Bench:
Arun Mishra, M.R. Shah, B.R. Gavai, JJ.
Petitioner:
Nusli Neville Wadia
Respondent:
Ivory Properties & Others
Issue
Is the expression “Jurisdiction” which is mentioned under Section 9-A of Civil Procedure Code (Maharashtra Amendment) Act, 2018 broad enough to include the Question of Limitation before the Court?
Facts
- The Matter had been referred to by the Division Bench of this Court, doubting the correctness of the decision in Foreshore Cooperative Housin.g Society Limited v. Praveen D. Desai (Dead).
- The doubt is with respect to the interpretational provisions contained in Section 9-A of the Civil Procedure Code,1908, as inserted by the Maharashtra Amendment Act, 1977.
- It has been stated that the word “jurisdiction” under Section 9-A was wide enough to include the issue of limitation as the expression has been used in a broader sense.
- It has been opined that the expression was not restricted to conventional definition under pecuniary or territorial jurisdiction.
- The Court in Foreshore Cooperative Housing Society case overruled the law of Kamalakar Eknath Salunkhe v. Baburav Vishnu Javlkar, which gave a contrary view.
- The Court in this instant case had to give a verdict on whether the expression “jurisdiction” under Section 9A includes the issue of limitation or not.
Petitioner’s Contentions
- The Court cannot confer upon the jurisdiction to try a suit on the mixed questions of law and facts as preliminary issues.
- The expression “jurisdiction” under Section 9-A does not include an issue of a suit being barred by any provisions of the law for the time being, as it is used in a narrower sense.
- The question of limitation both concerns the question of law and facts.
- Issue of Limitation is a matter of jurisdiction.
- The preliminary issues can only be a question of pure law as per the Order 14 Rule 2.
Respondent’s Contentions
- The expression “Objection to the jurisdiction of the court” has no relevance under Civil Procedure Code to entertain such a suit.
- The fundamental issue under Section 9-A can include the question of limitation and res judicata.
- Prior to the framing of issues under Order 14, the Court can give judgment upon the admitted documents and facts under Order 12 and 13.
- The Court cannot be prevented from examining the admitted documents and witnesses as per Order 14 Rule 4.
- Concerning the term “Issue of law”, under Order 14 Rule 2(2), which can be decided in the preliminary issue is not used in Section 9-A.
- Section 9-A strengthens the idea of speedy justice; hence it cannot be called as irrational or unreasonable in any manner.
- An issue which can be tried as a preliminary issue depends upon the nature of the provision of the statute and the public policy behind it. Hence, the Foreshore Cooperative Society case has given the correct law.
Relevant Paragraphs (Paragraph Numbers 31, 48, 77 of the Original Judgement)
- The word jurisdiction, under Section 9A of the Code, only mentions about entertaining the suit. The expression ‘entertain', here, would mean the jurisdiction to admit a suit for consideration. When a suit or proceeding is not denied on grounds of limitations, but the Court takes it for consideration, it must be defined as entertaining the suit.
- When a particular case is barred by res judicata or limitation, it does not mean that the Court has no power to entertain the case, but only that it loses the power to grant relief. The words "jurisdiction to entertain" under Section 9A has a narrow meaning. The suit/application which is barred by limitation cannot be interpreted as a ground of jurisdiction.
- Section 3 of the Limitation Act gives a Court the power to dismiss a suit, or an application, or appeal barred by limitation. So, it is presumed that while deciding the issues of the bar created by the Limitation Act, or Res Judicata, the Courts, first, must have the required jurisdiction to decide these issues. This is what Section 9A provides for. Under the provisions of this Section 9A, the question is whether the Court has the power to entertain the suit in the first place. Here, the Court is open to decide preliminary issues only if it is a question of law, and not a mixed question of law and fact by recording evidence.
Final Decision
The Court held that there is a difference in the meaning of the terms, “Existence of Jurisdiction” and the “Exercise of the Jurisdiction”. The Court held that if a Court is giving a decision without having jurisdiction, the judgment shall attract nullity. Referring to Para 77(a) of the Judgment, the Court further added that while deciding the issues of the bar created by the Law of limitation or res judicata, the Court must have jurisdiction to decide these issues. The Court further overruled the law of Foreshore Cooperative Housing Society Limited v. Praveen D. Desai and restored the decision of Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar & Ors. The Court further reiterated that no issue can be decided only under the guise of the provision that it has been framed under Section 9-A and was pending consideration on the date of commencement of the (Maharashtra Amendment) Act, 2018. The Court emphasized its decision on Order 14 Rule 2, which restricts that a Court can only decide the question of law in preliminary issues. Preliminary issues do not include mixed questions of law and facts or only questions of facts. Section 9-A, which talks about “jurisdiction” being the preliminary issue, cannot include the question of limitation which is subject to the facts and circumstances of the disputes. Having stated that, the Court referred the matter to be placed before an appropriate Bench for consideration on merits.
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