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ARUN MISHRA, M.R.SHAH, B.R.GAVAI
NUSLI NEVILLE WADIA – Appellant
Versus
IVORY PROPERTIES – Respondent
What is the scope of Section 9A of the Code of Civil Procedure, 1908, as inserted by the Maharashtra Amendment Act? What is the distinction between the existence and exercise of jurisdiction? Can a question of limitation be decided as a preliminary issue under Section 9A of the Code of Civil Procedure, 1908?
Key Points: - The expression ‘jurisdiction of the Court to entertain such suit’ in Section 9A of the CPC means jurisdiction to receive the suit for consideration and does not mean giving relief (!) (!) (!) . - Jurisdiction under Section 9A covers only the maintainability of a suit (!) (!) (!) (!) . - There is a distinction between the existence and exercise of jurisdiction; an error in the exercise of jurisdiction does not mean a lack of jurisdiction (!) (!) (!) (!) (!) (!) . - A judgment resulting from the wrong or illegal exercise of jurisdiction to decide an issue would not be a nullity (!) (!) (!) (!) . - The question of limitation cannot be said to be a question of jurisdiction in the context of Section 9A (!) (!) . - Jurisdiction to entertain a suit under Section 9A has to be decided without recording of evidence (!) (!) . - If facts are admitted, issues of res judicata, constructive res judicata, and maintainability of the suit should be decided as a preliminary issue (!) (!) . - A mixed question of law and fact cannot be decided as a preliminary issue (!) (!) (!) (!) . - Rejection of a plaint as barred by limitation under Order VII Rule 11(d) is permissible if the plaint averments themselves indicate the cause of action is barred and no further evidence is required (!) (!) (!) . - The decision in Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (2015) 6 SCC 412 was held not to be laying down the law correctly (!) . - The decision in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar (2015) 7 SCC 321 was correctly decided and cannot be said to be per incuriam (!) .
JUDGMENT
ARUN MISHRA, J.
1. The reference has been made by a Division Bench of this Court vide order dated 17.8.2015, doubting the correctness of the decision of this Court in Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) through Legal Representatives and others, (2015) 6 SCC 412 with respect to the interpretation provisions contained in Section 9A of the Code of Civil Procedure, 1908 (for short, ‘the CPC’) as inserted by the Maharashtra Amendment Act, 1977. It has been opined that the word “jurisdiction” under Section 9A is wide enough to include the issue of limitation as the expression has been used in the broader sense and is not restricted to conventional definition under pecuniary or territorial jurisdiction, the decision in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors., (2015) 7 SCC 321, taking contrary view, is per incuriam in view of the larger Bench decision in Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors, AIR 1966 SC 153 as well as other larger Bench decisions.
2. In Kamalakar Eknath Salunkhe (supra) this Court has opined that issue of limitation cannot be decided as a preliminary issue of jurisdiction under Se
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