The main legal point established in the judgment is the jurisdictional significance of the issue of limitation and the expeditious resolution of jurisdictional issues under Section 9A of the C.P.C.

P.C.

1. What is challenged in these appeals is the order dated 28 February 2012 of the learned trial Judge of this Court, raising the following preliminary issue under Section 9A of the Code of Civil Procedure, 1908 as applicable in the State of Maharashtra:-

“Whether the suit has been filed within the period of limitation?

The learned Judge further directed that this issue will be rendered as preliminary issue in the suit and the evidence shall be recorded on Commission. The learned Judge further directed that the cost of the Commissioner shall be paid by 3 sets viz., the plaintiff, defendant No.1 and defendant Nos. 2 and 3 initially and the same shall be subject to further orders in the suit. The examination-in-chief shall be filed by way of affidavit.

2. The learned counsel for the appellants-plaintiffs submits that the question of limitation cannot be raised as a preliminary issue and that under Section 9A of C.P.C., only an issue as to jurisdiction of the Court can be raised as a preliminary issue. It is further submitted that the question of limitation may be raised as a preliminary issue only under Order 14 Rule 2 of C.P.C., but that can be done only after the defendants file written statement and not at the stage of Section 9A of C.P.C. In support of the above contention the learned counsel for the appellants-plaintiffs has relied upon the decisions of the Supreme Court in GunwantbhaiMulchand Shah & Ors. vs. Anton Elis Farel & Ors., (2006) 3 SCC 634 and RameshB. Desai & Ors. vs. Bipin Vadilal Mehta & Ors., (2006) 5 SCC 638.

3. On the other hand the learned counsel for the respondent Nos. 2 and 3 (original defendant Nos. 2 and 3 in the suit) has opposed the appeals and submitted that the appeals are not maintainable as the learned trial Judge has not decided any controversy between the parties, but has merely raised the issue of limitation as a preliminary issue under Section 9A of C.P.C. On merits it is submitted that in the case of Foreshore Co-operative Housing Society Limited vs. Praveen D. Desai & Ors., 2009 (1)Bom. C.R. 757, a Division Bench of this Court has already examined this controversy at length and has held that if the suit is barred by limitation the Court has no jurisdiction to entertain it and the Court is duty bound to dismiss the same and that if the suit is barred by limitation the Court is precluded from proceeding with the contentions and bound to dismiss the suit. For reaching the above conclusion, the Division Bench of this Court relied on the decision of the Supreme Court in Pandurangvs. Maruti, AIR 1966 S.C.153 of the Constitution Bench of the Supreme Court wherein the Supreme Court had held as under:-

“It is well settled that a plea of limitation or plea of resjudicata is 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”.

The Court also explained the object of inserting Section 9A in C.P.C., with the following words:-

“18. The moment, the issue of jurisdiction is raised under section 9-A of the Code of Civil Procedure, the said issue should be decided at first, and not to be adjourned to a later date. The main reason is that if the Court comes to findingthat it does not have jurisdiction vested in it in law, then no further enquiry is needed and saves a lot of valuable judicialtime. In fact, section 9-A itself mandates that when an objection to the jurisdiction of the Court to entertain such asuit is taken by any of the parties, the Court will have to decide the issue expeditiously and in no case too be adjourned to the hearing of the suit”.

4. The above decision in Foreshore Co-operative Housing Society Ltd., has also been followed by another Division Bench of this Court in Associated Bombay Cinemas Pvt. Ltd., Mumbai vs. Jamni S. Ramchandani, 2011 (3) Mh. L.J., 340. The above decisions of two Division Benches of this Court are binding on us.