Law Web: 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

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 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:

“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

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

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

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.

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

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

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.(

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

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

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.(

Notwithstanding that a case may be disposed of on a preliminary

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

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

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

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

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

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

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

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

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.

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:

“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

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

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

“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(

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

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

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.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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:

“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

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

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.

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

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

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

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

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

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,

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.”

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

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

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.”

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

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

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

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

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.

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

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.]

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.

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