. In so far as the
judgment of the Apex Court in M/s. I.T.I. (Supra) is concerned, the Apex
Court was concerned with a challenge to an order passed in an Appeal
filed under Section 37 of the 1996 Act and it is in the said context that the
Apex Court observed that remedy by way of a Civil Revision is not barred.
In so far as the judgment of the Division Bench of the Andhra Pradesh
High Court in B. Rama Swamy's case (Supra) is concerned, the facts in the
said case were that the Petition under Section 34 of the Arbitration and
Conciliation   Act   was   dismissed   for   default   and   the   issue   before   the
Division   Bench   of   the   Andhra   Pradesh   High   Court   was   whether   an
application for restoration is maintainable.  It is in the said facts that the
Division Bench of the Andhra Pradesh High Court held that the relevant
provisions of the CPC are applicable. However in so far as Section 9A is
concerned it gives an avenue to a party to question the maintainability of a
proceeding on the point of jurisdiction it therefore cannot be invoked
unless so provided. As indicated herein above there is nothing in the 1996
Act to indicate that the said provision applies to a Petition filed under
Section 34. Hence the objection on the ground of limitation would have to
be considered at the hearing of the Petition under Section 34. In my view

the applications Exhs.12, 13 and 14 filed under Section 9A were therefore
not maintainable and since the applications are not maintainable, the
adjudication pursuant thereto would be of no consequence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2379 OF 2011
 Hariprasad Mohanlal Soni, 
Versus
Malegaon Municipal Corporation, 
CORAM  :  R.M. SAVANT, J.
DATE      :  24th FEBRUARY, 2015
Citation:AIR 2016 Bom178

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Whether violation of interim orders passed by court is not punishable if it is subsequently found that court had no jurisdiction to entertain suit?

The next thing to be noticed is that certain interim orders were asked for and were granted by the Civil Court during this period. Would it be right to say that violation of and disobedience to the said orders of injunction is not punishable because it has been found later that the Civil Court had not jurisdiction to entertain the suit. Mr. Sorabjee suggests that saying so would be subversive of the Rule of Law and would seriously erode the majesty and dignity of the courts. It would mean, suggests learned Counsel, that it would be open to the defendants-respondents to decide for themselves whether the order was with or without jurisdiction and act upon that belief. This can never be, says the learned Counsel. He further suggests that if any party thinks that an order made by the Civil Court is without jurisdiction or is contrary to law, the appropriate course open to him is to approach that court with that plea and ask for vacating the order. But it is not open to him to flout the said order assuming that the order is without jurisdiction. It is this principle which has been recognised and incorporated in Section 9-A of Civil Procedure Code (inserted by Maharashtra Amendment Act No. 65 of 1977), says Mr. Sorabjee. Section 9-A reads as follows:

9-A. Where by an application for interim relief is sought or is sought to be set aside in any suit and objection to jurisdiction is taken, such issue to be decided by the Court as preliminary issue at hearing of the application.
(1) If, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of injunction, appointment of a receiver or otherwise, made in any suit, an objection for the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in Sub-section (1), at the hearing of any such application, the Court may grant such interim relief as if may consider necessary pending determination by it of the preliminary issue to the jurisdiction.

16. According to this section, if an objection is raised to the jurisdiction of the court at the hearing of an application for grant of, or for vacating, interim relief, the court should determine that issue in the first instance as a preliminary issue before granting or setting aside the relief already granted. An application raising objection to the jurisdiction to the court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in Sub-rule (1) does not preclude the court from granting such interim relief as it may consider necessary pending the decision on the question of jurisdiction. In our opinion, the provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the court does not become helpless forthwith - nor does it become incompetent to grant the interim relief. It can. At the same time, it should also decide the objection to jurisdiction at the earlier possible moment. This is the general principle and this is what Section 9-A reiterates. 

Whether person who disobeys interim injunction made by Civil Court can be punished under Order 39 Rule 2-A where it is ultimately found that Civil Court had no jurisdiction to entertain and try suit - mere objection to jurisdiction does not instantly disable Court from passing interim Orders - interim Orders comes to end when it is found that Court had no jurisdiction - violation of interim Order can be punished even after question of jurisdiction was decided against plaintiff provided violation is committed before decision of Court on question of jurisdiction.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 16662-66 of 1996

Decided On: 19.02.1997

Tayabbhai M. Bagasarwalla and another  Vs. Hind Rubber Industries Pvt. Ltd. etc.

Hon'ble Judges/Coram:
B.P. Jeevan Reddy and S.C. Sen. JJ.

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Whether S 9A of CPC(Maharashtra amendment) is applicable in proceeding under S 34 of Arbitration Act 1996?

As indicated above, the two objections on the ground of limitation as also on the ground of maintainability of the suit before the Learned Principal District Judge, Nashik were raised by invoking Section 9A of the CPC. The question therefore arises is whether an application under Section 9A of the CPC is maintainable in a proceedings filed under Section 34 of the 1996 Act. It is trite that the 1996 Act is a self contained Code which governs the procedure for arbitration and sets out the remedies which are available to the parties. There is no provision in the 1996 Act which indicates that Section 9A of the CPC is applicable. 

Equivalent Citation: 2015(3)ALLMR64, 2015(4)MhLj406

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2379, 2380 and 2381 OF 2011

Decided On: 24.02.2015

Appellants: Hariprasad Mohanlal Soni and Ors.
Vs.
Respondent: Malegaon Municipal Corporation

Hon'ble Judges/Coram:R.M. Savant, J.

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

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

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

Foreshore Co-operative Housing Society Limited Vs  Praveen D.Desai


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

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Whether Issue of limitation can be decided as preliminary issue as per S 9-A of CPC Maharashtra amendment?

A perusal of the Statement of Object and
Reasons of the Amendment Act would clarify that
Section 9A talks of maintainability only on the
question of inherent jurisdiction and does not
contemplate issues of limitation. Section 9A has
been inserted in the Code to prevent the abuse of
the Court process where a plaintiff drags a

defendant to the trial of the suit on merits whenthe jurisdiction of the Court itself is doubtful.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7732 of 2011
Foreshore Co-operative Housing Society Limited
versus
Praveen D.Desai (Dead) thr. Lrs. and others
Citation;2015(3) MHLJ 315 SC

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Whether court can set aside issues framed by lower court in revision if parties were not heard prior to framing of issues?

Rule 5 of Order XIV of the C.P.C. amply empowers the Court to amend or strike out issues as and when required during the pendency of the suit. The powers given to the Court in that regard undoubtedly are to be exercised based on the materials available before the Court and which can be utilised for the purpose of framing or re-framing of the issues. It is primarily for the Court to apply its mind to the pleadings and the other materials, as specified in Rule 3 of Order XIV for the purpose of framing of the issues. Undoubtedly, the parties and their Advocates are not forbidden from assisting the Court in matter of framing of the issues. However, no party as a matter of right can insist for being heard in the matter prior to the framing or re-framing of the issues by the Court. Framing of the issues is an obligation of the Court in order to find out the exact nature of the controversy and to narrow down the scope of the dispute between the parties so as to enable both the parties to the proceedings to know the exact nature of the case which they are required to meet in the proceedings.

IN THE HIGH COURT OF BOMBAY

Civil Revision Appln. No. 752 of 2002

Decided On: 05.09.2002

Appellants: Shraddha Associates and Anr.
Vs.
Respondent: St. Patrick's Town Co-operative Housing Society Ltd. and Ors.

Hon'ble Judges/Coram:
R.M.S. Khandeparkar, J.

Citation; 2003(3)BomCR814, 2003(2)MhLj219;2003 (1) ALL M R 674

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Whether objection of pecuniary jurisdiction of court should be decided as per S 9A of CPC?

Objection to pecuniary jurisdiction of the court must be decided as preliminary issue at initial stage as per section 9-A Of CPC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

APPELLATE JURISDICTION.

APPEAL FROM ORDER NO. 567 OF 2011

Shri Rajan Dhansukhlal Vora,V/s. Shri Dinesh Bacchubhai Parekh.

CORAM: R.M.BORDE, J.

DATED : 5th October 2011.

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