# NUSLI NEVILLE WADIA v. IVORY PROPERTIES & ORS

- **Citation:** [2019] 15 S.C.R. 795
- **Court:** Supreme Court of India
- **Decided:** 2019-10-04
- **Bench:** Arun Mishra, M. R. Shah, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nusli-neville-wadia-v-ivory-properties-ors-33891
- **Pages:** 70

## Headnote

Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) - Jurisdiction - Preliminary
issue of limitation - Held: Issue of limitation cannot be decided
as preliminary issue - The decision in Kamlakar Shantaram has
been correctly decided and cannot be said to be per incurium as
held in Foreshore Cooperative Housing Society Limited.
Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) - Jurisdiction - Under the
provisions of s.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.
Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) - Jurisdiction - When
considering what colour expression "jurisdiction" has in s.9A, it
is clearly in the context of power to entertain, jurisdiction takes
colour from accompanying word 'entertain'; i.e. the 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 time-barred 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.
Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) - Jurisdiction - 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 s.27 of the Limitation Act - When Court
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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 s.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 s.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 s.9A is a narrow one as to maintainability, the
competence of the court to receive the suit for adjudication is only
covered under the provisions.
Code of Civil Procedure, 1908: Or.XIV r.2(2)(b) and s.9 -
Preliminary issue - In a case question of limitation can be decided
based on admitted facts, it can be decided as a preliminary issue
under Or.XIV r.2(2)(b) - However, when facts are disputed about
limitation, the determination of the question of limitation also
cannot be made under Or.XIV r.2(2)(b) 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 - Thus, a mixed question
of law and fact cannot be decided as a preliminary issue, either
under s.9A or under Or.XIV r.2 - Before or after its amendment of
CPC concerning both provisions, the position is the same -
Limitation.
Jurisdiction: Meaning of - Held: 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 subject-matter which comes within classification limits
of the law under which court has been established. It should have
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NUSLI NEVILLE WADIA
v.
IVORY PROPERTIES & ORS.
(Special Leave Petition (Civil) Nos. 31982-31983 of 2013)
OCTOBER 04, 2019
[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) - Jurisdiction - Preliminary
issue of limitation - Held: Issue of limitation cannot be decided
as preliminary issue - The decision in Kamlakar Shantaram has
been correctly decided and cannot be said to be per incurium as
held in Foreshore Cooperative Housing Society Limited.
Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) - Jurisdiction - Under the
provisions of s.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.
Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) - Jurisdiction - When
considering what colour expression "jurisdiction" has in s.9A, it
is clearly in the context of power to entertain, jurisdiction takes
colour from accompanying word 'entertain'; i.e. the 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 time-barred 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.
Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) - Jurisdiction - 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 s.27 of the Limitation Act - When Court
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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 s.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 s.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 s.9A is a narrow one as to maintainability, the
competence of the court to receive the suit for adjudication is only
covered under the provisions.
Code of Civil Procedure, 1908: Or.XIV r.2(2)(b) and s.9 -
Preliminary issue - In a case question of limitation can be decided
based on admitted facts, it can be decided as a preliminary issue
under Or.XIV r.2(2)(b) - However, when facts are disputed about
limitation, the determination of the question of limitation also
cannot be made under Or.XIV r.2(2)(b) 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 - Thus, a mixed question
of law and fact cannot be decided as a preliminary issue, either
under s.9A or under Or.XIV r.2 - Before or after its amendment of
CPC concerning both provisions, the position is the same -
Limitation.
Jurisdiction: Meaning of - Held: 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 subject-matter 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.
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Jurisdiction: Existence of jurisdiction and the exercise of
jurisdiction - Distinction between - Held: The jurisdiction to
entertain has different connotation from the jurisdictional error
committed in exercise thereof - 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 -
In case jurisdiction is exercised with material irregularity or with
illegality, it would also constitute jurisdictional error.
Code of Civil Procedure (Maharashtra Amendment) Act,
2018: s.2 - s.2 of Amendment Act, 2018 which provides that where
consideration of preliminary issue framed under s.9A is pending
on the date of commencement of the CPC, the said issue shall be
decided and disposed of by the court under s.9A as if the provision
under s.9A has not been deleted, does not change the legal
scenario as to what can be decided as a preliminary issue under
s.9A, CPC, as applicable in Maharashtra - The saving created by
the provision of s.2 where consideration of preliminary issue framed
under s.9A is pending on the date of commencement of the
Amendment Act, 2018, can be decided only if it comes within the
parameters on the interpretation of s.9A - No issue can be decided
only under the guise of the provision that it has been framed under
s.9A and was pending consideration on the date of commencement
of the Amendment Act, 2018.
Words and Phrases: Expression 'Jurisdiction to entertain the
suit' - Meaning of - Explained.
Words and Phrases: Expression 'entertain' - Meaning of -
Held: The word 'entertain' means to admit for consideration - It
means to adjudicate upon or to proceed to consider on merits.
Answering the reference, the Court
HELD:
IN RE: MEANING OF WORD JURISDICTION
1.1 Jurisdiction is the power to decide and not merely the
power to decide correctly. Jurisdiction is the authority of law to
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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 means power 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.
[Para 16] [823-D-F]
1.2 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 attack on the ground of nullity. It has co-relation
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. [Para 17] [824B-C]
1.3 Jurisdiction to entertain is distinguished from merits,
error in the exercise of jurisdiction or excess of jurisdiction.
Section 9 of the Code of Civil Procedure deals with jurisdiction
and empowers the courts to try all civil suits unless barred. 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. [Paras 18-20] [824-D-G-H]
Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC
1449 : [1965] SCR 800 ; A.R. Antulay v. R.S. Nayak
and Anr., (1988) 2 SCC 602 : [1988] 1 Suppl. SCR
1 ; Delhi Special Police Establishment, New Delhi v.
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Lt. Col. S.K Loraiya, (1972) 2 SCC 692 : [1973] 1 SCR
1010 ; Smt. Ujjam Bai v. State of Uttar Pradesh, AIR
1962 SC 1621 : [1963] SCR 778 ; Anowar Hussain
v. Ajay Kumar Mukherjee, AIR 1965 SC 1651 -
referred to.
1.4 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 "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.
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 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.
There are various other provisions in which the expression has
been used. [Para 27] [828-B-E]
IN RE: "ENTERTAIN THE SUIT"
2.1 When considering the 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 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. 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. The expression "jurisdiction to entertain" is also used
in Section 14 of the Limitation Act. The provisions of Section
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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. [Para 28-29] [828F-H; 829-A-B]
2.2 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
expression 'entertain' means to adjudicate upon or to proceed
to consider on merits. [Para 31, 32] [830-F-H]
The Premier Automobiles Ltd. v. Kamlakar Shantaram
Wadke & Ors., AIR 1975 SC 2238 : [1976] 1 SCR
427 - affirmed.
Lakshmiratan Engineering Works Ltd. v. Assistant
Commissioner, Sales Tax, Kanpur AIR 1968 SC 488 :
[1968] SCR 505 ; Hindusthan Commercial Bank Ltd.
v. Punnu Sahu (Dead) through Legal Representatives
(1971) 3 SCC 124 ; Kashiram v. Santokhbai AIR 1958
MP 91 ; Nakul Chandra Ghose v. Shyamapada Ghose
AIR 1945 Cal 381 - referred to.
IN RE: DIFFERENCE BETWEEN EXISTENCE AND
EXERCISE OF JURISDICTION
3.1 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. 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 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.
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Adjudication is the power to proceed to consider on merits.
[Paras 33, 36] [831-G; 832-H; 833-A]
Dabur India Limited v. K. R. Industries, (2008) 10 SCC
595 : [2008] 9 SCR 652 ; Bhai Jai Kishen Singh v.
Peoples Bank of Northern India (in liquidation)
through Bhagwati Shankar, Official Liquidator, AIR
1944 Lah 136 ; Union of India v. Tarachand Gupta
and Bros., (1971) 1 SCC 486 : [1971] SCR 557 ;
Official Trustee, West Bengal v. Sachindra Nath
Chatterjee, AIR 1969 SC 823 : [1969] SCR 92 -
referred to
Anisminic Ltd. v. Foreign Compensation Commission,
[1968] 2 Q.B. 862 - referred to.
3.2 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
wrong decision dismissing the case on the ground of limitation.
An 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. 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. [Paras
40-42] [837-A-B; 840-D-F]
M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427 : [1973]
1 SCR 697 ; Budhia Swain & others v. Gopinath Deb
and others, (1999) 4 SCC 396 : [1999] 2 SCR 1189
- relied on.
National Thermal Power Corpn. Ltd. v. Siemens
Atkeingesellschaft, (2007) 4 SCC 451 : [2007] 3 SCR
399 - held inapplicable.
IN RE: JURISDICTION TO ENTERTAIN UNDER
SECTION 9A, CPC
4.1 The word "jurisdiction" in section 9A is qualified with
expression to 'entertain' the suit. Thus, it is apparent that the
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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." 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. [Paras 43-44] [840-G-H; 841-A-B]
4.2 When considering 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 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
time-barred 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 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
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relates to receiving a suit to initiate the very process for granting
relief. [Para 45] [841-B-G]
4.3 As per Order XIV Rule 1, issues arise when a material
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.
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 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. [Paras 46, 47] [842-D-H; 843-A]
4.4 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. It is only the
maintainability of the suit before the court which is covered
within the purview of Section 9-A CPC as amended in
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Maharashtra. Section 3 of the Limitation 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. [Paras 49, 50] [843-C-G]
Raghunath Das v. Gokal Chand, AIR 1958 SC 827 :
[1959] SCR 811 - relied on.
IN RE: ORDER XIV RULE 2
5. The expressions used in the Order XIV Rule 2 as
incorporated in the CPC by way of Amendment Act, 1976 deals
with the jurisdiction of the Court. 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.
[Paras 52, 54] [844-D-G-H; 845-A]
Sajanbir Singh Anand and others v. Raminder Kaur
Anand and others (2018) 3 Mh.L.J. 892 ;
Gunwantbhai Mulchand Shah v. Anton Elis Farel and
others, (2006) 3 SCC 634 : [2006] 2 SCR 886 ; Indian
Bank v. Maharashtra State Cooperative Marketing
Federation Ltd., (1998) 5 SCC 69 : [1998] 3 SCR
187 ; Sneh Lata Goel v. Pushplata and others, (2019)
3 SCC 594 : [2019] 1 SCR 463 ; Hiralal Patni v. Kali
Nath, AIR 1962 SC 199 : [1962] SCR 747 - referred
to.
Abdul Rahman v. Prasony Bai and another, (2003) 1
SCC 488 : [2002] 4 Suppl. SCR 260 - held
inapplicable.
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IN RE: MIXED QUESTION OF LAW AND FACT AND
ORDER VII RULE 11 CPC
6.1 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. 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. [Paras 58, 62] [847E; 848-F]
Major S.S. Khanna v. Brig. F.J. Dhillon AIR 1964 SC
497 : [1964] SCR 409 ; Narne Rama Murthy v. Ravula
Somasundaram & Ors. (2005) 6 SCC 614 : [2004] 6
Suppl. SCR 1065 ; Satti Paradesi Samadhi and
Pillayar Temple v. M. Sankuntala (Dead) through Legal
Representatives and others, (2015) 5 SCC 674 : [2014]
9 SCR 221 ; Ramdayal Umraomal v. Pannalal
Jagannathji, 1979 M.P.L.J 736 ; 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.,
2016-1-L.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 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 ; J Mnthamma & Anr. v. Bayya Iiglamma & Ors.;
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Vaish Aggarwal Panchayat v. Inder Kumar and others,
AIR 2015 SC 3357 : [2015] SCR 637 ; Hareendran
and others v. Sukumaran and others, (2018) 14 SCC
187 - referred to.
6.2 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,
nevertheless Section 9A is limited in its operation as to the
jurisdiction of the Court to entertain a suit. [Para 65] [852-D-E]
Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and
Ors., (2006) 5 SCC 638 : [2006] 3 Suppl. SCR 414 ;
Raghwendra Sharan Singh v. Ram Prasanna Singh
(Dead) by Lrs., AIR 2019 SC 1430 ; N.V. Srinivasa
Murthy & others v. Mariyamma (Dead) by proposed
LRs. & Ors., (2005) 5 SCC 548 : [2005] 1 Suppl. SCR
411 ; Suman Devi v. Manisha Devi & others, (2018) 9
SCC 808 : [2018] 10 SCR 26 - held inapplicable.
IN RE: DECISION IN FORESHORE COOPERATIVE
HOUSING SOCIETY LIMITED
7.1 In Foreshore Cooperative Housing Society Limited,
decision of the court in Pandurang Dhondi Chougule and other
decisions have been relied on. In Pandurang Dhondi Chougule,
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 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
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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 Dhondi Chougule. 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 these pleas 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, the court has
wrongly applied a different colour of jurisdiction used under
section 115 CPC which was dealt with in Pandurang Dhondi
Chougule case. It is a mismatch and does not merge with the
context of provisions of section 9A CPC. [Para 66 and 67] [852G; 853-G-H; 854-A-D]
Foreshore Cooperative Housing Society Limited v.
Praveen
D.
Desai
(Dead)
through
Legal
Representatives and others, (2015) 6 SCC 412 : [2015]
5 SCR 1075 ; 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 ;
Union of India and others v. N.K. Bhog and others,
(2015) SCC OnLine Bom 664 - Not correct law
Kamalakar Eknath Salunkhe v. Baburav Vishnu
Javalkar and Ors., (2015) 7 SCC 321 - affirmed
Meher Singh v. Deepak Sawhney, (1998) 3 MLJ
940 ; Sudesh v. Abdul Aziz, (2001) 1 Mh.L.J. 324 -
overruled.
Smithkline Beecham Consumer Consumer Healthcare
v. Hindustan Liver Limited, 2002 SCC OnLine Bom
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1337 ; Shraddha Associates v. St. Patrick's Town Cooperative Housing Society Ltd., (2003) 2 Mh.L.J. 219
- disapproved.
Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC
1449 : [1965] SCR 800 ; A.R. Antulay v. R.S. Nayak
and Anr., (1988) 2 SCC 602 : [1988] 1 Suppl. SCR
1 ; Delhi Special Police Establishment, New Delhi v.
Lt. Col. S.K Loraiya, (1972) 2 SCC 692 : [1973] 1
SCR 1010 ; Smt. Ujjam Bai v. State of Uttar Pradesh,
AIR 1962 SC 1621 : [1963] SCR 778 ; Anowar
Hussain v. Ajay Kumar Mukherjee, AIR 1965 SC
1651 ; M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427 :
[1973] 1 SCR 697 ; Hari Prasad Mulshankar Trivedi
v. V.B. Raju and Ors., (1974) 3 SCC 415:[1974] 1
SCR 548 ; Ittyavira Mathai v. Varkey Varkey and Anr.,
AIR 1964 SC 907 : [ 1964] SCR 495 ; Maqbul Ahmad
and others v. Onkar Pratap Narain, AIR 1935 PC
85 ; Manick Chandra Nandy v. Debdas Nandy and
others, (1986) 1 SCC 512 ; ITW Signode India Ltd. v.
Collector of Central Excise, (2004) 3 SCC 48 : [2003]
5 Suppl. SCR 751 ; Kamlesh Babu and others v. Lajpat
Rai Sharma and others, (2008) 12 SCC 577 : [2008]
6 SCR 653 ; Indian Farmers Fertilizer Cooperative
Limited v. Bhadra Products, (2018) 2 SCC 534 :
[2018] 1 SCR 848 ; Pandurang Dhondi Chougule and
Ors. v. Maruti Hari Jadhav and Ors, AIR 1966 SC
153 : [1966] SCR 102 - referred to.
IN RE: LITERAL INTERPRETATION
8. 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 tested 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. [Para 76] [863-F]
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Rohitash Kumar and others v. Om Prakash Sharma and
others, (2013) 11 SCC 451 : [2012] 13 SCR 47 ;
Nalinakhya Bysack v. Shyam Sundar Haldar, AIR 1953
SC 148 : [1953] SCR 533 - distinguished.
Case Law Reference
[2015] 5 SCR 1075
Not correct law
Para 1
(2015) 7 SCC 321
affirmed
Para 1
[1966] SCR 102
referred to
Para 1
[1965] SCR 800
referred to
Para 21
[1988] 1 Suppl. SCR 1
referred to
Para 22
[1973] 1 SCR 1010
referred to
Para 23
[1963] SCR 778
referred to
Para 24
AIR 1965 SC 1651
referred to
Para 25
[1973] 1 SCR 697
referred to
Para 26
[1968] SCR 505
referred to
Para 31
(1971) 3 SCC 124
referred to
Para 31
[2008] 9 SCR 652
referred to
Para 34
[1976] 1 SCR 427
affirmed
Para 35
[1974] 1 SCR 548
held inapplicable
Para 37
[1971] SCR 557
referred to
Para 38
[1969] SCR 92
referred to
Para 39
[2007] 3 SCR 399
held inapplicable
Para 40
[1999] 2 SCR 1189
relied on
Para 42
[1959] SCR 811
relied on
Para 49
[2002] 4 Suppl. SCR 260
held inapplicable
Para 55
[2006] 2 SCR 886
referred to
Para 56
[1998] 3 SCR 187
referred to
Para 56
[2019] 1 SCR 463
referred to
Para 56
[1962] SCR 747
referred to
Para 56
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[1964] SCR 409
referred to
Para 57
[2004] 6 Suppl. SCR 1065
referred to
Para 58
[2014] 9 SCR 221
referred to
Para 59
[2015] SCR 637
referred to
Para 61
(2018) 14 SCC 187
referred to
Para 63
[2006] 3 Suppl. SCR 414
held inapplicable
Para 64
AIR 2019 SC 1430
held inapplicable
Para 65
[2005] 1 Suppl. SCR 411
held inapplicable
Para 65
[2018] 10 SCR 26
held inapplicable
Para 65
[1964] SCR 495
referred to
Para 68
AIR 1935 PC 85
referred to
Para 68
(1986) 1 SCC 512
referred to
Para 69
[2003] 5 Suppl. SCR 751
referred to
Para 70
[2008] 6 SCR 653
referred to
Para 71
[2018] 1 SCR 848
referred to
Para 72
[2012] 13 SCR 47
distinguished
Para 76
[1953] SCR 533
distinguished
Para 76
CIVIL APPELLATE/INHERENT JURISDICTION : Special
Leave Petition (Civil) Nos. 31982-31983 of 2013.
From the Judgment and Order dated 19.09.2013 and 20.09.2013
of the High Court of Judicature at Bombay in AN No. 414 of 2008
and in SN No. 414 of 2008 respectively.
With
Review Petition (Civil) No. 2856 of 2015 in Civil Appeal No. 3396
of 2015.
F. S. Nariman, Dr. A. M. Singhvi, Rakesh Dwivedi, Mukul
Rohatgi, Gopal Jain, Sr. Advs., Rohan Kelkar, Ms. Nandini Gore,
Ms. Tahira Karanjawala, Ms. Natasha Sehrawat, Arjun Sharma,
Subhash Sharma, Ms. Olga Lume Pereira, Karamveer Singh Anand,
Jasvir Singh Sabharwal, M/S. Karanjawala & Co., Mahesh Agarwal,
Ms. Hemlata Jain, Ankur Saigal, Nooruddin Dhilla, Anirudh Hariani,
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Ms. Sukhda Wagle, Ms. Parul Shukla, E. C. Agrawala, Ms. Purnima
Bhat, Ms. Garima Prashad, Kaushik Poddar, Abhimanyu Bhandari,
Avishkar Singhvi, Ms. Roohina Dua, Cheitanya Madan, Ms. Nattasha
Garg, Ms. Gauri Rishi, Ms. Ranjeeta Rohatgi, Arav Pandit, Naveen
Kumar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
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, 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 re-enacted 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.
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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:
"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
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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 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 sub-section (1), at the
hearing of any such application, the Court may grant such interim
relief as it may consider necessary pending determination by it
of the preliminary issue as to the jurisdiction."
5. The Statement of Objects and Reasons for re-introduction of
Section 9A in the year 1977 is the same. It has been re-enacted in a
slightly revised form. The Statement of Objects and Reasons of the
re-enacted 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
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[ARUN MISHRA, J.]
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the Rules for the Hyderabad State Life Insurance and Provident
Fund from attachment in execution of a decree.