NUSLI NEVILLE WADIA versus IVORY PROPERTIES & ORS. on 4 October 2019

Issues

[2019] 15 S.C.R. 795

NUSLI NEVILLE WADIA

v.

IVORY PROPERTIES & ORS.

(Special Leave Petition (Civil) Nos. 31982-31983 of 2013)

OCTOBER 04, 2019

[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]

Code of Civil Procedure, 1908: s.9A (as inserted byMaharashtra Amendment Act, 1977) – Jurisdiction – Preliminaryissue of limitation – Held: Issue of limitation cannot be decidedas preliminary issue – The decision in Kamlakar Shantaram hasbeen correctly decided and cannot be said to be per incurium asheld in Foreshore Cooperative Housing Society Limited.

Code of Civil Procedure, 1908: s.9A (as inserted byMaharashtra Amendment Act, 1977) – Jurisdiction – Under theprovisions of s.9A and Order XIV Rule 2, it is open to decidepreliminary issues if it is purely a question of law not a mixedquestion of law and fact by recording evidence.

Code of Civil Procedure, 1908: s.9A (as inserted byMaharashtra Amendment Act, 1977) – Jurisdiction – Whenconsidering what colour expression “jurisdiction” has in s.9A, itis clearly in the context of power to entertain, jurisdiction takescolour from accompanying word ‘entertain’; i.e. the Court shouldhave jurisdiction to receive a case for consideration or to try it –In case there is no jurisdiction, court has no competence to givethe relief, but if it has, it cannot give such relief for the reasonthat claim is time-barred by limitation or is barred by the principleof res judicata or by bar created under any other law for the timebeing in force.

Code of Civil Procedure, 1908: s.9A (as inserted byMaharashtra Amendment Act, 1977) – Jurisdiction – When a caseis barred by res judicata or limitation, it is not that the Court hasno 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 toproperty is provided under s.27 of the Limitation Act – When Court

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Adismisses a suit on the ground of limitation, right to property islost, to hold so the court must have jurisdiction to entertain it –The Court is enjoined with a duty under s.3 of the Limitation Actto take into consideration the bar of limitation by itself – Theexpression “bar to file a suit under any other law for the time beingBin force” includes the one created by the Limitation Act – It cannotbe said to be included in the expression “jurisdiction to entertain”suit used in s.9A – The Court has to receive a case forconsideration and entertain it, to look into the facts constitutinglimitation or bar created by any other law to give relief, it has todecide the question on merits; then it has the power to dismiss theCsame on the ground of limitation or such other bar created by anyother law – Thus, the meaning to be given to jurisdiction toentertain in s.9A is a narrow one as to maintainability, thecompetence of the court to receive the suit for adjudication is onlycovered under the provisions.DCode of Civil Procedure, 1908: Or.XIV r.2(2)(b) and s.9 –Preliminary issue – In a case question of limitation can be decidedbased on admitted facts, it can be decided as a preliminary issueunder Or.XIV r.2(2)(b) – However, when facts are disputed aboutlimitation, the determination of the question of limitation alsoEcannot be made under Or.XIV r.2(2)(b) as a preliminary issue orany other such issue of law which requires examination of thedisputed facts – In case of dispute as to facts, is necessary to bedetermined to give a finding on a question of law – Such questioncannot be decided as a preliminary issue – Thus, a mixed questionof law and fact cannot be decided as a preliminary issue, eitherFunder s.9A or under Or.XIV r.2 – Before or after its amendment ofCPC concerning both provisions, the position is the same –Limitation.

Conclusion

Jurisdiction: Meaning of – Held: Jurisdiction is the authorityby which a judicial officer takes cognizance and decides the cases.GIt only presupposes the existence of a duly constituted court havingcontrol over subject-matter which comes within classification limitsof the law under which court has been established. It should havecontrol over the parties litigant, control over the parties’ territory,it may also relate to pecuniary as well as the nature of the classHof cases.

Jurisdiction: Existence of jurisdiction and the exercise ofjurisdiction – Distinction between – Held: The jurisdiction toentertain has different connotation from the jurisdictional errorcommitted in exercise thereof – The existence of jurisdiction isreflected by the fact of amenability of the judgment to attack inthe collateral proceedings – If the court has an inherent lack ofjurisdiction, its decision is open to attack as a nullity – Whiledeciding the issues of the bar created by the law of limitation, resjudicata, the Court must have jurisdiction to decide these issues –In case jurisdiction is exercised with material irregularity or withillegality, it would also constitute jurisdictional error.

Code of Civil Procedure (Maharashtra Amendment) Act,2018: s.2 – s.2 of Amendment Act, 2018 which provides that whereconsideration of preliminary issue framed under s.9A is pendingon the date of commencement of the CPC, the said issue shall bedecided and disposed of by the court under s.9A as if the provisionunder s.9A has not been deleted, does not change the legalscenario as to what can be decided as a preliminary issue unders.9A, CPC, as applicable in Maharashtra – The saving created bythe provision of s.2 where consideration of preliminary issue framedunder s.9A is pending on the date of commencement of theAmendment Act, 2018, can be decided only if it comes within theparameters on the interpretation of s.9A – No issue can be decidedonly under the guise of the provision that it has been framed unders.9A and was pending consideration on the date of commencementof the Amendment Act, 2018.

Words and Phrases: Expression ‘Jurisdiction to entertain thesuit’ – Meaning of – Explained.

Words and Phrases: Expression ‘entertain’ – Meaning of –Held: The word ‘entertain’ means to admit for consideration – Itmeans to adjudicate upon or to proceed to consider on merits.

Answering the reference, the Court

HELD:

IN RE: MEANING OF WORD JURISDICTION

1.1 Jurisdiction is the power to decide and not merely thepower to decide correctly. Jurisdiction is the authority of law to AB

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Aact officially, in a particular matter in hand. It is the power totake cognizance and decide the cases. It is the power to deciderightly or wrongly. It is the power to hear and determine. Sameis the foundation of judicial proceedings. It does not dependupon the correctness of the decision made. It is the power todecide justiciable controversy and includes questions of law asBwell as facts on merits. Jurisdiction means power to entertaina suit, consider merits, and render binding decisions, and“merits” means the various elements which enter into or qualifyplaintiff’s right to the relief sought. If the law confers a powerto render a judgment or decree, then the court has jurisdiction.C[Para 16] [823-D-F]

1.2 Jurisdiction is generally understood as the authorityto decide, render a judgment, inquire into the facts, to apply thelaw, and to pronounce a judgment. When there is the want ofgeneral power to act, the court has no jurisdiction. When theDcourt has the power to inquire into the facts, apply the law,render binding judgment, and enforce it, the court hasjurisdiction. Judgment within a jurisdiction has to be immunefrom collateral attack on the ground of nullity. It has co-relationwith the constitutional and statutory power of tribunal or courtto hear and determine. It means the power or capacityEfundamentally to entertain, hear, and determine. [Para 17] [824-B-C]

1.3 Jurisdiction to entertain is distinguished from merits,error in the exercise of jurisdiction or excess of jurisdiction.Section 9 of the Code of Civil Procedure deals with jurisdictionFand empowers the courts to try all civil suits unless barred. Thewords used in section 9 of the Code of Civil Procedure of 1882“barred by any enactment for the time being in force” aresubstituted in the Code of Civil Procedure of 1908 by “eitherexpressly or impliedly barred.” Thus, the word “jurisdiction”Gunder section 9 correlates with the cognisance, i.e., is not barredeither expressly or impliedly. [Paras 18-20] [824-D-G-H]

Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC1449 : [1965] SCR 800 ; A.R. Antulay v. R.S. Nayakand Anr., (1988) 2 SCC 602 : [1988] 1 Suppl. SCR1 ; Delhi Special Police Establishment, New Delhi v.

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Lt. Col. S.K Loraiya, (1972) 2 SCC 692 : [1973] 1 SCR1010 ; Smt. Ujjam Bai v. State of Uttar Pradesh, AIR1962 SC 1621 : [1963] SCR 778 ; Anowar Hussainv. Ajay Kumar Mukherjee, AIR 1965 SC 1651 –referred to.

1.4 The jurisdiction in Section 9A must be considered inthe context it has been used. The word jurisdiction has to beinterpreted in the context which has been used in the variousprovisions. The word “jurisdiction” has been used in CPC inseveral provisions. Section 9 deals with the jurisdiction to tryall suits by a civil court except those which are barred. Section10 prohibits a Court from proceeding with the trial. Section 11and Explanation VIII are based upon the principle of res judicata.Order II Rule 3(2) contains a provision concerning thejurisdiction of the Court as regards the suit. Order VII Rule11(d) deals with the rejection of the plaint on the ground beingbarred by law. Order XIV Rule 2 distinguishes betweenpreliminary issues relating to the jurisdiction of the Court or abar to the suit created by any law for the time being in force.There are various other provisions in which the expression hasbeen used. [Para 27] [828-B-E]

IN RE: “ENTERTAIN THE SUIT”

2.1 When considering the provisions in Section 9A, theword jurisdiction is qualified with “to entertain the suit,” theexpression used is ‘jurisdiction to entertain the suit.’ The Courthas jurisdiction to entertain a suit when it has jurisdiction toreceive it for consideration. If at the threshold, the Court cannotconsider it, it can be said that the Court has no jurisdiction toentertain the case. It is like a suit is cognizable by RevenueCourt, but it is filed in Civil Court, the Court cannot consider itnor can receive it for trial. When the separate statutorymechanism is provided for the consideration of a particulardispute and jurisdiction of Civil Court is barred, and if it isbrought before the Civil Court whose jurisdiction is barred, itcannot entertain such a suit and receive it for consideration. Itcan be said that the Court has no jurisdiction to entertain sucha suit. The expression “jurisdiction to entertain” is also usedin Section 14 of the Limitation Act. The provisions of Section A

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A14 provide that in case a suit is filed in the wrong court and theCourt from the defects of jurisdiction is unable to entertain it,the period to institute a suit can be extended. [Para 28-29] [828-F-H; 829-A-B]

2.2 The expression ‘entertain’ means to admit a thing forBconsideration. When a suit or proceeding is not thrown out inlimine, but the court receives it for consideration for disposalunder the law, it must be regarded as entertaining the suit orproceeding. It is inconsequential what is the final decision. Theexpression ‘entertain’ means to adjudicate upon or to proceedto consider on merits. [Para 31, 32] [830-F-H]C

The Premier Automobiles Ltd. v. Kamlakar ShantaramWadke & Ors., AIR 1975 SC 2238 : [1976] 1 SCR427 – affirmed.

Lakshmiratan Engineering Works Ltd. v. AssistantDCommissioner, Sales Tax, Kanpur AIR 1968 SC 488 :[1968] SCR 505 ; Hindusthan Commercial Bank Ltd.v. Punnu Sahu (Dead) through Legal Representatives(1971) 3 SCC 124 ; Kashiram v. Santokhbai AIR 1958MP 91 ; Nakul Chandra Ghose v. Shyamapada GhoseAIR 1945 Cal 381 – referred to.EIN RE: DIFFERENCE BETWEEN EXISTENCE ANDEXERCISE OF JURISDICTION

3.1 There is a difference between the existence ofjurisdiction and the exercise of jurisdiction. In case jurisdictionFis exercised with material irregularity or with illegality, it wouldalso constitute jurisdictional error. However, if a court hasjurisdiction to entertain a suit but in exercise of jurisdiction, amistake has been committed, though it would be a jurisdictionalerror but not lack of it. It may be a jurisdictional error open forinterference in appellate or revisional jurisdiction. In a case,Gjurisdictional facts, as well as adjudicatory facts, may arise. Whenjurisdictional facts to entertain are missing, the court/tribunalcannot act at all. In the case of adjudicatory facts, the court canproceed with the trial of the case exercising jurisdiction, and thesame implies that the court has the jurisdiction to deal with theHmatter, that is called the power to examine on merits.

Adjudication is the power to proceed to consider on merits.[Paras 33, 36] [831-G; 832-H; 833-A]

Dabur India Limited v. K. R. Industries, (2008) 10 SCC595 : [2008] 9 SCR 652 ; Bhai Jai Kishen Singh v.Peoples Bank of Northern India (in liquidation)through Bhagwati Shankar, Official Liquidator, AIR1944 Lah 136 ; Union of India v. Tarachand Guptaand Bros., (1971) 1 SCC 486 : [1971] SCR 557 ;Official Trustee, West Bengal v. Sachindra NathChatterjee, AIR 1969 SC 823 : [1969] SCR 92 –referred to Anisminic Ltd. v. Foreign Compensation Commission,[1968] 2 Q.B. 862 – referred to.

3.2 When a claim is dismissed as barred by limitation, nodoubt the refusal is within the realm of exercise of jurisdictionby the Court or Tribunal. It cannot be said that the Court hasrefused to exercise the jurisdiction to go into the merits by awrong decision dismissing the case on the ground of limitation.An erroneous decision on the question of res judicata orlimitation would not oust the jurisdiction of the Court nor renderthe decision a nullity liable to collateral attack. The test of havingno jurisdiction by the Court is that its judgment is amenable toattack in collateral proceedings. In a case barred by limitation,Court has jurisdiction to decide the issue. In case it has nojurisdiction, it cannot decide such an issue on merits at all. [Paras40-42] [837-A-B; 840-D-F]

M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427 : [1973]1 SCR 697 ; Budhia Swain & others v. Gopinath Deband others, (1999) 4 SCC 396 : [1999] 2 SCR 1189– relied on.

National Thermal Power Corpn. Ltd. v. SiemensAtkeingesellschaft, (2007) 4 SCC 451 : [2007] 3 SCR399 – held inapplicable.

IN RE: JURISDICTION TO ENTERTAIN UNDERSECTION 9A, CPC

4.1 The word “jurisdiction” in section 9A is qualified withexpression to ‘entertain’ the suit. Thus, it is apparent that the A

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Ascope of Section 9A has been narrowed down by the legislatureas compared to the provisions contained in Order XIV Rule 2(2)by not including the provisions as to “a bar created by any otherlaw for the time being in force.” Since the expression used insection 9A as incorporated in Maharashtra, is “jurisdiction toentertain” that is in a narrower sense and its purport cannot beBtaken to be comprehensive. [Paras 43-44] [840-G-H; 841-A-B]

4.2 When considering what colour expression“jurisdiction” has in Section 9A, it is clearly in the context ofpower to entertain, jurisdiction takes colour from accompanyingCword ‘entertain’; i.e. the Court should have jurisdiction toreceive a case for consideration or to try it. In case there isno jurisdiction, court has no competence to give the relief, butif it has, it cannot give such relief for the reason that claim istime-barred by limitation or is barred by the principle of resjudicata or by bar created under any other law for the time beingDin force. When a case is barred by res judicata or limitation, itis not that the Court has no power to entertain it, but it is notpossible to grant the relief. Due to expiry of limitation to file asuit, extinguishment of right to property is provided underSection 27 of the Limitation Act. When Court dismisses a suitEon the ground of limitation, right to property is lost, to hold sothe court must have jurisdiction to entertain it. The Court isenjoined with a duty under Section 3 of the Limitation Act to takeinto consideration the bar of limitation by itself. The expression“bar to file a suit under any other law for the time being in force”Fincludes the one created by the Limitation Act. It cannot be saidto be included in the expression “jurisdiction to entertain” suitused in Section 9A. The Court has to receive a case forconsideration and entertain it, to look into the facts constitutinglimitation or bar created by any other law to give relief, it hasto decide the question on merits; then it has the power to dismissGthe same on the ground of limitation or such other bar createdby any other law. Thus, the meaning to be given to jurisdictionto entertain in Section 9A is a narrow one as to maintainability,the competence of the court to receive the suit for adjudicationis only covered under the provisions. The word entertain cannotHbe said to be the inability to grant relief on merits, but same relates to receiving a suit to initiate the very process for grantingrelief. [Para 45] [841-B-G]

Issues

4.3 As per Order XIV Rule 1, issues arise when a materialproposition of fact or law is affirmed by the one party and deniedby the other. The issues are framed on the material proposition,denied by another party. There are issues of facts and issuesof law. In case specific facts are admitted, and if the question oflaw arises which is dependent upon the outcome of admittedfacts, it is open to the Court to pronounce the judgment basedon admitted facts and the preliminary question of law under theprovisions of Order XIV Rule 2. In Order XIV Rule 2(1), theCourt may decide the case on a preliminary issue. It has topronounce the judgment on all issues. Order XIV Rule 2(2)makes a departure and Court may decide the question of law asto jurisdiction of the Court or a bar created to the suit by anylaw for the time being in force, such as under the Limitation Act.In a case question of limitation can be decided based on admittedfacts, it can be decided as a preliminary issue under Order XIVRule 2(2)(b). Once facts are disputed about limitation, thedetermination of the question of limitation also cannot be madeunder Order XIV Rule 2(2) as a preliminary issue or any othersuch issue of law which requires examination of the disputedfacts. In case of dispute as to facts, is necessary to bedetermined to give a finding on a question of law. Such questioncannot be decided as a preliminary issue. In a case, thequestion of jurisdiction also depends upon the proof of factswhich are disputed. It cannot be decided as a preliminary issueif the facts are disputed and the question of law is dependentupon the outcome of the investigation of facts, such question oflaw cannot be decided as a preliminary issue, is settledproposition of law either before the amendment of CPC and postamendment in the year 1976. [Paras 46, 47] [842-D-H; 843-A]

4.4 What is intended by Section 9A of the Code of CivilProcedure, 1908 (CPC) is the defect of jurisdiction. It may beinter alia territorial or concerning the subject matter. The defectof jurisdiction may be due to provisions of the law. It is only themaintainability of the suit before the court which is coveredwithin the purview of Section 9-A CPC as amended in A

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[2019] 15 S.C.R.

AMaharashtra. Section 3 of the Limitation Act provides thatsubject to the provisions contained in Sections 4 to 24 of theLimitation Act, every suit instituted, appeal preferred, and theapplication made after the prescribed period shall be dismissed,it nowhere provides that Court has no jurisdiction to deal withthe matter. Until and unless Court has the jurisdiction, it cannotBproceed to dismiss it on the ground of limitation under Section3. [Paras 49, 50] [843-C-G]

Raghunath Das v. Gokal Chand, AIR 1958 SC 827 :[1959] SCR 811 – relied on.

CIN RE: ORDER XIV RULE 2

5. The expressions used in the Order XIV Rule 2 asincorporated in the CPC by way of Amendment Act, 1976 dealswith the jurisdiction of the Court. The scope of Section 9A isdifferent as compared to the provisions of Order XIV Rule 2 andDthe scope of Section 9A is limited not as comprehensive as thatof Order XIV Rule 2. However, the concept of Order XIV Rule2 with respect to what can be treated as preliminary issue willbe applicable under Section 9A only in case question of“jurisdiction to entertain” arises, i.e., if it can be decided purelyas question of law, at the stage contemplated under Section 9A,Enot in case if it is a mixed question of law and fact, no evidencecan be recorded to decide the question under Section 9A, CPC.[Paras 52, 54] [844-D-G-H; 845-A]

Sajanbir Singh Anand and others v. Raminder KaurAnand and others (2018) 3 Mh.L.J. 892 ;FGunwantbhai Mulchand Shah v. Anton Elis Farel andothers, (2006) 3 SCC 634 : [2006] 2 SCR 886 ; IndianBank v. Maharashtra State Cooperative MarketingFederation Ltd., (1998) 5 SCC 69 : [1998] 3 SCR187 ; Sneh Lata Goel v. Pushplata and others, (2019)G3 SCC 594 : [2019] 1 SCR 463 ; Hiralal Patni v. KaliNath, AIR 1962 SC 199 : [1962] SCR 747 – referredto.

Abdul Rahman v. Prasony Bai and another, (2003) 1SCC 488 : [2002] 4 Suppl. SCR 260 – heldHinapplicable.

IN RE: MIXED QUESTION OF LAW AND FACT ANDORDER VII RULE 11 CPC

6.1 Question of limitation, in no case, can be said to be aquestion of jurisdiction of the Court in the context it has beenused in Section 9A CPC. It cannot be laid down as propositionof law under Order VII Rule 11(d) that plaint cannot be rejectedas barred by limitation. It can be said that it is permissible todo so mainly in a case where the plaint averment itself indicatethe cause of action to be barred by limitation and no furtherevidence is required to adjudicate the issue. [Paras 58, 62] [847-E; 848-F]

Major S.S. Khanna v. Brig. F.J. Dhillon AIR 1964 SC497 : [1964] SCR 409 ; Narne Rama Murthy v. RavulaSomasundaram & Ors. (2005) 6 SCC 614 : [2004] 6Suppl. SCR 1065 ; Satti Paradesi Samadhi andPillayar Temple v. M. Sankuntala (Dead) through LegalRepresentatives and others, (2015) 5 SCC 674 : [2014]9 SCR 221 ; Ramdayal Umraomal v. PannalalJagannathji, 1979 M.P.L.J 736 ; Sunni Central WaqfBoard and others v. Gopal Singh Vishrad and others,AIR 1991 All 89 ; Venkatesh r. Desai v. Smt. PushpaHosmani & Ors., ILR 2018 Kar 5095 ; Prithvi Raj v.Munnalal, 1957 RLW 323 ; Bhag Singh v. Nek Singh(1994) SCC OnLine P&H 594 ; State TradingCorporation of India Ltd. v. Government of the PeoplesRepublic of Bangladesh, ILR (1997) Del 229 ; NareshChandra Das v. Gopal Chandra Das, AIR 1991 Cal237 ; Taj Kerala Hotels & Resorts Ltd. v. Easytec IndiaPvt. Ltd., (2013) SCC OnLine Ker 20240 ;Madhabananda Govindasamy v. Manickam & Ors.,2016-1-L.W. 49 ; Angsley Investment Ltd. v. TurusShipping Service & Ors., AIR 2007 Guj 23 ;Chandrama Singh v. (D) through LRs v. Ram KishoreAgrawal & Ors., (2016) SCC OnLine Chh 1740 ;Naresh Chandra Gautam v. Chhote Khan, (2003) SCCOnLine Utt 12 ; Ramagya Tiwari v. Shib Kumar Sah& Ors., (2018) SCC OnLine Jah 578 ; Lalchand Sha& Ors. v. Kalabati Devi & Ors., (2008) 2 Gau LR561 ; J Mnthamma & Anr. v. Bayya Iiglamma & Ors.; A

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AVaish Aggarwal Panchayat v. Inder Kumar and others,AIR 2015 SC 3357 : [2015] SCR 637 ; Hareendranand others v. Sukumaran and others, (2018) 14 SCC187 – referred to.

6.2 In case averments in the plaint indicate that suit isBbarred, it is liable to be rejected before the stage of Section 9Aof CPC comes. Thus, the stage at which Order VII Rule 11(d)has to be applied, is at the threshold and the scope of Section9A is somewhat limited and different. Though the scope ofrejection of plaint under Order VII Rule 11(d) is broad enoughCwhich 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 thejurisdiction of the Court to entertain a suit. [Para 65] [852-D-E]

Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta andDOrs., (2006) 5 SCC 638 : [2006] 3 Suppl. SCR 414 ;Raghwendra Sharan Singh v. Ram Prasanna Singh(Dead) by Lrs., AIR 2019 SC 1430 ; N.V. SrinivasaMurthy & others v. Mariyamma (Dead) by proposedLRs. & Ors., (2005) 5 SCC 548 : [2005] 1 Suppl. SCR411 ; Suman Devi v. Manisha Devi & others, (2018) 9ESCC 808 : [2018] 10 SCR 26 – held inapplicable.IN RE: DECISION IN FORESHORE COOPERATIVEHOUSING SOCIETY LIMITED

7.1 In Foreshore Cooperative Housing Society Limited,Fdecision of the court in Pandurang Dhondi Chougule and otherdecisions have been relied on. In Pandurang Dhondi Chougule,the Constitution Bench has observed that plea of limitation is aplea of law, which concerns the jurisdiction of the court whichtries the proceedings. The Constitution Bench has not laid downthat question of limitation, and res judicata have to be tried as aGpreliminary issue. It cannot be disputed that the question of resjudicata and limitation pertains to the question of jurisdiction ofthe Court to pass a decree in the proceeding. In case proceedingis barred by limitation, the Court has no jurisdiction to pass adecree. The court had inherent jurisdiction and in the course ofHproceeding how the jurisdiction is to be exercised and what amounts to a case of a wrong decision in the course of theexercise of jurisdiction is another colour in which jurisdictionalerror has been gauged in Pandurang Dhondi Chougule. It wasnot a case of want of the existence of jurisdiction to decide theissue. The question of limitation and res judicata, are to bedecided within the realm of exercise of jurisdiction following thelaw. The finding on these pleas may oust the jurisdiction of theCourt to pass a decree as other laws bar it. Thus, these pleascan be termed as concerning with the question of jurisdiction,in the exercise thereof they have to be decided. The decisionrenders no help to espousing the cause of the respondents. InForeshore Cooperative Housing Society Limited, the court haswrongly applied a different colour of jurisdiction used undersection 115 CPC which was dealt with in Pandurang DhondiChougule case. It is a mismatch and does not merge with thecontext of provisions of section 9A CPC. [Para 66 and 67] [852-G; 853-G-H; 854-A-D]

Foreshore Cooperative Housing Society Limited v.Praveen D. Desai (Dead) through LegalRepresentatives and others, (2015) 6 SCC 412 : [2015]5 SCR 1075 ; Foreshore Cooperative Housing SocietyLimited v. Praveen D. Desai, (2009) 1 AIR Bom R477 ; 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 OnLineBom 1994 ; Naresh Lachnmandas Aswani v. HaridasAswani and others, (2013) SCC OnLine Bom 1368 ;Union of India and others v. N.K. Bhog and others,(2015) SCC OnLine Bom 664 – Not correct law Kamalakar Eknath Salunkhe v. Baburav VishnuJavalkar and Ors., (2015) 7 SCC 321 – affirmed Meher Singh v. Deepak Sawhney, (1998) 3 MLJ940 ; Sudesh v. Abdul Aziz, (2001) 1 Mh.L.J. 324 –overruled.

Smithkline Beecham Consumer Consumer Healthcarev. Hindustan Liver Limited, 2002 SCC OnLine Bom AB

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1337 ; Shraddha Associates v. St. Patrick’s Town Co-operative Housing Society Ltd., (2003) 2 Mh.L.J. 219– disapproved.

Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC1449 : [1965] SCR 800 ; A.R. Antulay v. R.S. NayakBand Anr., (1988) 2 SCC 602 : [1988] 1 Suppl. SCR1 ; Delhi Special Police Establishment, New Delhi v.Lt. Col. S.K Loraiya, (1972) 2 SCC 692 : [1973] 1SCR 1010 ; Smt. Ujjam Bai v. State of Uttar Pradesh,AIR 1962 SC 1621 : [1963] SCR 778 ; AnowarCHussain v. Ajay Kumar Mukherjee, AIR 1965 SC1651 ; M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427 :[1973] 1 SCR 697 ; Hari Prasad Mulshankar Trivediv. V.B. Raju and Ors., (1974) 3 SCC 415:[1974] 1SCR 548 ; Ittyavira Mathai v. Varkey Varkey and Anr.,AIR 1964 SC 907 : [ 1964] SCR 495 ; Maqbul AhmadDand others v. Onkar Pratap Narain, AIR 1935 PC85 ; Manick Chandra Nandy v. Debdas Nandy andothers, (1986) 1 SCC 512 ; ITW Signode India Ltd. v.Collector of Central Excise, (2004) 3 SCC 48 : [2003]5 Suppl. SCR 751 ; Kamlesh Babu and others v. LajpatERai Sharma and others, (2008) 12 SCC 577 : [2008]6 SCR 653 ; Indian Farmers Fertilizer CooperativeLimited v. Bhadra Products, (2018) 2 SCC 534 :[2018] 1 SCR 848 ; Pandurang Dhondi Chougule andOrs. v. Maruti Hari Jadhav and Ors, AIR 1966 SC153 : [1966] SCR 102 – referred to.

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IN RE: LITERAL INTERPRETATION

8. When literal meaning in Section 9A, CPC is taken, it isapparent that expression jurisdiction has been used in thecompany to entertain. Both the expressions taken together haveGto be given the meaning i.e., the Court should have the poweror inherent jurisdiction to receive a suit for consideration toinitiate a trial. When tested on the anvil of hardship caused bythe exclusion of question of limitation from the jurisdiction toentertain, being tested in the right spirit, it rebounds upon toHnegate the submission. [Para 76] [863-F]

Rohitash Kumar and others v. Om Prakash Sharma andothers, (2013) 11 SCC 451 : [2012] 13 SCR 47 ;Nalinakhya Bysack v. Shyam Sundar Haldar, AIR 1953SC 148 : [1953] SCR 533 – distinguished.

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Case Law Reference

[2015] 5 SCR 1075(2015) 7 SCC 321[1966] SCR 102[1965] SCR 800[1988] 1 Suppl. SCR 1[1973] 1 SCR 1010[1963] SCR 778AIR 1965 SC 1651[1973] 1 SCR 697[1968] SCR 505(1971) 3 SCC 124[2008] 9 SCR 652[1976] 1 SCR 427[1974] 1 SCR 548[1971] SCR 557[1969] SCR 92[2007] 3 SCR 399[1999] 2 SCR 1189[1959] SCR 811[2002] 4 Suppl. SCR 260[2006] 2 SCR 886[1998] 3 SCR 187[2019] 1 SCR 463[1962] SCR 747

CIVIL APPELLATE/INHERENT JURISDICTION : SpecialLeave Petition (Civil) Nos. 31982-31983 of 2013.

From the Judgment and Order dated 19.09.2013 and 20.09.2013Fof the High Court of Judicature at Bombay in AN No. 414 of 2008and in SN No. 414 of 2008 respectively.

With

Review Petition (Civil) No. 2856 of 2015 in Civil Appeal No. 3396of 2015.G

F. S. Nariman, Dr. A. M. Singhvi, Rakesh Dwivedi, MukulRohatgi, Gopal Jain, Sr. Advs., Rohan Kelkar, Ms. Nandini Gore,Ms. Tahira Karanjawala, Ms. Natasha Sehrawat, Arjun Sharma,Subhash Sharma, Ms. Olga Lume Pereira, Karamveer Singh Anand,Jasvir Singh Sabharwal, M/S. Karanjawala & Co., Mahesh Agarwal,HMs. Hemlata Jain, Ankur Saigal, Nooruddin Dhilla, Anirudh Hariani, Ms. Sukhda Wagle, Ms. Parul Shukla, E. C. Agrawala, Ms. PurnimaBhat, Ms. Garima Prashad, Kaushik Poddar, Abhimanyu Bhandari,Avishkar Singhvi, Ms. Roohina Dua, Cheitanya Madan, Ms. NattashaGarg, Ms. Gauri Rishi, Ms. Ranjeeta Rohatgi, Arav Pandit, NaveenKumar, Advs. for the appearing parties.

The Judgment of the Court was delivered by ARUN MISHRA, J.

1. The reference has been made by a Division Bench of thisCourt vide order dated 17.8.2015, doubting the correctness of thedecision of this Court in Foreshore Cooperative Housing SocietyLimited v. Praveen D. Desai (Dead) through Legal Representativesand others, (2015) 6 SCC 412 with respect to the interpretationprovisions 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 9Ais wide enough to include the issue of limitation as the expression hasbeen used in the broader sense and is not restricted to conventionaldefinition under pecuniary or territorial jurisdiction, the decision inKamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors.,(2015) 7 SCC 321, taking contrary view, is per incuriam in view ofthe larger Bench decision in Pandurang Dhondi Chougule and Ors.v. Maruti Hari Jadhav and Ors, AIR 1966 SC 153 as well as otherlarger Bench decisions.

2. In Kamalakar Eknath Salunkhe (supra) this Court has opinedthat issue of limitation cannot be decided as a preliminary issue ofjurisdiction under Sec 9, Reference has been made because ofdivergence in views.

3. The question arises for consideration as to the interpretationof expression ‘jurisdiction of the Court to entertain such suit’ used inSection 9A of CPC. Section 9A had been introduced initially by theCode of Civil Procedure (Maharashtra Amendment) Act, 1970 and afterthat reintroduced with slightly modified terms by the Code of CivilProcedure (Maharashtra Amendment) Act, 1977. After its repeal it hadbeen re-enacted with effect from 19.12.1977. It was felt necessary toreintroduce it after the extensive amendment made by the Parliamentin CPC by way of Amendment Act, 1976 with effect from 1.2.1977.

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4. Before we dilate further on the issue, we consider itappropriate to refer to the Statement of Objects and Reasons underthe original enactment at the time of introduction of Section 9A in theyear 1970. Following is the Statement of Objects and Reasons asmentioned in the Gazette dated 15.12.1969:

B“STATEMENT OF OBJECTS AND REASONS

The effect of the judgment of the High Court in Institute Indo-Portuguese vs. Borges, (1958) 60 Bom. L.R. 660 is that theBombay City Civil Court to grant interim relief cannot or neednot go into the question of jurisdiction. Sometimes declaratorysuits are filed in the City Court without a valid notice undersection 80 of the Code of Civil Procedure, 1908. Relying uponanother judgment of the High Court recorded on the 7[th]September 1961 in Appeal No.191 of 1960, it has been thepractice of the City Court to adjourn a notice of motion for aninjunction in a suit filed without such valid notice, which givestime to the plaintiff to give the notice. After expiry of the periodof notice, the plaintiff is allowed to withdraw the suit with libertyto file a fresh one. In the intervening period, the Court grantsan ad interim injunction and continues the same. This practiceof granting injunctions, without going into the question ofjurisdiction even though raised, has led to grave abuse. It istherefore proposed to provide that if a question of jurisdiction israised at the hearing of any application for granting or settingaside an order granting interim relief, the Court shall determinethat question first.

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S.K. WANKHEDEMinister for Law.S.H. BELAVADI

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Nagpur, dated the 6[th] December 1969

Nagpur dated the 15[th] December 1969

Secretary

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Maharashtra Legislative Assembly.”

The reason for the introduction of the provisions of Section 9Ain Maharashtra was that the suits used to be filed without notice underSection 80 of CPC. It related to bar on the institution of the suit withoutnotice. After expiry of the period of notice, the plaintiff used to beHallowed to withdraw the suit with liberty to file fresh one in the intervening period. The Court used to grant ad interim injunction andcontinue the same. The practice of granting an injunction without goinginto the question of jurisdiction has led to grave abuse of the provisionsof law. Thus, it was proposed that in case question of jurisdiction israised at the hearing of any applications for granting or setting asidean order granting interim relief, the Court shall determine that questionfirst. The provisions of Section 9A, as initially introduced in 1970, areextracted hereunder:

“9A.(1) If, at the hearing of any application for granting or settingaside an order granting any interim relief, whether by way ofinjunction, appointment of a receiver or otherwise, made in anysuit, an objection to the jurisdiction of the Court to entertain suchsuit is taken by any of the parties to the suit, the Court shallproceed to determine at the hearing of such application the issueas to the jurisdiction as a preliminary issue before granting orsetting aside the order granting the interim relief. Any suchapplication shall be heard and disposed of by the Court asexpeditiously as possible and shall not, in any case, be adjournedto the hearing of the suit.

(2) Notwithstanding anything contained in sub-section (1), at thehearing of any such application, the Court may grant such interimrelief as it may consider necessary pending determination by itof the preliminary issue as to the jurisdiction.”

5. The Statement of Objects and Reasons for re-introduction ofSection 9A in the year 1977 is the same. It has been re-enacted in aslightly revised form. The Statement of Objects and Reasons of there-enacted provisions in the year 1977 is extracted hereunder:

“STATEMENT OF OBJECTS AND REASONS

The Code of Civil Procedure, 1908 (V of 1908) has beenamended, in its application to the State of Maharashtra, by theCode 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 of1965) and by the Code of Civil Procedure (MaharashtraAmendment) Act, 1970 (Mah. XXV of 1970). By the first StateAct of 1953, the proviso to section 60(1) is amended to exemptthe amounts payable under the policies issued in pursuance of A

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the Rules for the Hyderabad State Life Insurance and ProvidentFund from attachment in execution of a decree. By the secondState Act of 1970, a new section 9-A has been inserted forproviding that whereby an application, in which interim relief issought or is sought to be set aside in any suit and objection tojurisdiction is taken, such issue should be decided by the Courtas a preliminary issue at the hearing of the application. TheCode also stands amended in its application to the Bombay areaof this State by the Code of Civil Procedure (BombayAmendment) Act, 1948 (Bom. LX of 1948) and in its applicationto the Hyderabad area of this State by the Code of CivilProcedure (Hyderabad Second Amendment) Act, 1953 (Hyd.XVIII of 1953). The first State Act of 1948 amends the provisoto section 60(1) to exempt from attachment, stipends, andgratuities allowed to pensioners of a local authority. The secondState Act of 1953 also amends the proviso to section 60(1) toexempt from attachment, the pension granted or continued bythe Central Government, the Government of the former State ofHyderabad or any other State Government on account of pastservices or present infirmities or as a compassionate allowance.

2. The Code has been extensively amended by the Code of CivilProcedure (Amendment) Act, 1976 (CIV of 1976) enacted byParliament. Section 97 of this Amendment Act provides interaliathat any amendments made in the Code by a State Legislaturebefore the commencement of that Act shall except in so far asthey are consistent with the Code as amended by the AmendmentAct, stand repealed. Unless there is an authoritative judicialpronouncement, it is difficult to say which of the StateAmendments are inconsistent with the Code as amended by theCentral Amendment Act of 1976 and which consequently standrepealed. All the amendments made in the Code by the StateActs, except the amendment made in the proviso to section 60(1)by the State Act of 1948, are useful and are required to becontinued. The amendment made by the State Act of 1948 is nomore required because it is now covered by the amendmentmade in clause (g) of the said proviso by the Central AmendmentAct of 1976. But to leave no room for any doubt whether theremaining State amendments continue to be in force or standrepealed, it is proposed that the old amendments should be repealed formally and in their places similar amendments maybe re-enacted, with the assent of the President under article254(2) of the Constitution, so that they may continue to prevailand be available in this State as before. The Bill is intended toachieve these objects.

3. The following notes on clauses explain the purposes of theseclauses:- Preamble.- It gives the background and main reasons for theproposed legislation.

Clauses 2 and 3.- Clause 2 formally repeals the State Act of1970 and the new section 9A inserted by it, to make way for re-enacting by clause 3 the same section in a slightly revised form.

Clause 4.- As the amendment made by the State Act of 1948 isincluded in the proviso to section 60(1) by the Central AmendmentAct of 1976, it is proposed to repeal this Act and the amendmentmade by it.

Clauses 5 and 6.- Clause 5 formally repeals the two-State Actsof 1953 by which the proviso to section 60(1) was amended togive some additional exemptions from attachment. Clause 6brings back these amendments with the necessary draftingchanges.

HUSSAIN M. DALWAI,

Dated the 5[th] ofMinister for Law and Judiciary.”October 1977.

The provisions of Section 9A as re-enacted in the year 1977contained a non-obstante clause concerning provisions of CPC or anyother law for the time being in force. Section 9A as re-introduced inthe year 1977 is extracted hereunder:

“9A. Whereof the hearing of application relating to interimrelief in a suit, objection to jurisdiction is taken, such issueto be decided by the Court as a preliminary issue.-(1)Notwithstanding anything contained in this Code or any other lawfor the time being in force, if, at the hearing of any applicationfor granting or setting aside an order granting any interim relief,whether by way of stay, injunction, appointment of a receiver or A

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Aotherwise, made in any suit, an objection to the Jurisdiction ofthe Court to entertain such a suit is taken by any of the partiesto the suit, the Court shall proceed to determine at the hearingof such application the issue as to the jurisdiction as a preliminaryissue before granting or setting aside the order granting theinterim relief. Any such application shall be heard and disposedBof by the Court as expeditiously as possible and shall not in anycase be adjourned to the hearing of the suit.

(2) Notwithstanding anything contained in sub-section (1), at thehearing of any such application, the Court may grant such interimrelief as it may consider necessary, pending determination by itCof the preliminary issue as to the jurisdiction.”

The provisions of Section 9A enable Court, dealing with theapplications for granting or setting aside interim injunction or forappointment of a receiver or otherwise, to deal with the objection as to“jurisdiction of the Court to entertain such suit”, as preliminary issueDand it shall not adjourn the matter to the hearing of the suit. Pendingdetermination of the preliminary issue as to jurisdiction, the Court iscompetent as per section 9A(2) to grant interim relief as it may considernecessary.

6. The State of Maharashtra on 27.06.2018 by the promulgationEof “Code of Civil Procedure (Maharashtra Amendment) Ordinance,2018” has deleted Section 9-A of the Code (in its application to theState of Maharashtra). Section 3 of the Ordinance provided as under:

“3. Notwithstanding the deletion of section 9A of the principalAct, -F“(1) Where consideration of a preliminary issue framed undersection 9A is pending on the date of commencement of the Codeof Civil Procedure (Maharashtra Amendment) Ordinance, 2018(hereinafter, in this section, referred to as “the AmendmentOrdinance”), the said issue shall be deemed to be an issue framedGunder Order XIV of the principal Act and shall be decided bythe Court, as it deems fit, along with all other issues, at the timeof final disposal of the suit itself…”

It was provided that preliminary issue framed under section 9Ashall be treated as an issue under Order XIV of CPC and be decidedHby the Court with other issues as it may deem fit. The above Ordinance was replaced by the Code of Civil Procedure (MaharashtraAmendment) Act, 2018 (Maharashtra Act No.LXI of 2018) (the 1[st]Amendment Act) on 29.10.2018.

7. On 15.12.2018, the State of Maharashtra enacted the “Codeof Civil Procedure (Maharashtra Amendment) (Amendment) Act, 2018”(the 2[nd] Amendment Act). Section 2 of Act reads as follows:

“2. In section 3 of the Code of Civil Procedure (MaharashtraAmendment) Act, 2018, for clause (1), the following clause shallbe substituted and shall be deemed to have been substituted witheffect from the 27[th] June, 2018, being the date of commencementof the said Act, namely :- “(1) where consideration of a preliminary issue framed undersection 9A is pending on the date of commencement of the Codeof 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 underSection 9A, as if the said section 9A has not been deleted.”

It is provided that if the court has ordered to decide an issue asa preliminary issue before the date of deletion of section 9A, it shall bedecided by the court as a preliminary issue. Thus, it has becomenecessary to decide the issue.

8. The provisions contained in Order XIV Rule 2 of CPC alsodeals with the framing of issues and the questions which can be triedas a preliminary issue before the amendment made in the year 1977 inCPC 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 maybe disposed of on the issues of law only, it shall try those issuesfirst, and for that purpose may, if it thinks fit, postpone thesettlement of the issues of fact until after the issues of law havebeen determined.”

It is apparent from the pre-amended provisions of Order XIVRule 2 that only a question of law could have been tried as a preliminaryissue, 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 onthe issue of law.

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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.- (1)Notwithstanding that a case may be disposed of on a preliminaryissue, the Court shall, subject to the provisions of sub-rule (2),pronounce judgment on all issues.

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(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 maybe disposed of on an issue of law only, it may try that issue firstif that issue relates to- C

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time beingin force, and for that purpose may, if it thinks fit,postpone the settlement of the other issues until afterthat issue has been determined, and may deal with thesuit in accordance with the decision on that issue.”

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A significant departure has been made in the amended provisionscontained in Order XIV Rule 2. Now it mandates the Court topronounce judgment on all issues notwithstanding that a case maybe disposed of on a preliminary issue. The intendment is to avoidremand in the appealable case for deciding the other issues. Incase the necessity arises, Order XIV Rule 2(2) enables the Courtto decide the issue of law as a preliminary issue in case the samerelates to (1) the jurisdiction of the Court or (2) a bar to the suitcreated by any law for the time being in force. After theamendment made in CPC in the year 1977, it contains two-foldprovision, the question of jurisdiction to entertain the suit has beenseparated 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.”

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10. In Kamalakar Eknath Salunkhe (supra), as to theGinterpretation of Section 9A, it has been opined that word jurisdictionin Section 9A is used in a narrow sense as to maintainability, only onthe question of inherent jurisdiction and does not contemplate issues oflimitation. The Court has observed:

“16. The expression “jurisdiction” in Section 9-A is used in anarrow sense, that is, the court’s authority to entertain the suit H

at the threshold. The limits of this authority are imposed by astatute, charter, or commission. If no restriction is imposed, thejurisdiction 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 territorialjurisdiction, pecuniary jurisdiction, and jurisdiction over the subject-matter is fundamental. Undoubtedly, the jurisdiction of a courtmay get restricted by a variety of circumstances expresslymentioned in a statute, charter, or commission. The inherentjurisdiction of a court depends upon the pecuniary and territoriallimits laid down by law and subject-matter of the suit. While thesuit might be barred due to non-compliance with specificprovisions of law, it does not follow that the non-compliance withthe said provisions is a defect which takes away the inherentjurisdiction of the court to try a suit or pass a decree. The lawof limitation operates on the bar on a party to agitate a casebefore a court in a suit, or other proceedings in which the courthas inherent jurisdiction to entertain but by operation of the lawof limitation, it would not warrant adjudication.

20. A perusal of the Statement of Objects and Reasons of theAmendment Act would clarify that Section 9-A talks ofmaintainability only on the question of inherent jurisdiction anddoes not contemplate issues of limitation. Section 9-A has beeninserted in the Code to prevent the abuse of court process wherea plaintiff drags a defendant to the trial of the suit on merits whenthe jurisdiction of the court itself is doubtful.

21. In the instant case, the preliminary issue framed by the trialcourt is about the question of limitation. Such issue would not bean issue on the jurisdiction of the court and, therefore, in ourconsidered opinion, the trial court was not justified in framing theissue of limitation as a preliminary issue by invoking its powerunder Section 9-A of the Code. The High Court has erred in notconsidering the statutory ambit of Section 9-A while approvingthe preliminary issue framed by the trial court and thus, rejectingthe writ petition filed by the appellant.”

11. Where in the recent decision of Foreshore CooperativeHousing Society Limited (supra), it has been held that decision inKamalakar Eknath Salunkhe (supra) is contrary to the law. The AB

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Aword jurisdiction in Section 9A is used in a broader sense. It has alsobeen held that Section 9A is mandatory and a complete departure fromthe provisions of Order XIV Rule 2. The question of limitation issynonym with jurisdiction, and if raised, the Court has to try it as apreliminary issue under Section 9A as applicable to the State ofMaharashtra. This Court in Foreshore Cooperative Housing SocietyBLimited (supra) has observed:

“56. With great respect, we are of the view that the decisionrendered by the Division Bench in Kamalakar Eknath Salunkhev. Baburav Vishnu Javalkar, (2015) 7 SCC 321 is contrary tothe law settled by the Constitution Bench and three-JudgeBenches of this Court, in Pandurang Dhondi Chougule v.Maruti Hari Jadhav (five-judge Bench), AIR 1966 SC 153followed by other Division Benches in Manick Chandra Nandyv. Debdas Nandy, (1986) 1 SCC 512, NTPC Ltd. v. SiemensAktiengesellschaft, (2007) 4 SCC 451, Official Trustee v.Sachindra Nath Chatterjee, AIR 1969 SC 823, ITW SignodeIndia Ltd. v. CCE, (2004) 3 SCC 48 and Kamlesh Babu v.Lajpat Rai Sharma, (2008) 12 SCC 577. The Constitution Benchdecision and other decisions given by the larger Bench are bindingon us. It appears that those decisions have not been brought tothe notice of the Division Bench taking a contrary view.

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61. Mr Nariman, learned Senior Counsel appearing for theappellant put heavy reliance on the decision in Ramesh B. Desaiv. Bipin Vadilal Mehta, (2006) 5 SCC 638, for the propositionthat a plea of limitation cannot be decided as an abstract principleof law divorced from facts as in every case the starting point oflimitation has to be ascertained which is entirely a question offact. A plea of limitation is a mixed question of law and fact. Inour considered opinion, in the decision as mentioned earlier, thisCourt was considering the provision of Order 14 Rule 2 CPC.While interpreting the provision of Order 14 Rule 2 this Courtwas of the view that the issue on limitation, being a mixed questionof law and fact is to be decided along with other issues ascontemplated under Order 14 Rule 2 CPC. As discussed above,Section 9-A of the Maharashtra Amendment Act makes acomplete departure from the procedure provided under Order 14Rule 2 CPC. Section 9-A mandates the court to decide the F

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jurisdiction of the court before proceeding with the suit andgranting interim relief by way of injunction.

62. At the cost of repetition, we observe that Section 9-A providesa self-contained scheme with a nonobstante clause whichmandates the court to follow the provision. It is a completedeparture from the provisions contained in Order 14 Rule 2 CPC.In other words, the nonobstante clause inserted by theMaharashtra Amendment Act of 1977 in Section 9-A and theexpress mandate of the section, the law intends to decide theissue relating to the jurisdiction of the court as a preliminary issuenotwithstanding the provision contained in Order 14 Rule 2 CPC.However, it is made clear that in other cases where the suitsare governed by the provisions of Order 14 Rule 2 CPC, it isthe discretion of the court to decide the issue based on the lawas a preliminary issue.”

It has also been observed that where the suits are governed bythe provisions of Order XIV Rule 2, it is the discretion of the Court todecide the issue based on the law as a preliminary issue.

SUBMISSIONS

12. It has been submitted by Shri F.S. Nariman, learned seniorcounsel appearing on behalf of the petitioner that decision in ForeshoreCooperative Housing Society Limited (supra) cannot be said to belaying down the law correctly. The CPC confers no jurisdiction uponthe Court to try a suit on a mixed question of law and facts as apreliminary issue. It is further submitted that the word jurisdiction hasbeen used in a narrow sense and Section 9-A does not cover thequestion of a suit being barred by any other provision of law. Thedecision in Meher Singh v. Deepak Sawhney, 1998 (3) MLJ 940 andSmithkline Beecham Consumer Consumer Healthcare v. HindustanLiver Limited, 2002 SCC OnLine Bom 1337 of the Bombay High Courtare directly in contravention to the law settled by this Court. The pleaof limitation is a mixed question of law and facts and cannot be decidedas an abstract principle divorced from the facts. The starting point oflimitation has to be ascertained, which is entirely a question of facts ineach case. In Pandurang Dhondi Chougule (supra), this Court wasconcerned with the interpretation of the scope of Section 115 of theCode. Because of the provisions of Section 115 when interference canbe made in a revision, it has been observed that limitation concerns A

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Ajurisdiction. The decision in Kamalakar Eknath Salunkhe (supra)cannot be said to be per incuriam, thus, it was not open to the DivisionBench to take a different view in the Foreshore Cooperative HousingSociety Limited (supra) when the Maharashtra legislature consciouslychose to re-enact Section 9A, it has used the expression jurisdictionand provision as to the suit was barred by any other law for the timeBbeing in force has not been added which included the law of limitationalso. Given the amended Order XIV Rule 2, the preliminary issue canonly be a pure question of law.

13. Shri Rakesh Dwivedi, Shri Mukul Rohatgi, Dr. AbhishekManu Singhvi, and Shri Gopal Jain, learned senior counsel appearingCon behalf of respondents submitted that Order XIV Rule 2, CPC hasno relevance for construing the expression an objection to thejurisdiction of the Court to entertain such suit. The provision enactedin 1970 and re-enacted in the year 1977 is the same. The object of there-introduction was to maintain and continue what was enacted beforeDthe CPC Amendment Act of 1976. The question of limitation and resjudicata is the one which can be decided as a preliminary issue underSection 9A of CPC. It is submitted that under Order XIII Rule 1, partiesare required to produce the documents in original on or before thesettlement of the issues. Under Order XII, parties can give notice foradmitting the documents. Under Order XII Rule 6, even a judgmentEcan be given on admitted facts. These are the stages before framingthe issue under Order XIV.

14. Consequently, under Order XIV Rule 2(2), the Court whiletrying issues would be entitled to look into the admitted facts in anycase. Under Order XIV Rule 4, the Court can examine a witness andFdocuments before framing issues. Therefore, there is no good reasonto prevent the Court from deciding issues of limitation based ondocuments produced, especially if they are admitted documents.

15. It is further submitted on behalf of respondents that theexpression jurisdiction used in Section 9A need not be qualified by theGword inherent, that would amount to re-writing the Statute and wouldbe against the contextual meaning to be given to Section 9A. The objectfor introducing the provision was not limited to objections about inherentjurisdiction, but to cover bar created by the statute and Section 80 isan illustration. Thus, the expression ‘barred under any law for the timeHbeing 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 Courtmay decide the issue of law as a preliminary issue that has not beenused in Section 9A. Thus, the provision deploys a broader spectrum.It is further submitted that the speedy conclusion of the trial is vital ifa case can be decided on the point of jurisdiction as also of limitation,then there is no rationale for keeping the case pending. Thus, Section9A buttress the idea of speedy justice. As President assent has beenreceived for the introduction of Section 9A, the same will have anoverriding effect on Order XIV Rule 2. The provision cannot be saidto be irrational or unreasonable in any manner. In case plaint indicatesthat it is barred by limitation, whether the fact can be seen and whatcan be tried as a preliminary issue would depend on the nature of theprovision of the statute and the public policy behind it. Judgment inForeshore Cooperative Housing Society Limited (supra) has laiddown the law correctly.

IN RE: MEANING OF WORD JURISDICTION

16. Jurisdiction is the power to decide and not merely the powerto 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 powerto decide rightly or wrongly. It is the power to hear and determine. Sameis the foundation of judicial proceedings. It does not depend upon thecorrectness of the decision made. It is the power to decide justiciablecontroversy and includes questions of law as well as facts on merits.Jurisdiction is the right to hear and determine. It does not depend uponwhether a decision is right or wrong. Jurisdiction means power toentertain a suit, consider merits, and render binding decisions, and“merits” means the various elements which enter into or qualifyplaintiff’s right to the relief sought. If the law confers a power to rendera judgment or decree, then the court has jurisdiction. The court musthave control over the subject matter, which comes within classificationlimits 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 ofparties as between each other but to the power of the court. Jurisdictionrelates to a class of cases to which a particular case belongs. Jurisdictionis the authority by which a judicial officer takes cognizance and decidesthe cases. It only presupposes the existence of a duly constituted court A

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Ahaving control over subject-matter which comes within classificationlimits of the law under which court has been established. It should havecontrol over the parties litigant, control over the parties’ territory, it mayalso relate to pecuniary as well as the nature of the class of cases.Jurisdiction is generally understood as the authority to decide, render ajudgment, inquire into the facts, to apply the law, and to pronounce aBjudgment. When there is the want of general power to act, the courthas no jurisdiction. When the court has the power to inquire into thefacts, apply the law, render binding judgment, and enforce it, the courthas jurisdiction. Judgment within a jurisdiction has to be immune fromcollateral attack on the ground of nullity. It has co-relation with theCconstitutional and statutory power of tribunal or court to hear anddetermine. It means the power or capacity fundamentally to entertain,hear, and determine.

18. Jurisdiction to entertain is distinguished from merits, error inthe exercise of jurisdiction or excess of jurisdiction.D19. Section 9 of the Code of Civil Procedure deals withjurisdiction 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) haveEjurisdiction to try all suits of a civil nature excepting suits of whichtheir cognizance is either expressly or impliedly barred.

Explanation I.- A suit in which the right to property or to anoffice is contested is a suit of a civil nature, notwithstanding thatsuch right may depend entirely on the decision of questions asFto religious rites or ceremonies.

Explanation II.- For the purposes of this section, it is immaterialwhether or not any fees are attached to the office referred to inExplanation I or whether or not such office is attached to aparticular place.”G

20. The words used in section 9 of the Code of Civil Procedureof 1882 “barred by any enactment for the time being in force” aresubstituted in the Code of Civil Procedure of 1908 by “either expresslyor impliedly barred.” Thus, the word “jurisdiction” under section 9correlates with the cognisance, i.e., is not barred either expressly orHimpliedly.

21. In Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC1449 at 1450, it is observed that the jurisdiction of a court means theextent of the authority of a court to administer justice prescribedconcerning the subject-matter, 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 determineis verbal cast of many colours. Jurisdiction is a legal shelter – a powerto bind despite a possible error in the decision. The Court observed:

“142. The expression “jurisdiction” or the power to determineis, it is said, a verbal cast of many colours. In the case ofTribunal, the error of law might become not merely an error inthe jurisdiction but might partake character in error of jurisdiction.However, otherwise, jurisdiction is a ‘legal shelter’ — a powerto bind despite a possible error in the decision. The existence ofjurisdiction does not depend on the correctness of its exercise.The authority to decide embodies a privilege to bind despite theerror, a privilege which is inherent in and indispensable to everyjudicial function. The characteristic attribute of a judicial act isthat it binds whether it be right or it is wrong. In Malkarjun BinShidramappa v. Narahari Bin Shivappa, (1900) 27 IA 216 theexecuting court had, quite wrongly, held that a particular personrepresented the estate of the deceased judgment-debtor and putthe property for sale in execution. The Judicial Committee said:

In so doing the court was exercising its jurisdiction. It made asad mistake, it is true, but a court has jurisdiction to decide wrongas well as right. If it decides wrong, the wronged party can onlytake the course prescribed by law for setting matters right; andif that course is not taken the decision, however wrong, cannotbe disturbed.”

23. In Delhi Special Police Establishment, New Delhi v. Lt.Col. S.K Loraiya, (1972) 2 SCC 692, the word jurisdiction has beeninterpreted in the context of Section 125 of the Army Act to signifythe original jurisdiction to take cognizance of a case. Following is theobservation:

“11. Section 125 of the Army Act provides that when a criminalcourt and a Court-Martial have each jurisdiction in respect ofan offence, it shall be in the discretion of the officer commanding A

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Athe army, any corps, division or independent brigade in which theaccused person is serving to decide before which court theproceedings shall be instituted, and if that officer decides thatthey should be instituted before a Court-Martial, he will directthat the accused person shall be detained in military custody.Section 122(1) and 125 both find place in Chapter X of the ArmyBAct. Section 125 supports our view that the Court-Martial alonehas jurisdiction to decide the issue of limitation under Section122(1). The word “jurisdiction” in Section 125 really signifies theinitial jurisdiction to take cognizance of a case. To put it in otherwords, it refers to the stage at which proceedings are institutedCin a court and not to the jurisdiction of the ordinary criminal courtand the Court-Martial to decide the case on merits. It appearsto us that Section 549(1) should be construed in the light ofSection 125 of the Army Act. Both the provisions have in mindthe object of avoiding a collision between the ordinary criminalcourt and the Court-Martial. So both of them should receive aDsimilar construction.”

24. In Smt. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC1621, the word jurisdiction employed in Section 9, CPC came up forconsideration. The Court held that jurisdiction means the authority toEdecide and observed:

“(15) Now, I come to a controversial area. What is the positionwith regard to an order made by a quasi-judicial authority in theundoubted exercise of its jurisdiction in pursuance of a provisionof law which is admittedly intra vires? It is necessary first toFclarify the concept of jurisdiction. Jurisdiction means authorityto decide. Whenever a judicial or quasi-judicial tribunal isempowered or required to enquire into a question of law or factfor the purpose of giving a decision on it, its findings thereoncannot be impeached collaterally or on an application for certiorari-but are binding until reversed on appeal. Where a quasijudicialGauthority has jurisdiction to decide a matter, it does not lose itsjurisdiction by coming to a wrong conclusion whether it is wrongin law or in fact. The question, whether a tribunal has jurisdictiondepends not on the truth or falsehood of the facts into which ithas to enquire, or upon the correctness of its findings on theseHfacts, but upon their nature, and it is determinable “at the H

commencement, not at the conclusion, of the inquiry’. (Rex v.Bolten [1841] I Q.B. 66.Thus, a tribunal empowered todetermine claims for compensation for loss of office hasjurisdiction to determine all questions of law and fact relating tothe measure of compensation and the tenure of the office, andit does not exceed its jurisdiction by determining any of thosequestions incorrectly, but it has no jurisdiction to entertain a claimfor reinstatement or damages for wrongful dismissal, and it willexceed its jurisdiction if it makes an order in such terms, for ithas no legal power to give any decision whatsoever on thosematters……

(Halsbury’s Laws of England, 3rd Edn. Vol. 11 page 59). Thecharacteristic attribute of judicial act or decision is that it binds,whether it be right or wrong. An error of law or fact committedby a judicial or quasi-judicial body cannot, in general, beimpeached otherwise than on appeal unless the erroneousdetermination relates to a matter on which the jurisdiction of thatbody depends. These principles govern not only the findings ofinferior courts stricto sensu but also the findings of administrativebodies which are held to be acting in a judicial capacity. Suchbodies are deemed to have been invested with power to err withinthe limits of their jurisdiction; and provided that they keep withinthose limits, their decisions must be accepted as valid unless setaside on appeal. Even the doctrine of res judicata has beenapplied to such decisions. (See Livingstone v. WestministerCorporation [1904] 2 K.B. 109; Re Birkenhead Corporation(1952) Ch. 359 Re 56 Denton Road Twickenham [1953] Ch. 51Society of Medical Officers of Health v. Hope [1959] 2 W.L.R.377. ….”

25. In Anowar Hussain v. Ajay Kumar Mukherjee, AIR 1965SC 1651, it was held that expression jurisdiction does not mean thepower to do or order the act impugned, but generally the authority ofthe Judicial Officer to act in the matter.

26. In M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427, the Courtrecognized that the word jurisdiction is a verbal coat of many colours.In Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors., (1974)

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A3 SCC 415, it was observed that expanse of jurisdiction would takecolour from its context.

27. The jurisdiction in Section 9A must be considered in thecontext it has been used. The word jurisdiction has to be interpreted inthe context which has been used in the various provisions. The wordB“jurisdiction” has been used in CPC in several provisions. Section 9deals with the jurisdiction to try all suits by a civil court except thosewhich are barred. Section 10 prohibits a Court from proceeding withthe trial. Section 11 and Explanation VIII are based upon the principleof res judicata. Section 21 defines objections to a jurisdiction such asthe place of suing and competence of Court regarding the pecuniaryClimits of its jurisdiction. Section 86 prohibits a suit against a foreignState in any Court otherwise competent to try the suit except with theconsent of Central Government. Section 135 refers to the matterpending for determination having jurisdiction therein. Order II Rule 3(2)contains a provision concerning the jurisdiction of the Court as regardsDthe suit. Order VII Rule 11(d) deals with the rejection of the plaint onthe ground being barred by law. Order VIII Rule 3-A(4) provides adefendant to put forth the objection as to the jurisdiction. Order XIVRule 2 distinguishes between preliminary issues relating to the jurisdictionof the Court or a bar to the suit created by any law for the time beingin force. Order XXIII Rule 3-A provides that no suit shall lie to setEaside a compromise decree. There are various other provisions in whichthe expression has been used.

IN RE: “ENTERTAIN THE SUIT”

28. When we consider provisions in Section 9A, the wordFjurisdiction is qualified with “to entertain the suit,” the expression usedis ‘jurisdiction to entertain the suit.’ The Court has jurisdiction toentertain 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 theCourt has no jurisdiction to entertain the case. It is like a suit iscognizable by Revenue Court, but it is filed in Civil Court, the CourtGcannot consider it nor can receive it for trial. It is like the jurisdictionto entertain the criminal appeal when the Court is not having inherentjurisdiction to consider the case; it can be said that the Court has nojurisdiction to entertain. When the separate statutory mechanism isprovided for the consideration of a particular dispute and jurisdiction ofHCivil 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 forconsideration. It can be said that the Court has no jurisdiction to entertainsuch 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 iscognizable in a consumer forum; a Civil Court cannot entertain it.

29. The expression “jurisdiction to entertain” is also used inSection 14 of the Limitation Act. The provisions of Section 14 providethat in case a suit is filed in the wrong court and the Court from thedefects of jurisdiction is unable to entertain it, the period to institute asuit can be extended.

30. The meaning of the word ‘entertain’ came up for considerationin Kashiram v. Santokhbai, AIR 1958 MP 91. The word ‘entertain’means to admit for consideration. It does not mean giving relief. Whenthe court receives it for consideration and disposal, according to law, itmust be regarded as entertaining the suit or proceedings. The HighCourt of Madhya Pradesh has observed as under:

“5. In our opinion, the contention advanced on behalf of theappellant must be given effect to. We have no doubt that S.14of the Limitation Act has no application to the facts of this case,and the plaintiff is not entitled to the benefit of that section. Beforethat section can apply, the prior proceeding must have beenfounded upon the same cause of action as that on which the latersuit is founded and the Court in which the prior proceeding wasprosecuted must have been unable to entertain it for the reasonsspecified, namely, defect of jurisdiction or other cause of a likenature. Now the words ‘which, from defect of jurisdiction, orother cause of a like nature, is unable to entertain it’ which occurin S.14(1) of the Limitation Act are very significant.

As pointed out by Mukherjee, J. (as he then was), in AIR 1945Cal 381 (B), the word ‘entertain’ means to admit forconsideration. It does not mean giving relief, and that when asuit or proceeding is not thrown out in limine but the Courtreceives it for consideration and disposal according to law, it mustbe regarded as entertaining the suit or proceeding, no matterwhatever the ultimate decision may be; and that a suit is to beregarded as not entertained by the Court only if it is thrown outat its inception and the Court does not decide it on its merits.”

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AThe learned Judge further observed that S.14 of the LimitationAct speaks of the inability of the Court to entertain a suit or proceedingon certain specific grounds, which are of a formal nature and thatinability to entertain a suit means not inability to grant relief to theplaintiff but inability to give him a trial at all. In our opinion when a suitis dismissed not because the Court had no jurisdiction to entertain it, orBfor any other cause of a like nature, but because it was misconceivedor because the proceeding or the suit was not one recognised by lawas legal in its initiation, then clearly S.14 of the Act is not attracted tosuch a suit.

This view is amply supported by the cases cited by the learnedCcounsel for the appellant and numerous other cases. Now, here, theplaintiff’s prior suit was dismissed not because of any defect ofjurisdiction or any other ground similar to it, but it was entertained anddismissed because it was wholly misconceived and the relief of renditionof accounts could not be granted against the son of a deceased agent.DThe suit was dismissed because the proceedings according to the trialCourt 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 theplaintiff’s suit is governed by Art.89, then it is clearly barred by timeand must be dismissed.”

EThe High Court of M.P. has relied upon the decision in NakulChandra Ghose v. Shyamapada Ghose, AIR 1945 Cal 381.

31. The expression ‘entertain’ means to admit a thing forconsideration. When a suit or proceeding is not thrown out in limine,but the court receives it for consideration for disposal under the law, itFmust be regarded as entertaining the suit or proceeding. It isinconsequential what is the final decision. The word ‘entertain’ has beenheld to mean to admit for consideration, as observed by this Court inLakshmiratan 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 asGobserved 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 tomean ‘adjudicate upon’ or ‘proceed to consider on merits.’ It has beenobserved in Hindusthan Commercial Bank Ltd. v. Punnu SahuH(Dead) through Legal Representatives, 1971 (3) SCC 124 as under:

“4. Before the High Court it was contended on behalf of theappellant, and that contention was repeated in this Court, thatClause (b) of the proviso did not govern the present proceedingsas the application in question had been filed several months beforethat clause was added to the proviso. It is the contention of theappellant that the expression “entertain” found in the provisorefers to the initiation of the proceedings and not to the stagewhen the Court takes up the application for consideration. This;contention was rejected by the High Court relying on the decisionof that court in Kundan Lal v. Jagan Nath Sharma, AIR 1982All 547. The same view had been taken by the said High Courtin Dhoom Chand Jain v. Chamanlal Gupta, AIR 1962 All 543and Haji Rahim Bux and Sons v. Firm Samiullah and Sons,AIR 1963 All 320 and again in Mahavir Singh v. GauriShankar, AIR 1964 All 289. These decisions have interpretedthe expression “entertain” as meaning ‘adjudicate upon’ or‘proceed to consider on merits.’ This view of the High Court hasbeen accepted as correct by this Court in LakshmiratanEngineering 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 thatClause (b) of the proviso did not apply to the presentproceedings.”

The word ‘entertain’ came up for consideration in HindusthanCommercial Bank Ltd. (supra) in the context of Order XXI Rule 90as amended by the Allahabad High Court. The expression entertain hasbeen 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 jurisdictionand the exercise of jurisdiction. In case jurisdiction is exercised withmaterial irregularity or with illegality, it would also constitute jurisdictionalerror. However, if a court has jurisdiction to entertain a suit but inexercise of jurisdiction, a mistake has been committed, though it wouldbe a jurisdictional error but not lack of it. It may be a jurisdictional erroropen for interference in appellate or revisional jurisdiction.

34. In Dabur India Limited v. K. R. Industries, 2008 10 SCC595, it has been observed that the jurisdiction under Order II Rules 2

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Aand 3 of the Code of Civil Procedure can be exercised only when thecourt has otherwise jurisdiction in respect of the cause of actionwherefor the action has been brought. The Court has observed:

“19. The question which was posed by the learned Single Judgeis as under:

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“The next question, however, which is more important iswhether the plaintiff can combine the two causes of action,one under the Copyright Act and the second under the Actof 1958 in a situation where this Court has the jurisdictioninsofar as cause of action under the Copyright Act isCconcerned but has no territorial jurisdiction to entertain thecause of action relating to Act of 1958.”

Noticing the provisions of Order 2 Rules 2 and 3 of the Code ofCivil Procedure enabling the plaintiff to combine more than onecauses of action, it was opined that the said provisions relate toDpecuniary jurisdiction. The said jurisdiction, however, can beexercised only in the event the court has otherwise jurisdictionin respect of the cause of action wherefor the action has beenbrought.”

35. The question of maintainability was also examined withEreference to jurisdiction in The Premier Automobiles Ltd. v. KamlakarShantaram Wadke & Ors., AIR 1975 SC 2238, it has been held thatin a Civil Court, suit was not maintainable for a decree for permanentinjunction as it had no jurisdiction to grant the relief or even a temporaryrelief. The Court held:

F “27.…… The better and more reasonable view, therefore, totake is that all workmen represented by the two plaintiffs soughtan order of injunction in the civil court to prevent an injury whichwas proposed to be caused to them in relation to their right underthe Act. Hence a suit for a decree for permanent injunction wasnot maintainable in the civil court as it had no jurisdiction to grantGthe relief or even a temporary relief.”

36. In a case, jurisdictional facts, as well as adjudicatory facts,may arise. When jurisdictional facts to entertain are missing, the court/Htribunal cannot act at all. In the case of adjudicatory facts, the court can proceed with the trial of the case exercising jurisdiction, and thesame implies that the court has the jurisdiction to deal with the matter,that is called the power to examine on merits. Adjudication is the powerto proceed to consider on merits.

37. In Bhai Jai Kishen Singh v. Peoples Bank of NorthernIndia (in liquidation) through Bhagwati Shankar, OfficialLiquidator, AIR 1944 Lah 136, it has been observed that jurisdictionissue is one like preliminary issue not where the proceedings weredismissed on merits. In Hari Prasad Mulshankar Trivedi v. V.B. Rajuand Ors., (1974) 3 SCC 415 in the context of word jurisdiction, thisCourt observed thus:

“28. We think that neither the decision of this Court inBaidyanath Panjiar v. Sita Ram Mahto, (1969) 2 SCC 447which took the view that violation of Section 23(3) of the 1950Act in entering or deleting the names of persons in the electoralrolls after the last date for making nomination relates to lack ofpower, nor the decision in Wopanso v. N.L. Oduya, (1971) 2 SCC550 and others which also suggests that where there was lackof power, the question can be gone into by the Court trying anelection petition, can, by analogy, be extended to an entry in theelectoral roll on the basis of a wrong adjudication of the questionof ordinary residence. Though the dividing line between lack ofjurisdiction or power and erroneous exercise of it has becomethin with the decision of the House of Lords in The Anisminiccase, (1967) 3 WLR 382 we do not think that the distinctionbetween the two has been completely wiped out. We are awareof the difficulty in formulating an exhaustive rule to tell whenthere is lack of power and when there is an erroneous exerciseof it. The difficulty has arisen because the word “jurisdiction” isan expression which is used in a variety of senses and takes itscolour from its context, (see per Diplock, J., at p. 394 in theAnisminic case). Whereas the “pure” theory of jurisdiction wouldreduce jurisdictional control to a vanishing point, the adoption ofa narrower meaning might result in a more useful legal concepteven though the formal structure of law may lose something ofits logical symmetry. “At bottom, the problem of defining theconcept of jurisdiction for purpose of judicial review has beenone of public policy rather than one of logic.” And viewed from A

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the aspect of public policy as reflected in the provisions of the1950 and 1951 Acts, we do not think that a wrong decision on aquestion of ordinary residence for the purpose of entering aperson’s name in the electoral roll should be treated as ajurisdictional error which can be judicially reviewed either in acivil court or before an election tribunal.”

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It is observed that expression “jurisdiction” is used in a varietyof senses and takes its colour from its context, in which it is used asobserved in Anisminic Ltd. v. Foreign Compensation Commission,C[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 beenobserved that it has both a narrow and broader meaning. In the senseof former, it means the authority to embark upon an enquiry, and latter,Dthe decision is in non-compliance with provisions of Act. It is observed:

“22. The principle thus is that exclusion of the jurisdiction of thecivil courts is not to be readily inferred. Such exclusion, however,is inferred where the statute gives finality to the order of thetribunal on which it confers jurisdiction and provides for adequateEremedy to do what the courts would normally do in such aproceeding before it. Even where a statute gives finality, such aprovision does not exclude cases where the provisions of theparticular statute have not been complied with, or the tribunalhas not acted in conformity with the fundamental principles ofjudicial procedure. The word “jurisdiction” has both a narrow andFa wider meaning. In the sense of the former, it means theauthority to embark upon an enquiry; in the sense of the latter, itis used in several aspects, one of such aspects being that thedecision of the tribunal is in non-compliance with the provisionsof the Act. Accordingly, a determination by a tribunal of aGquestion other than the one which the statute directs it to decidewould be a decision not under the provisions of the Act, andtherefore, in excess of its jurisdiction.”

39. Again, in Official Trustee, West Bengal v. Sachindra NathHChatterjee, 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 mustnot only have the jurisdiction to try the suit brought but must also havethe authority to pass the order sought from it. It should have the powerto hear and decide the issue. The Court observed:

“12. It is plain that if the learned judge had no jurisdiction to passthe order in question then the order is null and void. It is equallyplain that if he had jurisdiction to pronounce on the plea putforward before him the fact that he made an incorrect order oreven an illegal order cannot affect its validity. Therefore all thatwe have to see is whether Ramfry, J. had jurisdiction to entertainthe application made by the settlor.

13. What is meant by jurisdiction? This question is answered byMukherjee, Acting C.J., speaking for the full bench of theCalcutta High Court in Hirday Nath Roy v. RamachandraBarna Sarma. ILR 48 Cal 138 = AIR 1921 Cal 84 (FB). Atpage 146 of the report ILR (Cal) = (at p.36 of AIR) the learnedjudge explained what exactly is meant by jurisdiction. We cando no better than to quote his words:

“In the order of Reference to a Full Bench in the case of Sukhlalv. Tara Chand, (1905) ILR 33 Cal 68 (FB), it was stated thatjurisdiction may be defined to be the power of a Court to ‘hearand determine a cause, to adjudicate and exercise any judicialpower in relation to it:’ in other words, by jurisdiction is meant‘the authority which a court has to decide matters that arelitigated before it or to take cognizance of matters presented ina formal way for its decision.’ An examination of the cases inthe books discloses numerous attempts to define the term‘jurisdiction’, which has been stated to be ‘the power to hearand determine issues of law and fact’, “the authority by whichthe judicial officers take cognizance of and ‘decide causes’;” ‘theauthority to hear and decide a legal controversy’, “the power tohear and determine the subject-matter in controversy betweenparties to a suit and to adjudicate or exercise any judicial powerover them”; “the power to hear, determine and pronouncejudgment on the issues before the Court”; “the power or authoritywhich is conferred upon a Court by the Legislature to hear anddetermine causes between parties and to carry the judgments A

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836SUPREME COURT REPORTS

Ainto effect”; “the power to enquire into the facts, to apply thelaw, to pronounce the judgment and to carry it into execution”.”

40. In National Thermal Power Corpn. Ltd. v. SiemensAtkeingesellschaft, (2007) 4 SCC 451, the question came up forBconsideration before a Division Bench of the Court concerning what isa jurisdictional question and whether declining to go into the merits ofthe claim would amount to a refusal to exercise jurisdiction. The Courtheld that declining to go into the merits of a claim in a particular casemay amount to a refusal to exercise jurisdiction. What is jurisdictionalCquestion and jurisdiction was also considered by this Court. The questionof limitation involving the question of jurisdiction of the Court or Tribunalcame up for consideration, as a preliminary objection was raised as tomaintainability of the appeal. The relevant portion of discussion isextracted hereunder:

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“17. In the larger sense, any refusal to go into the merits of aclaim may be in the realm of jurisdiction. Even the dismissal ofthe claim as barred by limitation may, in a sense touch on thejurisdiction of the court or tribunal. When a claim is dismissedon the ground of it being barred by limitation, it will be, in a sense,Ea case of the court or tribunal refusing to exercise jurisdiction togo into the merits of the claim. In Pandurang Dhoni Chougulev. Maruti Hari Jadhav AIR 1996 SC 153, this Court observedthat: (AIR p. 155, para 10)

“It is well settled that a plea of limitation or a plea of resjudicata is a plea of law which concerns the jurisdiction ofthe court which tries the proceedings. A finding on these pleasin favour of the party raising them would oust the jurisdictionof the court, and so, an erroneous decision on these pleas canbe said to be concerned with questions of jurisdiction whichfall within the purview of Section 115 of the Code.”

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In a particular sense, therefore, any declining to go into the meritsof a claim could be said to be a case of refusal to exercisejurisdiction.

18. The expression “jurisdiction” is a word of many hues. ItsHcolour is to be discerned from the setting in which it is used. ….”

It is apparent that when a claim is dismissed as barred bylimitation, no doubt the refusal is within the realm of exercise ofjurisdiction by the Court or Tribunal. It cannot be said that theCourt has refused to exercise the jurisdiction to go into the meritsby a wrong decision dismissing the case on the ground oflimitation. In that context, Pandurang Dhondi Chougule(supra) has been relied upon which has dealt with the questionof jurisdiction under Section 115 of CPC. This Court has alsoobserved it in National Thermal Power Corpn. Ltd. (supra) thatin the question of jurisdiction, the expression jurisdiction is a wordof many hues and having a different meaning in which it is used.There is no dispute as to the abovementioned proposition laiddown by this Court. The question in the aforesaid decision wasnot relating to jurisdiction to entertain the matter and to passdecree immune from collateral challenge. Thus, the decision lendsno support to the cause of the respondents.

41. In M.L. Sethi v. R.P. Kapur (supra), the Court observed asunder:

“12. …..The jurisdiction of the High Court under Section 115 ofthe CPC is a limited one. As long ago as 1884, in Rajah AmirHassan Khan v. Sheo Baksh Singh, (1884) LR 11 IA 237, thePrivy Council made the following observation on Section 622 ofthe former Code of Civil Procedure, which was replaced bySection 115 of the Code of 1908:

“The question then is, did the Judges of the lower Courts inthis case, in the exercise of their jurisdiction, act illegally orwith material irregularity. It appears that they had perfectjurisdiction to decide the question which was before them, andthey did decide it. Whether they decided rightly or wrongly,they had jurisdiction to decide the case; and even if theydecided wrongly, they did not exercise their jurisdiction illegallyor with material irregularity.”

In Balakrishna Udayar v. Vasudeva Aiyar, (1917) LR 44 IA261, 267 the Board observed:

“It will be observed that the section applies to jurisdiction alone,the irregular exercise or non-exercise of it, or the illegalassumption of it. The section is not directed against AB

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conclusions of law or fact in which the question of jurisdictionis not involved.”

In N.S. Venkatagiri Ayyangar v. Hindu Religious EndowmentsBoard, Madras, (1948-49) LR 76 IA 73, the Judicial Committeesaid that Section 115 empowers the High Court to satisfy itselfon three matters, (a) that the order of the subordinate court iswithin its jurisdiction; (b) that the case is one in which the courtought to exercise jurisdiction; and (c) that in exercising jurisdictionthe court has not acted illegally, that is, in breach of some provisionof law, or with material irregularity, that is, by committing someerror of procedure in the course of the trial which is material inthat it may have affected the ultimate decision. And if the HighCourt is satisfied on those three matters, it has no power tointerfere because it differs from the conclusions of thesubordinate 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 LordReid ascribed to it in Anisminic Ltd. v. Foreign CompensationCommission, (1969) 2 AC 147, namely, the entitlement “to enterupon the enquiry in question.” If there was an entitlement to enterupon an enquiry, into the question, then any subsequent errorcould only be regarded as an error within the jurisdiction. Thebest known formulation of this theory is that made by LordDarman in R v. Bolton,(1841) 1 Q.B. 66. He said that thequestion of jurisdiction is determinable at the commencement, notat the conclusion of the enquiry.In Anisminic Ltd. case (supra)Lord Reid said:

“But there are many cases where, although the tribunal hadjurisdiction to enter on the enquiry it has done or failed to dosomething in the course of the enquiry which is of such anature that its decision is a nullity. It may have given itsdecision in bad faith. It may have made a decision which ithad no power to make. It may have failed in course of theenquiry to comply with the requirements of natural justice. Itmay in perfect good faith have misconstrued the provisionsgiving it power to act so that it failed to deal with the questionremitted to it and decided some question which was notremitted to it. It may have refused to take into account something which it was required to take into account. Or itmay have based its decision on some matter which, under theprovisions setting it up, it had no right to take into account. Ido not intend this list to be exhaustive.”

In the same case, Lord Pearce said:

“Lack of jurisdiction may arise in various ways. There maybe an absence of those formalities or things which areconditions precedent to the tribunal having any jurisdiction toembark on an enquiry. Or the tribunal may at the end makean order that it has no jurisdiction to make. Or, in theintervening stage while engaged on a proper enquiry, thetribunal may depart from the rules of natural justice; or it mayask itself the wrong questions; or it may take into accountmatters which it was not directed to take into account.Thereby it would step outside its jurisdiction. It would turn itsinquiry into something not directed by Parliament and fail tomake the inquiry which the Parliament did direct. Any of thesethings would cause its purported decision to be a nullity.”

The dicta of the majority of the House of Lords in the abovecase would show the extent to which ‘lack’ and ‘excess’ ofjurisdiction have been assimilated or, in other words, the extentto which we have moved away from the traditional concept of“jurisdiction.” The effect of the dicta, in that case is to reducethe difference between jurisdictional error and error of law withinjurisdiction almost to vanishing point. The practical effect of thedecision is that any error of law can be reckoned as jurisdictional.This comes perilously close to saying that there is jurisdiction ifthe decision is right in law but none if it is wrong. Almost anymisconstruction of a statute can be represented as “basing theirdecision on a matter with which they have no right to deal,”“imposing an unwarranted condition” or “addressing themselvesto a wrong question.” The majority opinion in the case leaves aCourt or Tribunal with virtually no margin of legal error. Whetherthere is excess of jurisdiction or merely error within jurisdictioncan be determined only by construing the empowering statute,which will give little guidance. It is really a question of how muchlatitude the court is prepared to allow. In the end, it can only bea value judgment (see H.N.R. Wade, “Constitutional and A

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Administrative Aspects of the Anisminic case”, Law QuarterlyReview, Vol. 85,1969, p. 198). Why is it that a wrong decisionon a question of limitation or res judicata was treated as ajurisdictional error and liable to be interfered with in revision? Itis a bit difficult to understand how an erroneous decision on aquestion of limitation or res judicata would oust the jurisdictionof the court in the primitive sense of the term and render thedecision or a decree embodying the decision a nullity liable tocollateral attack. The reason can only be that the error of lawwas considered as vital by the court. And there is no yardstickto determine the magnitude of the error other than the opinionof the Court.”

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It has been laid down that erroneous decision on the question ofres judicata or limitation would not oust the jurisdiction of the Courtnor render the decision a nullity liable to collateral attack. The test ofDhaving no jurisdiction by the Court is that its judgment is amenable toattack 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 issuewhether decree passed by the civil court in a suit which was barredEby limitation can be treated to be a nullity or not. It was observed thatsince the civil court had the jurisdiction to decide the suit although filedbeyond limitation, the same was not a nullity and observed thus:

“14. A suit or proceeding entertained and decided in spite of beingbarred by limitation is not without jurisdiction; at worst it can beFa case of illegality. ….”

Thus, it is apparent that in a case barred by limitation, Court hasjurisdiction to decide the issue. In case it has no jurisdiction, it cannotdecide such an issue on merits at all.

GIN RE: JURISDICTION TO ENTERTAIN UNDERSECTION 9A, CPC

43. The word “jurisdiction” in section 9A is qualified withexpression to ‘entertain’ the suit. Thus, it is apparent that the scope ofSection 9A has been narrowed down by the legislature as comparedHto 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 beingin force.”

44. Since the expression used in section 9A as incorporated inMaharashtra, is “jurisdiction to entertain” that is in a narrower senseand its purport cannot be taken to be comprehensive as laid down inForeshore Cooperative Housing Society Limited (supra).

45. When we consider what colour expression “jurisdiction” hasin Section 9A, it is clearly in the context of power to entertain,jurisdiction takes colour from accompanying word ‘entertain’; i.e. theCourt should have jurisdiction to receive a case for consideration or totry it. In case there is no jurisdiction, court has no competence to givethe relief, but if it has, it cannot give such relief for the reason thatclaim is time-barred by limitation or is barred by the principle of resjudicata or by bar created under any other law for the time being inforce. When a case is barred by res judicata or limitation, it is notthat the Court has no power to entertain it, but it is not possible to grantthe relief. Due to expiry of limitation to file a suit, extinguishment ofright to property is provided under Section 27 of the Limitation Act.When Court dismisses a suit on the ground of limitation, right to propertyis lost, to hold so the court must have jurisdiction to entertain it. TheCourt is enjoined with a duty under Section 3 of the Limitation Act totake 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 beincluded in the expression “jurisdiction to entertain” suit used in Section9A. The Court has to receive a case for consideration and entertain it,to look into the facts constituting limitation or bar created by any otherlaw to give relief, it has to decide the question on merits; then it hasthe power to dismiss the same on the ground of limitation or such otherbar created by any other law. Thus, the meaning to be given tojurisdiction to entertain in Section 9A is a narrow one as tomaintainability, the competence of the court to receive the suit foradjudication is only covered under the provisions. The word entertaincannot be said to be the inability to grant relief on merits, but samerelates to receiving a suit to initiate the very process for granting relief.

46. The provision has been carved out under Section 9A, CPCto decide, question of jurisdiction to entertain, at the stage of decidingthe interim application for injunction and the very purpose of enactment A

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Aof the same was that the suits were being instituted without serving anotice under Section 80, which at the time of initial incorporation ofprovisions could not have been instituted without serving a notice oftwo months. There was a bar to institute a suit. It became practicethat after obtaining injunction, suit was allowed to be withdrawn withliberty to file fresh suit after serving the notice. To take care of misuseBof the provisions, Section 9A was introduced in the year 1970 and hadbeen re-introduced again in 1977 to consider question of jurisdiction toentertain at the stage of granting injunction or setting aside. Theprovision has been inserted having the narrow meaning as at the stageof granting ex parte injunction; the question can be considered. TheCwritten statement, set-off and counterclaim are not filed, discovery,inspection, admission, production and summoning of the documentsstage has not reached and after the stages described above, framingof issues takes place under Order XIV. As per Order XIV Rule 1, issuesarise when a material proposition of fact or law is affirmed by the oneparty and denied by the other. The issues are framed on the materialDproposition, denied by another party. There are issues of facts andissues of law. In case specific facts are admitted, and if the questionof law arises which is dependent upon the outcome of admitted facts,it is open to the Court to pronounce the judgment based on admittedfacts and the preliminary question of law under the provisions of OrderEXIV Rule 2. In Order XIV Rule 2(1), the Court may decide the caseon a preliminary issue. It has to pronounce the judgment on all issues.Order XIV Rule 2(2) makes a departure and Court may decide thequestion of law as to jurisdiction of the Court or a bar created to thesuit by any law for the time being in force, such as under the LimitationAct.F

47. In a case question of limitation can be decided based onadmitted facts, it can be decided as a preliminary issue under OrderXIV Rule 2(2)(b). Once facts are disputed about limitation, thedetermination of the question of limitation also cannot be made underOrder XIV Rule 2(2) as a preliminary issue or any other such issue ofGlaw which requires examination of the disputed facts. In case of disputeas to facts, is necessary to be determined to give a finding on a questionof law. Such question cannot be decided as a preliminary issue. In acase, the question of jurisdiction also depends upon the proof of factswhich are disputed. It cannot be decided as a preliminary issue if theHfacts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot bedecided as a preliminary issue, is settled proposition of law either beforethe amendment of CPC and post amendment in the year 1976.

48. The suit/application which is barred by limitation is not aground of jurisdiction of the court to entertain a suit. If a plea of adversepossession has been taken under Article 65 of the Limitation Act, incase 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 hasto be dismissed on the ground of limitation, but proof of adversepossession for 12 years then the suit would be barred by limitation suchquestion as to limitation cannot be decided as a preliminary issue.

49. What is intended by Section 9A of the Code of CivilProcedure, 1908 (CPC) is the defect of jurisdiction. It may be interalia territorial or concerning the subject matter. The defect ofjurisdiction may be due to provisions of the law. In Raghunath Das v.Gokal Chand, AIR 1958 SC 827, the execution of award of the decreewas dismissed by the Court on the ground that decree was a nullity.The Court had no jurisdiction to pass a decree of the partition ofagricultural land. It held that defect of the jurisdiction in the court thatpassed decree became attached to decree itself as dismissal of the suitwas on account of the defect of jurisdiction. Thus, in our consideredopinion, it is only the maintainability of the suit before the court whichis covered within the purview of Section 9-A CPC as amended inMaharashtra.

50. Reliance has been placed on the provisions of Section 3 ofthe Limitation Act to submit that the Court cannot proceed with thesuit which is barred by limitation although limitation has not been setup as a defence. No doubt about it that Section 3 of the Act providesthat subject to the provisions contained in Sections 4 to 24 of theLimitation Act, every suit instituted, appeal preferred, and the applicationmade after the prescribed period shall be dismissed, it nowhere providesthat Court has no jurisdiction to deal with the matter. Until and unlessCourt has the jurisdiction, it cannot proceed to dismiss it on the groundof limitation under Section 3.

51. Within the ken of provisions of section 9A, CPC jurisdictionof the Court to entertain the suit has to be decided without recordingof evidence. Recording of evidence is not contemplated even at thestage of framing issue under Order XIV Rule 2 much less it can be A

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Aallowed at the stage of grant of injunction, it would be the grossestmisuse of the provisions of the law to permit the parties to adduce theevidence, to prove facts with respect to a preliminary issue of jurisdictionto entertain a suit. In case it is purely a question of law, it can be decidedwithin 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) ofBthe CPC. The scope is a somewhat limited one. Two full-fledged trialsby leading evidence are not contemplated in CPC, one of the preliminaryissue and another on other issues. Until and unless the question is pureof 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 preliminaryCissue, either under Section 9A or under Order XIV Rule 2 CPC. Beforeor after its amendment of CPC concerning both provisions, the positionis the same.

IN RE: ORDER XIV RULE 2

52. The expressions used in the Order XIV Rule 2 asDincorporated in the CPC by way of Amendment Act, 1976, firstly dealswith the jurisdiction of the Court or secondly a bar to the suit createdby any law for the time being in force. The expression used in the OrderXIV Rule 2(2)(a) deals with the jurisdiction of the Court.

53. In Sajanbir Singh Anand and others v. Raminder KaurEAnand and others, 2018 (3) Mh.L.J. 892; the question came up forconsideration as to the period of limitation for filing administration suit.It has been observed the relief claimed by the plaintiff has to be decidedon facts of the case, and aspect of limitation would have to beconsidered in the context. In an administration suit, the Limitation Act,F1963 does not prescribe specific article for determining the period oflimitation. There is no specific article for determination of the periodof limitation. The pleadings and the prayers of a suit for administrationwould have to be analysed, and after that, the relevant article is to bemade applicable.

G54. The submission was raised that Section 9A is repugnant toOrder XIV Rule 2. We have interpreted Section 9A and we find thatthe scope of Section 9A is different as compared to the provisions ofOrder XIV Rule 2 and the scope of Section 9A is limited not ascomprehensive as that of Order XIV Rule 2. However, the concept ofOrder XIV Rule 2 with respect to what can be treated as preliminaryHissue will be applicable under Section 9A only in case question of “jurisdiction to entertain” arises, i.e., if it can be decided purely asquestion of law, at the stage contemplated under Section 9A, not in caseif it is a mixed question of law and fact, no evidence can be recordedto decide the question under Section 9A, CPC.

55. In Abdul Rahman v. Prasony Bai and another, (2003) 1SCC 488, the provisions of Order XIV Rule 2 came up for consideration.Where facts are admitted, suit can be disposed of on preliminary issueand no particular procedure need be followed by the Court. It has beenheld that in particular, if facts are admitted, the issue of res judicataand constructive res judicata and also maintainability of the suit shouldbe 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 preliminaryissues, no particular procedure was required to be followed bythe High Court. In terms of Order 14 Rule 1 of the Code of CivilProcedure, a civil court can dispose of a suit on preliminary issues.It is neither in doubt nor in dispute that the issues of res judicataand/or constructive res judicata as also the maintainability of thesuit can be adjudicated upon as preliminary issues. Such issues,in fact, when facts are admitted, ordinarily should be decided as”preliminary issues.

In case facts are admitted, no doubt about it that under OrderXIV Rule 2, a suit can be decided even as to the question of resjudicata, 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 jurisdictionof the Court as a pure question of law at a preliminary stage. Thus,the decision in Abdul Rehman v. Prasony Bai (supra) rendered at thestage of Order XIV Rule 2, has no application to the controversy athand.

56. In Gunwantbhai Mulchand Shah v. Anton Elis Farel andothers, (2006) 3 SCC 634, the suit was filed for specific performance.The Court held that the question of limitation in the facts could not havebeen decided as a preliminary issue. The suit could not have beendismissed as barred by limitation for the relief of specific performance.Though the Court held that there was jurisdiction, the matter was A

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Aremitted to the trial court to decide all the issues, including limitationafter parties adduced evidence. In Indian Bank v. Maharashtra StateCooperative Marketing Federation Ltd., (1998) 5 SCC 69, it isobserved that there is jurisdiction to entertain when the question is ofapplicability of Section 10. This Court in Sneh Lata Goel v. Pushplataand others, (2019) 3 SCC 594 observed that given the provisions ofBSection 21 of CPC, no objection as to the place of suing should beallowed by the appellate court unless there is a consequent failure ofjustice. An objection raised in adjudicating court was as to territorialjurisdiction, which did not travel to the root or to the inherent lack ofjurisdiction of a civil court to entertain the suit. The competence to tryCa case has been considered in Hiralal Patni v. Kali Nath, AIR 1962SC 199 referred to in Sneh Lata Goel (supra), in which this Court hasobserved thus:

“13. Sub-section (1) of Section 21 provides that before raisingan objection to territorial jurisdiction before an appellate orDrevisional court, two conditions precedent must be fulfilled:

(i) The objection must be taken in the court of first instanceat the earliest possible opportunity; and

(ii) There has been a consequent failure of justice.

EThis provision which the legislature has designedly adopted wouldmake it abundantly clear that an objection to the want ofterritorial jurisdiction does not travel to the root of or to theinherent lack of jurisdiction of a civil court to entertain the suit.Hence, it has to be raised before the court of first instance atthe earliest opportunity, and in all cases where issues are settled,Fon or before such settlement. Moreover, it is only where thereis a consequent failure of justice that an objection as to the placeof suing can be entertained. Both these conditions have to besatisfied.

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14. The learned counsel appearing on behalf of the respondentsGhas submitted that the objection as to the lack of territorialjurisdiction was raised in the written statement before the trialcourt. But evidently, the suit was decreed ex parte after therespondents failed to participate in the proceedings. The provisionsof Section 21(1) contain a clear legislative mandate that anHobjection of this nature has to be raised at the earliest possible opportunity before issues are settled. Moreover, no such objectioncan be allowed to be raised even by an appellate or revisionaljurisdiction, unless both sets of conditions are fulfilled.”

It is in the context of the inherent lack of jurisdiction to entertainthe suit, the expression has been used in Section 9A.

IN RE: MIXED QUESTION OF LAW AND FACT ANDORDER VII RULE 11 CPC

57. A Three-Judge Bench of this Court in Major S.S. Khannav. Brig. F.J. Dhillon, AIR 1964 SC 497, has held that jurisdiction totry issues of law apart from the issues of fact may be exercised bythe 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 themixed 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 fromthe plaint averment only, that suit is barred by limitation, it can be triedas a preliminary issue even in the absence of plea of limitation raisedby the defendants. However, in cases where the question of limitationis a mixed question of fact and law and suit does not appear to be barredby limitation on the face of it, then the facts necessary to provelimitation, which have been pleaded have to be proved, on issues raisedand decided on evidence. However, in our considered opinion questionof limitation, in no case, can be said to be a question of jurisdiction ofthe 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 requiringan inquiry into the facts, cannot be tried as a preliminary issue. Themixed questions of law and facts cannot be decided as a preliminaryissue.

60. In Ramdayal Umraomal v. Pannalal Jagannathji, 1979M.P.L.J 736, a Full Bench of Madhya Pradesh High Court has observedthat under Order XIV Rule 2, mixed questions of law and fact requiringrecording of evidence cannot be tried as a preliminary issue. The issueof jurisdiction can be tried as a preliminary issue when it is an issue oflaw requiring no evidence to be adduced. Various High Courts havetaken a similar view in several decisions in Sunni Central Waqf Board A

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Aand others v. Gopal Singh Vishrad and others, AIR 1991 All 89,Venkatesh r. Desai v. Smt. Pushpa Hosmani & Ors., ILR 2018 Kar5095, Prithvi Raj v. Munnalal, 1957 RLW 323, Bhag Singh v. NekSingh 1994 SCC OnLine P&H 594, State Trading Corporation ofIndia Ltd. v. Government of the Peoples Republic of Bangladesh,ILR (1997) Del 229, Naresh Chandra Das v. Gopal Chandra Das,BAIR 1991 Cal 237, Taj Kerala Hotels & Resorts Ltd. v. Easytec IndiaPvt. Ltd., 2013 SCC OnLine Ker 20240, MadhabanandaGovindasamy v. Manickam & Ors., 2016-1-L.W. 49, AngsleyInvestment Ltd. v. Turus Shipping Service & Ors., AIR 2007 Guj23; Chandrama Singh v. (D) through LRs v. Ram Kishore AgrawalC& Ors., 2016 SCC OnLine Chh 1740, Naresh Chandra Gautam v.Chhote Khan, 2003 SCC OnLine Utt 12, Ramagya Tiwari v. ShibKumar 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.

D61. In Vaish Aggarwal Panchayat v. Inder Kumar and others,AIR 2015 SC 3357, the question came up for consideration of rejectionof the plaint under Order VII Rule 11 on the ground that same beingbarred by limitation. Mere ex facie reading of the plaint, it could not beheld that the suit was barred by time. The question of limitation becomesa mixed question of facts and law and cannot be decided as aEpreliminary issue as the framing of issues and taking evidence wasnecessary.

62. In our opinion, it cannot be laid down as proposition of lawunder Order VII Rule 11(d) that plaint cannot be rejected as barred bylimitation. It can be said that it is permissible to do so mainly in a caseFwhere the plaint averment itself indicate the cause of action to be barredby 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 limitationin the case being mixed question of law and facts, could not have beenGdecided as preliminary issue. The provision under which a plaint canbe rejected is provided in Order VII Rule 11(d). The language used inOrder VII Rule 11 is where averments made in plaint does not disclosea cause of action; relief claimed is undervalued, and the plaint is notcorrected in spite of the direction of the Court; plaint is insufficientlyHstamped, and in spite of Court’s order the plaintiff has failed to supply the requisite stamp duty; where the suit appears from the statement inthe 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. Whatis of significance under Order VII Rule 11 is that from the avermentsof plaint itself the suit is barred by any law and it would include limitationalso including bar created by any other law for the time being in force.For the rejection of plaint, averments made by the defendant in thewritten statement or otherwise cannot be seen, only the averments ofthe plaint are material and can be taken into consideration and no otherevidence.

64. The question concerning Order VII Rule 11 came up forconsideration in Ramesh B. Desai and Ors. v. Bipin Vadilal Mehtaand Ors., (2006) 5 SCC 638, as to the determination of the questionof limitation as a preliminary issue. The Court observed that the startingpoint of limitation has to be ascertained on facts in every case. A pleaof limitation cannot be decided as an abstract principle of law divorcedfrom 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 limitationcannot be decided as a preliminary issue without a decision on factsbased on the evidence that has to be adduced by the parties. The Courthas no jurisdiction under Order XIV Rule 2 to decide a mixed questionof law and facts as a preliminary issue. Following observations havebeen made:

“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that whereissues both of law and fact arise in the same suit, and the courtis of the opinion that the case or any part thereof may be disposedof on an issue of law only, it may try that issue first if that issuerelates to (a) the jurisdiction of the court, or (b) a bar to the suitcreated by any law for the time being in force. The provisionsof this Rule came up for consideration before this Court in MajorS.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 and it washeld as under (SCR p. 421)

“Under Order 14 Rule 2, Code of Civil Procedure where issuesboth of law and fact arise in the same suit, and the court is ofthe opinion that the case or any part thereof may be disposed ofon the issues of law only, it shall try those issues first, and forthat purpose may, if it thinks fit, postpone the settlement of theissues of fact until after the issues of law have been determined.

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AThe jurisdiction to try issues of law apart from the issues of factmay be exercised only where in the opinion of the court the wholesuit may be disposed of on the issues of law alone, but the Codeconfers no jurisdiction upon the court to try a suit on mixed issuesof law and fact as preliminary issues. Normally all the issues ina suit should be tried by the court; not to do so, especially whenBthe decision on issues even of law depend upon the decision ofissues of fact, would result in a lopsided trial of the suit.”

Though there has been a slight amendment in the language ofOrder 14 Rule 2 CPC by the amending Act, 1976 but the principleenunciated in the above-quoted decision still holds good and therecan be no departure from the principle that the Code confers nojurisdiction upon the court to try a suit on mixed issues of lawand fact as a preliminary issue and where the decision on issueof law depends upon decision of fact, it cannot be tried as apreliminary issue.”

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65. (a) Reliance has been placed on various decisions, underOrder VII Rule 11(d) in which expression has been used that plainthas to be rejected if any law bars it as per the averments made in theplaint. In Raghwendra Sharan Singh v. Ram Prasanna Singh(Dead) by Lrs., AIR 2019 SC 1430, it was held as under:

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“7. Applying the law laid down by this Court in the aforesaiddecisions on exercise of powers under Order 7 Rule 11 of theCPC to the facts of the case in hand and the averments in theplaint, we are of the opinion that both the Courts below havematerially erred in not rejecting the plaint in exercise of powersFunder Order 7 Rule 11 of the CPC. It is required to be notedthat it is not in dispute that the original Plaintiff himself executedthe gift deed along with his brother. The deed of gift was aregistered gift deed. The execution of the gift deed is not disputedby the Plaintiff. It is the case of the Plaintiff that the gift deedwas a showy deed of gift, and therefore the same is not bindingGon him. However, it is required to be noted that for approximately22 years, neither the Plaintiff nor his brother (who died on15.12.2002) claimed at any point of time that the gift deed wasshowy deed of gift. One of the executants of the gift deed -brother of the Plaintiff during his lifetime never claimed that theHgift deed was a showy deed of gift. It was the Appellant herein- H

original Defendant who filed the suit in the year 2001 for partition,and the said suit was filed against his brothers to which thePlaintiff was joined as Defendant No. 10. It appears that thesummon of the suit filed by the Defendant being T.S. (Partition)Suit No. 203 of 2001 was served upon the Defendant No. 10-Plaintiff herein in the year 2001 itself. Despite the same, heinstituted the present suit in the year 2003. Even from theaverments in the plaint, it appears that during these 22 years i.e.,the period from 1981 till 2001/2003, the suit property wasmortgaged by the Appellant herein-original Defendant and themortgage deed was executed by the Defendant. Therefore,considering the averments in the plaint and the bundle of factsstated in the plaint, we are of the opinion that by clever draftingthe Plaintiff has tried to bring the suit within the period of limitationwhich, 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, asstated above, and as the suit is clearly barred by law of limitation,the plaint is required to be rejected in exercise of powers underOrder 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 Courtobserved as under:

“16. The High Court does not seem to be right in rejecting theplaint on the ground that it does not disclose any “cause ofaction.” In our view, the trial court was right in coming to theconclusion that accepting all averments in the plaint, the suitseems to be barred by limitation. On critical examination of theplaint as discussed by us above, the suit seems to be clearlybarred on the facts stated in the plaint itself. The suit as framedis prima facie barred by the law of limitation, provisions of theSpecific Relief Act as also under Order 2 Rule 2 of the Code ofCivil 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 codefor the presentation of election petitions. The statute hasmandated that an election petition must be filed within a period AB

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SUPREME COURT REPORTS

Aof 30 days of the date of the declaration of results. This periodcannot be extended. The provision of Section 14 of the LimitationAct, 1963 would clearly stand excluded. The legislature havingmade a specific provision, any election petition which fails tocomply with the statute is liable to be dismissed. The High Courthas failed to notice both the binding judgments of this Court andBits own precedents on the subject, to which we have referred.The first respondent filed an election petition in the first instanceto which there was an objection to maintainability under Order7 Rule 11 CPC. Confronted with the objection under Order 7Rule 11, the first respondent obviated a decision thereon byCwithdrawing the election petition. The grant of liberty to file afresh election petition cannot obviate the bar of limitation. Thefresh election petition filed by the first respondent was beyondthe statutory period of 30 days and was hence liable to berejected.”DThe decisions described above under Order VII Rule 11, CPCdo not advance the submissions raised on behalf of respondents. In caseaverments in the plaint indicate that suit is barred, it is liable to berejected before the stage of Section 9A of CPC comes. Thus, the stageat which Order VII Rule 11(d) has to be applied, is at the thresholdand the scope of Section 9A is somewhat limited and different. ThoughEthe scope of rejection of plaint under Order VII Rule 11(d) is broadenough which includes rejection of the plaint in case any law bars it,however, only the averments in the plaint have to be seen, neverthelessSection 9A is limited in its operation as to the jurisdiction of the Courtto entertain a suit.IN RE: DECISION IN FORESHORE COOPERATIVEFHOUSING SOCIETY LIMITED

66. Now we consider decision relied on Foreshore CooperativeHousing Society Limited (supra) in which decision of the Court inPandurang Dhondi Chougule (supra) and other decisions have beenrelied on.G

67. In Pandurang Dhondi Chougule (supra), a decision ofConstitution Bench of this Court, the question of “jurisdiction” cameup for consideration in the context of provisions contained in Section115 of CPC to the extent of revisional powers of the High Court as towhat would constitute an error of question of law. The Court hasHobserved thus:

“10. Judicial decisions have examined the provisions of S.115 ofthe Code on several occasions. While exercising its jurisdictionunder S.115, it is not competent to the High Court to correcterrors of fact however gross they maybe, or even errors of law,unless the said errors have relation to the jurisdiction of the courtto 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 ajurisdiction not vested in it by law, or has failed to exercise ajurisdiction so vested, or has acted in the exercise of its jurisdictionillegally or with material irregularity that the revisional jurisdictionof the High Court can be properly invoked. It is conceivable thatpoints of law may arise in proceedings instituted beforesubordinate courts which are related to questions of jurisdiction.It is well settled that a plea of limitation or a plea of res judicatais a plea of law which concerns the jurisdiction of the court whichtries the proceedings. A finding on these pleas in favour of theparty raising them would oust the jurisdiction of the court, andso, an erroneous decision on these pleas can be said to beconcerned with questions of jurisdiction which fall within thepurview of S.115 of the Code. But an erroneous decision on aquestion of law reached by the subordinate court which has norelation to questions of jurisdiction of that court, cannot becorrected by the High Court under S.115.”

The High Court while exercising powers interfered in the questionof adjustment of debt on the ground that the district court has madewrong construction of particular decree. The question arose whetherthe High Court could have corrected such an error in the exercise ofthe revisional jurisdiction under Section 115 of CPC. This Court laiddown that the High Court has exceeded its jurisdiction as the High Courtis not competent to correct the error of fact, however, gross they maybe or even errors of law, unless the said errors have relation to thejurisdiction. In case the Court has exercised jurisdiction vested in itillegally, or with material irregularity, the High Court can interfere. Giventhe context of section 115, CPC, the Constitution Bench has observedthat plea of limitation is a plea of law, which concerns the jurisdictionof the court which tries the proceedings. The Constitution Bench hasnot laid down that question of limitation, and res judicata have to betried as a preliminary issue. It cannot be disputed as observed by thisCourt that the question of res judicata and limitation pertains to the AB

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Aquestion of jurisdiction of the Court to pass a decree in the proceeding.In case proceeding is barred by limitation, the Court has no jurisdictionto pass a decree. The court had inherent jurisdiction and in the courseof proceeding how the jurisdiction is to be exercised and what amountsto a case of a wrong decision in the course of the exercise of jurisdictionis another colour in which jurisdictional error has been gauged inBPandurang Dhondi Chougule (supra). It was not a case of want ofthe existence of jurisdiction to decide the issue.The question oflimitation and res judicata, are to be decided within the realm ofexercise of jurisdiction following the law. The finding on the pleasmentioned above may oust the jurisdiction of the Court to pass a decreeCas other laws bar it. Thus, these pleas can be termed as concerningwith the question of jurisdiction, in the exercise thereof they have tobe decided. The decision renders no help to espousing the cause ofthe respondents. In Foreshore Cooperative Housing Society Limited(supra) the court has wrongly applied a different colour of jurisdictionused under section 115 CPC which was dealt with in PandurangDDhondi Chougule case (supra). It is a mismatch and does not mergewith the context of provisions of section 9A CPC.

68. In Ittyavira Mathai v. Varkey Varkey and Anr., AIR 1964SC 907, the question of jurisdiction to try a suit has been distinguishedfrom the error of jurisdiction committed while exercising the same, cameEup for consideration before Four-Judge Bench of this Court. The Courthas observed that decree passed in the suit barred by time cannot besaid to be a nullity as the Court passing the same has the jurisdictionover the party and the subject-matter. A wrong decision is not the onefor which the Court had no jurisdiction. It had jurisdiction over the subjectFmatter, over the parties and therefore an error of decision would notmake a decree beyond jurisdiction. Section 3 of the Limitation Act alsocame up for consideration, which would be a simple error of law. Inthe said case jurisdictional issue has been wrongly decided as tolimitation. The decision of the Privy Council in Maqbul Ahmad andGothers v. Onkar Pratap Narain, AIR 1935 PC 85, has also beenreferred to in Ittyavira Mathai (supra) thus:

“8. The first point raised by Mr. Paikedy for the appellant is thatthe decree in OS No. 59 of 1093 obtained by Anantha Iyer andhis brother in the suit on the hypothecation bond executed byHIttiyavira in favour of Ramalinga Iyer was a nullity because the

suit was barred by time. Even assuming that the suit was barredby time, it is difficult to appreciate the contention of the learnedcounsel that the decree can be treated as a nullity and ignoredin subsequent litigation. If the suit was barred by time and yet,the court decreed it, the court would be committing illegality, andtherefore the aggrieved party would be entitled to have the decreeset aside by preferring an appeal against it. However, it is wellsettled that a court having jurisdiction over the subject-matter ofthe suit and the parties to it, though bound to decide right maydecide wrong; and that even though it decided wrong, it wouldnot be doing something which it had no jurisdiction to do. It hadthe jurisdiction over the subject matter, and it had the jurisdictionover the party and, therefore, merely because it made an errorin deciding a vital issue in the suit, it cannot be said that it hasacted beyond its jurisdiction. As has often been said, courts havejurisdiction to decide right or to decide wrong, and even thoughthey decide wrong, the decrees rendered by them cannot betreated as nullities. Learned counsel, however, referred us to thedecision of the Privy Council in Maqbul Ahmad v. Onkar PratapNarain Singh, AIR 1935 PC 85 and contended that since thecourt is bound under the provisions of S.3 of the Limitation Actto ascertain for itself whether the suit before it was within time,it would act without jurisdiction if it fails to do so. All that thedecision relied upon says is that S.3 of the Limitation Act isperemptory and that the court has to take notice of this provisionand give effect to it even though the point of limitation is notreferred to in the pleadings. The Privy Council has not said thatwhere the court fails to perform its duty, it acts withoutjurisdiction. If it fails to do its duty, it merely makes an error oflaw, and an error of law can be corrected only in the mannerlaid down in the Civil Procedure Code. If the party aggrieveddoes not take appropriate steps to have that error corrected, theerroneous decree will hold good and will not be open to challengeon the basis of being a nullity.”

69. The respondents have relied upon the decision in ManickChandra Nandy v. Debdas Nandy and others, (1986) 1 SCC 512,in which again question of exercise of revisional jurisdiction of the HighCourt under Section 115 of CPC arose. This Court pointed out thedifference between revisional and appellate jurisdiction. The trial court ABC

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Aheld that the application under Rule 13 of Order IX, CPC not to bebarred by limitation. This Court observed that the High Court is notcompetent in exercise of its revisional jurisdiction to come to a differentconclusion by examining the facts. Article 123 of the Limitation Actcame up for consideration in the case when the applicant knew of thepassing of the decree. Knowledge of passing of decree is a questionBof fact and would be a collateral fact upon which the determination ofthe question of jurisdiction of the court would depend. It was again acase of exercise of jurisdiction by the Court, in that context, observationshave been made about Section 115 which provides that in casejurisdiction has been exercised illegally or with material irregularity, theCHigh Court can interfere under Section 115 of CPC, not otherwise. InManick Chandra Nandy (supra), the following observations have beenmade:

“5. We are constrained to observe that the approach adopted bythe High Court in dealing with the two revisional applications wasDone not warranted by law. The High Court treated these twoapplications as if they were first appeals and not applicationsinvoking its jurisdiction under Section 115 of the Code of CivilProcedure. The nature, quality, and extent of appellate jurisdictionbeing exercised in the first appeal and of revisional jurisdictionare very different. The limits of revisional jurisdiction areEprescribed and its boundaries defined by Section 115 of the Codeof Civil Procedure. Under that section revisional jurisdiction isto be exercised by the High Court in a case in which no appeallies to it from the decision of a subordinate court if it appears toit that the subordinate court has exercised a jurisdiction not vestedFin it by law or has failed to exercise a jurisdiction vested in it bylaw or has acted in the exercise of its jurisdiction illegally or withmaterial irregularity. The exercise of revisional jurisdiction is thusconfined to questions of jurisdiction. While in a first appeal thecourt is free to decide all questions of law and fact which arisein the case, in the exercise of its revisional jurisdiction the HighGCourt is not entitled to reexamine or reassess the evidence onrecord and substitute its findings on facts for those of thesubordinate court. In the instant case, the respondents had raiseda plea that the appellant’s application under Rule 13 of OrderIX was barred by limitation. Now, a plea of limitation concernsHthe jurisdiction of the court which tries a proceeding, for a finding on this plea in favour of the party raising it would oust thejurisdiction of the court. In determining the correctness of thedecision reached by the subordinate court on such a plea, theHigh Court may at times have to go into a jurisdictional questionof law or fact, that is, it may have to decide collateral questionsupon the ascertainment of which the decision as to jurisdictiondepends. For the purpose of ascertaining whether the subordinatecourt has decided such a collateral question rightly, the HighCourt cannot, however, function as a court of first appeal so faras the assessment of evidence is concerned and substitute itsown findings for those arrived at by the subordinate court unlessany such finding is not in any way borne out by the evidence onthe record or is manifestly contrary to evidence or so palpablywrong that if allowed to stand, would result in grave injustice toa party.”

The word jurisdiction has a different contour under Section 115,CPC. The decision has no relevance as to the interpretation of theexpression ‘jurisdiction to entertain’, the context in which it has beenused 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 beenobserved that question of limitation involves a question of jurisdiction.Finding of fact on the question of jurisdiction would be a jurisdictionalfact. Such a question has to be determined having regard to the factsand 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 ajurisdictional fact. Such a jurisdictional question is to bedetermined having regard to both fact and law involved therein.The Tribunal, in our opinion, committed a manifest error in notdetermining the said question, particularly, when in the absenceof any finding of fact that such short-levy of excise duty relatedto any positive act on the part of the appellant by way of fraud,collusion, wilful misstatement or suppression of facts, the extendedperiod of limitation could not have been invoked and in that viewof the matter no show-cause notice in terms of Rule 10 couldhave been issued.”

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AThe above decision is of no help as it dealt with the exercise ofjurisdiction when the Court has it. The observation has been made notin the context of lack of jurisdiction to entertain a suit.

71. Reliance has further been placed on Kamlesh Babu andothers v. Lajpat Rai Sharma and others, (2008) 12 SCC 577, in whichBquestion arose for consideration as to the finding of the trial court whichheld that the suit was barred by limitation though the judgment wasreversed by the First Appellate Court. The previous finding was notdealt with by the First Appellate Court or the High Court. This Courtheld that plea of limitation maybe a mixed question of law and facts.This Court considered the provisions of limitation and Order VII RuleC11(d) and observed that in case of suit appears from the statement madein the plaint to be barred by law of limitation, the question of law as tojurisdiction of a Court goes to the very root of the court’s jurisdictionto entertain and decide a matter as otherwise decision rendered withoutjurisdiction will be a nullity. The expression nullity used by DivisionDBench in Kamlesh Babu (supra) cannot be said to be in the context ofthe limitation, but the question of jurisdiction when the Court has nopower to try the suit. In our opinion, a wrong decision on the questionof limitation will not render judgment a nullity. With great respect weobserve that the expression used by this Court in para 23 that wrongdecision on the question of limitation would render a judgment of theECourt having jurisdiction to decide the issue as a nullity is ex facieincorrect. It may be a case of illegal exercise of jurisdiction to decidethe issue, but judgment would not be a nullity.

72. The decision in Indian Farmers Fertilizer CooperativeLimited v. Bhadra Products, (2018) 2 SCC 534, has been referred byFrespondents in which the question came up for consideration as to theissue of the decision on limitation. This Court has observed that wrongdecision on the question of limitation or res judicata would oust thejurisdiction of the Court. The scope of jurisdiction under Section 16 ofthe Arbitration and Conciliation Act, 1996 has been explained. In ouropinion, the issue of res judicata and limitation can be decided if theGCourt has jurisdiction to entertain a suit, not otherwise.

73. The question of jurisdiction came up for consideration inIndian Farmers Fertilizer Cooperative Limited (supra), in which thisCourt observed that same is power of the court to hear and determinea case and to adjudicate or exercise any judicial power and its contextualHinterpretation has to be made. The Court observed:

“21. That “jurisdiction” is a coat of many colours, and that thesaid word displays a certain colour depending upon the contextin which it is mentioned, is well-settled. In the classic sense, inOfficial Trustee v. Sachindra Nath Chatterjee, AIR 1969 SC823, “jurisdiction” is stated to be: (SCR p. 99: AIR pp. 827-28,para 13)

“13. … ‘In the order of reference to a Full Bench in Sukh LalSheikh v. Tara Chand Ta, ILR (1906) 33 Cal 68, it was statedthat jurisdiction may be defined to be the power of a court tohear and determine a cause, to adjudicate and exercise anyjudicial power in relation to it; in other words, by jurisdictionis meant the authority which a court has to decide mattersthat are litigated before it or to take cognizance of matterspresented in a formal way for its decision. An examination ofthe cases in the books discloses numerous attempts to define theterm “jurisdiction”, which has been stated to be “the power tohear and determine issues of law and fact”, “the authority bywhich the judicial officers take cognizance of and decide causes”;“the authority to hear and decide a legal controversy”, “thepower to hear and determine the subject-matter in controversybetween parties to a suit and to adjudicate or exercise any judicialpower over them”; “the power to hear, determine and pronouncejudgment on the issues before the court”; “the power or authoritywhich is conferred upon a court by the legislature to hear anddetermine causes between parties and to carry the judgmentsinto effect”; “the power to enquire into the facts, to apply thelaw, to pronounce the judgment and to carry it into execution”.’(Mukherjee, Acting C.J., speaking for the Full Bench of theCalcutta High Court in Hirday Nath Roy v. Ram Chandra BarnaSarma, 1920 SCC OnLine Cal 85 : ILR (1921) 48 Cal 138, SCCOnLine Cal)””

In Indian Farmers Fertilizer Cooperative Limited (supra), itis further observed that if the Court having jurisdiction, has decided thequestion wrongly, it cannot be said that Court had no jurisdiction to doso and erroneous decision on question of jurisdiction or res judicatawould not oust the jurisdiction of the Court and render the decision anullity liable to collateral attack.

74. The decisions of Bombay High Court have also been reliedupon by the learned senior counsel appearing for the respondents. In A

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ASmithkline Beecham Consumer Healthcare (supra), the Court hasobserved that legislature has used the word in Section 9A in the broadersense and the Court is required to consider the bar to the maintainabilityof the suit under Section 9A of CPC. The High Court held that it hasa broader meaning where a statute bars the suit. In our opinion, thedecision cannot be said to be laying down the law correctly and as suchBsame is overruled. Reliance has also been placed on Sudesh v. AbdulAziz, 2001 (1) Mh.L.J. 324, in which the High Court has observed thatthe law has been laid down that any question of limitation based uponthe issue of jurisdiction has to be decided as a preliminary issue. Theview taken by the Court that since it is a mixed question of law andCfacts, could not be decided at the stage, was held to be erroneous underSection 9A. The decision in Sudesh v. Abdul Aziz (supra) cannot besaid to be laying down the law correctly and is as a result of thisoverruled.

75. Reliance has been placed on the decision of ShraddhaAssociates v. St. Patrick’s Town Co-operative Housing Society Ltd.,D2003 (2) Mh.L.J. 219, wherein a view has been taken that issueregarding limitation can be decided as a preliminary issue. Observationsmade in Shraddha Associates (supra) about the question of limitationfor Section 9A cannot be said to be laying down the correct propositionof law. Similar view taken in Foreshore Cooperative Housing SocietyELimited 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 NevilleWadia and others, 2012 SCC OnLine Bom 1994, NareshLachnmandas Aswani v. Haridas Aswani and others, 2013 SCCFOnLine Bom 1368 and Union of India and others v. N.K. Bhog andothers, 2015 SCC OnLine Bom 664, cannot be said to be laying downthe law correctly in regard to scope of Section 9A CPC as applicablein Maharashtra.

IN RE: LITERAL INTERPRETATIONG

76. The learned counsel appearing for the respondents urged thatthe Court cannot twist the clear language of the enactment to avoidany real or imaginary hardship which such literal interpretation maycause. Reliance has also been placed on Rohitash Kumar and othersv. Om Prakash Sharma and others, (2013) 11 SCC 451, in whichHfollowing observations have been made:

“23. There may be a statutory provision, which causes greathardship or inconvenience to either the party concerned, or toan individual, but the court has no choice but to enforce it in fullrigour. It is a well-settled principle of interpretation that hardshipor inconvenience caused cannot be used as a basis to alter themeaning of the language employed by the legislature if suchmeaning is clear upon a bare perusal of the statute. If thelanguage is plain and hence allows only one meaning, the samehas to be given effect to, even if it causes hardship or possibleinjustice. [Vide CIT (Ag) v. Keshab Chandra Mandal AIR 1950SC 265 and D.D. Joshi v. Union of India (1983) 2 SCC 235.]

24. In Bengal Immunity Co. Ltd. v. State of Bihar AIR 1955SC 661 (SCC p. 685, para 43) it was observed by a ConstitutionBench of this Court that, if there is any hardship, it is for thelegislature to amend the law, and that the court cannot be calledupon to discard the cardinal rule of interpretation for the purposeof mitigating such hardship. If the language of an Act issufficiently clear, the court has to give effect to it, howeverinequitable or unjust the result may be. The words, “dura lexsed lex,” which mean “the law is hard, but it is the law” may beused, to sum up, the situation. Therefore, even if a statutoryprovision causes hardship to some people, it is not for the courtto amend the law. A legal enactment must be interpreted in itsplain and literal sense, as that is the first principle of interpretation.

25. In Mysore SEB v. Bangalore Woollen Cotton & Silk MillsLtd. AIR 1963 SC 1128 (AIR p. 1139, para 27) a ConstitutionBench of this Court held that “inconvenience is not” a decisivefactor to be considered while interpreting a statute. In MartinBurn 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 neveran evil. A court has no power to ignore that provision to relievewhat it considers a distress resulting from its operation. Astatute must, of course, be given effect to whether a courtlikes the result or not.”

(See also CIT v. Vegetables Products Ltd. (1973) 1 SCC 442and Tata Power Co. Ltd. v. Reliance Energy Ltd.(2009) 16 SCC659)

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26. Therefore, it is evident that the hardship caused to anindividual, cannot be a ground for not giving effective andgrammatical meaning to every word of the provision if thelanguage used therein is unequivocal.

Addition and subtraction of words

27. The court has to keep in mind the fact that, while interpretingthe provisions of a statute, it can neither add, nor subtract evena single word. The legal maxim “A verbis legis non estrecedendum” means, “from the words of law, there must be nodeparture.” A section is to be interpreted by reading all of itsparts 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 mustproceed on the footing that the legislature intended what it hassaid; even if there is some defect in the phraseology used by itin framing the statute, and it is not open to the court to add andamend, or by construction, make up for the deficiencies, whichhave 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 Actis woven. The Court, while interpreting statutory provisions,cannot add words to a statute, or read words into it which arenot part of it, especially when a literal reading of the sameproduces an intelligible result. (Vide Nalinakhya Bysack v.Shyam Sunder Haldar, AIR 1953 SC 148, Sri Ram Ram NarainMedhi v. State of Bombay, AIR 1959 SC 459, M. Pentiah v.Muddala Veeramallappa, AIR 1961 SC 1107, BalasinorNagrik Coop. Bank Ltd. v. Babubhai Shankerlal Pandya(1987) 1 SCC 606 and Dadi Jagannadham v. JammuluRamulu, (2001) 7 SCC 71. SCC pp. 78-79, para 13.)

28. The statute is not to be construed in light of certain notionsthat the legislature might have had in mind, or what the legislatureis 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 isnot permissible for the court to twist the clear language of theenactment in order to avoid any real or imaginary hardship whichsuch literal interpretation may cause.

29. In view of the above it becomes crystal clear that under thegarb of interpreting the provision, the court does not have the power to add or subtract even a single word, as it would notamount to interpretation, but legislation.”

Further, reliance has been placed on Nalinakhya Bysack v.Shyam Sundar Haldar, AIR 1953 SC 148. Following is the relevantobservation made:

“(9)…It must always be borne in mind, as said by Lord Halsburyin Commissioner for Special Purposes of Income Tax v.Pemsel, (1891) A.C. 531 (G) that it is not competent to any courtto proceed upon the assumption that the legislature has made amistake. The Court must proceed on the footing that thelegislature intended what it has said. Even if there is some defectin the phraseology used by the legislature, the court cannot, aspointed out in Crawford v. Spooner, 6 MOO. P.C. 1(H) aid thelegislature’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 Russellof Killowen in Hansraj Gupta v. Official Liquidator of DehraDun-Mussoorie Electric Tramway Co., Ltd., AIR 1933 P.J. 63(I) for others than the courts to remedy the defect. In our viewit is not right to give to the word “decree” a meaning other thanits ordinary accepted meaning and we are bound to say, in spiteof our profound respect for the opinions of the learned Judgeswho decided them, that the several cases relied on by therespondent 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 apparentthat 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 asuit for consideration to initiate a trial. When we test on the anvil ofhardship caused by the exclusion of question of limitation from thejurisdiction to entertain, being tested in the right spirit, it rebounds uponto negate the submission.

CONCLUSION

77. (a) Given the discussion above, we are of the consideredopinion that the jurisdiction to entertain has different connotation fromthe jurisdictional error committed in exercise thereof. There is adifference between the existence of jurisdiction and the exercise ofjurisdiction. The expression jurisdiction has been used in CPC at several A

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Aplaces in different contexts and takes colour from the context in whichit has been used. The existence of jurisdiction is reflected by the factof amenability of the judgment to attack in the collateral proceedings.If the court has an inherent lack of jurisdiction, its decision is open toattack as a nullity. While deciding the issues of the bar created by thelaw of limitation, res judicata, the Court must have jurisdiction to decideBthese issues. Under the provisions of section 9A and Order XIV Rule2, it is open to decide preliminary issues if it is purely a question of lawnot a mixed question of law and fact by recording evidence. The decisionin Foreshore Cooperative Housing Society Limited (supra) cannotbe said to be laying down the law correctly. We have considered theCdecisions referred to therein, they are in different contexts. The decisionof 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 bedecided 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, asDheld in Foreshore Cooperative Housing Society Limited (supra).

77. (b) Section 2 of Maharashtra Second Amendment Act, 2018which provides that where consideration of preliminary issue framedunder 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 sectionE9A as if the provision under section 9A has not been deleted, does notchange the legal scenario as to what can be decided as a preliminaryissue under section 9A, CPC, as applicable in Maharashtra. The savingcreated by the provision of section 2 where consideration of preliminaryissue framed under section 9A is pending on the date of commencementof the Code of Civil Procedure (Maharashtra Amendment) Act, 2018,Fcan be decided only if it comes within the parameters as found by uson the interpretation of section 9A. We reiterate that no issue can bedecided only under the guise of the provision that it has been framedunder section 9A and was pending consideration on the date ofcommencement of the (Maharashtra Amendment) Act, 2018. Thereference is answered accordingly.G

78. Let the matters be placed before an appropriate Bench forconsideration on merits.

H

Devika Gujral

Reference answered.