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SUPREME COURT OF INDIA
Arun Mishra, M.R. Shah, B.R. Gavai, JJ.
NUSLI NEVILLE WADIA – PETITIONER(S)
VERSUS
IVORY PROPERTIES & ORS. – RESPONDENT(S)
SPECIAL LEAVE PETITION (CIVIL) NOS.31982-31983 OF 2013 WITH REVIEW PETITION (C) NO.2856 OF 2015 IN CIVIL APPEAL NO.3396 OF 2015
Decided On : 04-10-2019
(a) Words and Phrases - Jurisdiction - Authority of law to act officially in a particular matter in hand - Power to take cognizance and decide cases - Power to hear and determine - Power to decide justiciable controversy including questions of law as well as facts on merits - Power to entertain a suit, consider merits, and render binding decisions - If the law confers a power to render a judgment or decree, then the court has jurisdiction - Jurisdiction to entertain is distinguished from merits, error in the exercise of jurisdiction or excess of jurisdiction. (Para 16, 18)
(b) Code of Civil Procedure, 1908 - Section 9A - Expression ‘jurisdiction of the Court to entertain such suit’ - The word ‘jurisdiction’ must be considered in the context it has been used. (Para 27)
(c) Code of Civil Procedure, 1908 - Section 9A - Expression ‘jurisdiction of the Court to entertain such suit’ - Means jurisdiction to receive the suit for consideration - Does not mean giving relief - Inability to entertain a suit means not inability to grant relief to the plaintiff but inability to give him a trial at all. (Para 28, 30, 31)
(d) Words and Phrases - Jurisdiction - Existence and exercise of - Distinction - Jurisdictional error - Exercise of power with material irregularity or with illegality would also constitute jurisdictional error - Jurisdictional error otherwise than lack of jurisdiction would be open for interference in appellate or revisional jurisdiction - Jurisdiction has both a narrow and broader meaning - In former sense, it means the authority to embark upon an enquiry, and latter, the decision is in noncompliance with provisions of Act - Judgment of a court being amenable to attack in collateral proceedings implies lack of jurisdiction by the court. (Para 33, 38, 39, 41)
(e) Code of Civil Procedure, 1908 - Section 9A - Jurisdiction and limitation - Dismissing a case as barred by limitation is exercise of jurisdiction by the court - A court can decide whether a case is barred by limitation only when it has jurisdiction to do so. (Para 40, 42)
(f) Code of Civil Procedure, 1908 - Section 9A (Maharashtra amendment) and Order XIV Rule 2 (2) - Scope narrower - Only on entertaining a suit - Covers only maintainability of a suit - Jurisdiction of Court to entertain a suit has to be decided without recording of evidence - Scope not broader than Order XIV Rule 2 (2) - Jurisdiction to entertain can be treated as preliminary issue only if raised as pure question of law and not as mixed question of fact and law. (Para 50, 51, 54)
(g) Code of Civil Procedure, 1908 - Order XIV Rule 2 and section 9A - Rule 2(2)(a) deals with jurisdiction of the Court - In case 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 - In case of section 9A only the question of maintainability as question of law has to be decided as preliminary issue - Expression ‘jurisdiction to entertain’ is used in section 9A in the context of inherent lack of jurisdiction to entertain. (Para 55, 56)
(h) Code of Civil Procedure, 1908 - Section 9A - Question of limitation - Cannot be said to be a question of jurisdiction. (Para 58)
(i) Code of Civil Procedure, 1908 - Order XIV Rule 2 - Mixed questions of law and fact requiring recording of evidence - Cannot be tried as a preliminary issue. (Para 60)
(j) Code of Civil Procedure, 1908 - Order VII Rule 11(d) and section 9A - Rejection of plaint as being barred by limitation - Permissible in case of plaint averment itself indicating the cause of action to be barred by limitation and no further evidence is required to adjudicate the issue - Stage of Order VII Rule 11(d) comes before section 9A - Order VII Rule 11(d) has to be applied at the threshold - Scope of Section 9A is somewhat limited and different. (Para 62, 65)
(k) Code of Civil Procedure, 1908 - Section 115 and 9A - Jurisdiction in section 115 is different from that in section 9A. (Para 69)
(l) Administration of justice - Jurisdiction - Judgment resulting from wrong or illegal exercise of jurisdiction to decide the issue - Would not be a nullity. (Para 71, 73)
Facts of the case:
The reference has been made by a Division Bench doubting the correctness of the decision 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 in view of contrary view taken in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors., (2015) 7 SCC 321 which 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.
Finding of the Court:
Jurisdiction under Section 9A covers only maintainability of a suit.
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 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.
Nagpur, dated the 6th December 1969
S.K. WANKHEDE
Minister for Law.
Nagpur dated the 15th December 1969
S.H. BELAVADI
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
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