2015 Supreme(SC) 289

SUPREME COURT OF INDIA
M.Y. Eqbal, Kurian Joseph, JJ.
Foreshore Co-operative Housing Society Limited – Appellants
Versus
Praveen D.Desai (Dead) thr. Lrs. and others – Respondents
Civil Appeal No. 7732 of 2011
With
Razia Amirali Shroff and others – Appellants
Versus
M/s Nishuvi Corporation and others – Respondents
Civil Appeal No. 5514 of 2012
Razia Amirali Shroff and others – Appellants
Versus
M/s Nishuvi Corporation and others – Respondents
Civil Appeal No. 5515 of 2012
Nusli Neville Wadia – Appellants
Versus
Ferani Hotels (Pvt.) Ltd. and others – Respondents
Civil Appeal No(s). 3396 of 2015 (Arising out of SLP(C) No.24880 of 2012)
Punam Co-operative Housing Society – Appellants
Versus
Pratap Issardas Bhatia and others – Respondents
Civil Appeal No(s).3397 of 2015 (Arising out of SLP (C) No.2989 of 2012)
Rama Vijay Kumar Oberoi thr. GPH – Appellants
Versus
Sunita Sudam Ranaware etc. – Respondents
Civil Appeal No(s).3393-95 of 2015 (Arising out of SLP (C) Nos.16373-16375 of 2013)
Decided On : 08-04-2015

IMPORTANT POINTS
Even though Section 9A of CPC inserted by Maharashtra Amendment 1977 is inconsistent with Order XIV, Rule 2, owing to the assent of the President of India, it is a valid legislation and has to be complied with.
Section 9A inserted to curb evil of abuse of process of court.
‘Jurisdiction’ has been used in section 9A in a wider sense, not restricted to pecuniary or territorial jurisdiction only.
Plea of limitation or plea of res judicata is a plea of law concerning jurisdiction of the court. Section 9A is mandatory.
Decisions of larger Benches are binding on Benches of lesser strength of the same court and subordinate courts.

Headnote:(a) Constitution of India – Article 254(2) – Section 9A of CPC inserted by Maharashtra Amendment 1977 – Inconsistent with Order XIV, Rule 2, CPC – However, owing to assent of the President of India, section 9A is valid legislation and has to be complied with. (Para 37)

       1998 (3) MhLJ 940 : 1999 (1) Bom CR 107 – Cited with approval

       (b) Interpretation of statute – Section 9A, CPC – Practice of filing suits against Government without giving notice u/s 80 and withdrawing the suit after availing interim relief – Abuse of process of law – Section 9A inserted to curb this evil requiring courts to decide issue of jurisdiction at the time of granting the relief or considering the application for vacating the interim relief. (Para 39)

       (c) Code of Civil Procedure, 1908 – Section 9A – Jurisdiction – Used in a wider sense – Not restricted to pecuniary or territorial jurisdiction only. (Para 40)

       (d) Code of Civil Procedure, 1908 – Section 9A r/w section 3, Limitation Act, 1963 – Plea of limitation or plea of res judicata – Is a plea of law concerning jurisdiction of the court – Section 9A held mandatory. (Para 45, 58)

       (1969) SC 823; (2007) 4 SCC 451; (2004) 3 SCC 48; (1986) 1 SCC 512; (2008) 12 SCC 577 – Relied upon

       C. A. No. 1085 of 2015 – Per incuriam

       (1964) 1 SCR 495 – Referred

       (2006) 5 SCC 638 – Distinguished

       (e) Administration of Justice – Binding precedent – Decisions of larger Benches – Binding on Benches of lesser strength of the same court and subordinate courts. (Para 52)

       (1991) 4 SCC 139; (2001) 4 SCC 448; (2005) 2 SCC 673 – Relied upon

       Facts of the case:

       In Civil Appeal No. 7732 of 2011 (Foreshore Co-operative Housing Society Limited v. Praveen D. Desai (Dead) thr. Lrs.) the Division Bench of the Bombay High Court upheld the order of the learned Single Judge dismissing the appellant’s suit on the ground that the suit was barred by limitation.

       In Civil Appeal No.5514 of 2012, the Division Bench refused to interfere with order dated 24.1.2011 passed by the learned Single Judge in Notice of Motion No.3616 of 2010 in Suit No.2901 of 2010 which was taken out by the plaintiffs seeking certain interim reliefs pending hearing of the suit. The learned Single Judge directed the defendants to file reply to the Notice of Motion and also directed that the Notice of Motion itself be placed for final hearing. The Division Bench noticed that the defendant-respondents had raised objection to the maintainability of the suit itself as also on the question whether the suit is filed within the period of limitation.

       In Civil Appeal No.5515 of 2012, the prayer for grant of ad-interim relief was declined vy Single Judge pending hearing on the preliminary issue raised by the defendants under Section 9A, CPC, till the jurisdiction of the court to entertain the suit is decided.

       The Division Bench in the matter of Nusli Neville Wadia (Civil Appeal arising out of SLP(C) No.24880/2012) set aside the judgment of the learned Single Judge and directed inter alia that the issue “Whether the claim of the Plaintiff in the suit is barred by limitation” be raised under Section 9A and tried as a preliminary issue.

       Whereas while dealing with the appeal against the order of learned Single Judge framing a preliminary issue under Section 9A with regard to limitation and decided to try it as preliminary issue, the Division Bench in the matter of Punam Co-operative Housing Society (Civil Appeal arising out of SLP(C) No.2989/2012 ) upheld decision of the Single Judge.

       In the matter of Sou. Rama Vijay Kumar Oberoi (Civil Appeal arising out of SLP(C)Nos.16373-16375/2013), the defendant raised an objection that the suit was barred by limitation, the trial court held that the issue of limitation being a mixed question of fact and law could not be framed as a preliminary issue under Section 9A, CPC. In appeal, learned Single Judge of the High Court directed the trial court to frame a preliminary issue under Section 9A as to whether the suit was barred by limitation.

       Finding of the Court:

       There is no infirmity in the impugned judgment.

       Result: Appeals dismissed.