1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.75 OF 2006 IN NOTICE OF MOTION NO.1222 OF 2004 IN SUIT NO.2939 OF 1999 Foreshore Co-operative Housing Society Limited, A Co-operative Society registered under the Maharashtra Co-operative Societies Act,1960, having its registered office at 'ADVENT', at 12-A, Gen.Jagannathrao Bhosale Marg, ..Appellants/ Bombay – 400 021. Ori.Plaintiffs Versus 1. Shri.Praveen D.Desai, Indian Inhabitant of Bombay, residing at 207, Panchasheel, `C' Road, Churchgate, Bombay – 400 020. 2. Advent Corporation Pvt.Ltd. A Private Limited Company 2 incorporated under the Companies Act,1956, having its office at 5/64, Bombay Mutual Chambers, 19/21, Ambalal Doshi Marg, Fort, Bombay. 3. Shri N.L.Mehta, Indian Inhabitant of Bombay, residing at 301/2, Jupiter Apartments, Cuffe Parade, Bombay – 400 005. 4. Shri.Pankaj Mehta Indian Inhabitant of Bombay, residing at 301/2, Jupiter Apartments, Cuffe Parade, Bombay – 400 005. 5. Messrs Sharan & Mehta a partnership firm, carrying on business at and from Atlanta, 7th Floor, Nariman Point, Bombay – 400 021. 6. Sterlite Industries Ltd. A public limited Company incorporated under the Companies Act,1956 having its office at Maker Chambers III, Nariman Point, Bombay – 400 021. 7. The Municipal Corporation of Greater Bombay, a Statutory Body Incorporated 3 under the Bombay Municipal Corporation Act,1889, having its Head Office at Bombay Municipal Corporation, Mahapalika Marg, Bombay. 8. Gaurav Overseas Pvt.Ltd. A Private Limited Company incorporated under the Companies Act,1956 having its office at Maker Chambers III, ..Respondents Nariman Point, Bombay – 400 021. /Original Defendants) Mr.S.Doctor, M.Doctor, Aloukik Pai, Sagar Ghogane, Sandeep Aole i/b. Udwadia & Udeshi for the Appellants. Mr.Ravi Kadam, Advocate General, V.B.Naik, Vikram Trivedi, Faisal Sayyed and Mr.Durgesh Khanapurkar i/b.M.K.Ambalal & Co. for Respondent Nos.3 and 4. Mr.Gaikwad for Respondent No.7. Mr.D.D.Madon, Senior Counsel with Cyrus Ardishir and Paritosh Jaiswal i/b. Kanga & Co. for Respondent No.8. CORAM : DR.S.RADHAKRISHNAN & ANOOP V. MOHTA,JJ. JUDGMENT RESERVED ON : 17TH DECEMBER,2007 JUDGMENT PRONOUNCED ON : 17TH OCTOBER,2008 4 JUDGMENT (PER : DR.S.RADHAKRISHNAN,J.) 1. This is an appeal against the judgment and order dated 20.1.2006, passed by the Learned Single Judge of this Court. The Learned Single Judge has held that the question of limitation could be tried as a preliminary issue under Section 9A of the Code of Civil Procedure, 1908. The learned Single Judge did not allow the Appellants to claim the benefit of Section 14, Limitation Act, 1963 on the ground that the appellant had not proved the ‘institution’ of Suit No.6734/1994 at the Bombay City Civil Court to be "in good faith". The sequence of facts in the case are as follows: i) On 17.03.1958, the Golwalas, who were the original lessees of the suit property, entered into an agreement with Respondent No.1 ,under which he was granted right of development of a portion of the suit property. These development rights were transferred in favour of his company, ie, Respondent No.2. Pursuant to the power of attorney executed in favour of Respondent No.1 by the Golwalas, Respondent No.1 and/or 2 completed the construction of the building ‘Advent’ and sold flats therein to various persons on ownership basis. In 1966, the flat purchasers formed a co-operative society registered in the name of Foreshore Co-operative Housing Society Ltd., the Appellants in the present case. ii) Following this, an I.O.D. and commencement certificate for ‘Divya Prabha’ were granted by Respondent No.7 to Respondent No.1. The R.C.C. framework was constructed till 1968 by Respondent No.1 and 2. On 10.4.1968, notices were issued by 5 Respondent No.7 to stop work and to remove the unauthorized 10th floor slab and other irregularities. These notices were challenged by the Respondent No.1 in Suit No.6551 of 1968. The aforesaid suit was returned for presentation to the proper court and thereafter the same was abandoned by Respondent No.1 and 2. iii) In 1968-69, serious disputes arose between the Golwalas and Respondent Nos.1 and 2 regarding the failure of consideration and the breaches of terms and conditions of the agreements entered into between them. Notice was given to the B.M.C. and a public notice given in the newspaper regarding the termination of the Power of Attorney given to the Respondent no. 1 by Golwalas. On 25.03.1969, the original lessees assigned all their leasehold interest in the plot of land. On 25.03.1969, the Appellants by an unregistered agreement handed over the swimming pool on the property to Khurshed and Lily Golwala. On 28.06.1972, Respondent No.7 confirmed the Appellants as lawful assignees of the suit property. On 6.10. 1980, Respondent No.2 is alleged to have transferred his right in ‘Divya Prabha’ to Respondent no. 3 by virtue of alleged writing styled as Heads of Agreement. In August 1987, Respondent No.3 started gunniting work only on the R.C.C. shell framework of ‘Divya Prabha’. On 14.11.1987, Respondent No.7 issued a stop work notice to Respondent No.3, who challenged the same as being ultra vires and illegal and prayed for an injunction in the City Civil Court. Application for revalidation and/or further construction made by Respondent No.3 was rejected by Respondent No.7. 6 iv) On 14.10.1994, an agreement is alleged to have been entered into between Respondent Nos. 1-6 and Respondent No.8, whereby the former have purported to sell ‘Divya Prabha’ in favour of the latter. On 8.11.1994, the Appellants filed a suit No.6734 of 1994 for reliefs prayed therein in the Bombay City Civil Court. On 28.06.1996, the first revalidation of the I.O.D and commencement certificate was granted valid upto 19.06.1997. On 29.01.1997, the Appellants amended their plaint to challenge the aforestated revalidation. On 10.3.1997, an injunction was granted in suit No.6734 of 1994 with regard to the said revalidation. On 16.10.1997, the Respondent Nos. 1-6 and Respondent No.8, were allowed by the order of a Learned Single Judge of this Court to apply for permission since the revalidation letter had expired on 19.06.1997. The order also directed that a copy of any order that may be passed by the Respondent No.7 should be given to the Appellants. The Appellants allege that without communicating any permission granted, and in breach of the aforesaid order, Respondent No.8 entered onto the suit property forcibly and purported to carry out construction works in respect of ‘Divya Prabha’. The Appellants filed Civil Suit No.9957/1998 in this Court for injunction and for disclosure of any permission, if any, as per the aforesaid order. Revalidation certificates dated 28.9.1998 and 5.10.1998 were handed over by the Respondents. On 12.11.1998, an injunction order was granted by this Court in the abovementioned application for a period of six weeks from the date of the said order. 7 v) The Appellants took out a Chamber Summons No.1531 of 1998 in the City Civil Court for amendment of their plaint inter alia to challenge the alleged revalidation permission dated 18.9.1998 and 5.10.1998. The Appellants also took out a Notice of Motion No.1285 of 1999 inter alia praying for an injunction restraining Respondent Nos. 1-6 and Respondent No.8, from carrying out of construction in respect of shell structure ‘Divya Prabha’. This notice of motion was granted. On 17.03.1999, when the suit was on board for final hearing, the Respondent Nos.1 and 2 took out a Notice of Motion No.1435 of 1998 for framing a preliminary issue as to jurisdiction. On 16.04.1999, an order was passed by the learned City Civil Court Judge returning the plaint in Suit No.6734 of 1994 for presentation to this Court. On 18.05.1999, the Appellants filed the above Suit No.2939 of 1999 in this Court and ad-interim reliefs were refused. vi) As the order of injunction was in operation only till 26.05.1999, the Respondents entered upon the property on 27.05.1999 and carried out construction works until 1.07.1999. Respondent No.7, on 8/9.03.2004, granted revalidation certificate of the said I.O.D and Commencement Certificate. The Appellants took out a Chamber Summons No.478 of 2004 for amendment of the plaint to bring the aforesaid revalidation letter on record. An application was also made for ad-interim reliefs before the learned Single Judge which were refused. On 29.03.2004, Appeal No.235 of 2004 was filed against the aforesaid order and ad-interim reliefs were granted by the Division Bench of this Court. On the same date, a statement was 8 made by the officer of B.M.C that no commencement certificate had been issued in pursuance of the said revalidation. On 5.04.2004, the Division Bench while disposing off the appeal No.235 of 2004 were pleased to continue the injunction until 26.04.2004. On 6.05.2004, an ad-interim order was passed in Notice of Motion No.1222 of 2004 by this Court in favour of Appellants. vii) On 18.03.2005, a preliminary issue of jurisdiction under Section 9A of the Code of Civil Procedure was framed on the application of Original Defendant No.8. On 20.01.2006, an order was passed dismissing the suit of the Appellants on the ground of limitation. The present Appeal arises out of the said order. 2. Learned Senior Counsel Mr.Doctor appeared on behalf of the Appellants. This appeal has been filed against an order dated 20.1.2006, made by a Learned Single Judge of this Court. Mr.Doctor submitted that the Appellants have two main grievances against the abovementioned order: a. The Learned Single Judge has held that the present suit of the Appellants is barred by the Law of Limitation pursuant to an application made by Respondent No.8 under Section 9A of the Code of Civil Procedure, 1908. b. The Learned Single Judge had ignored the contention of the Appellants that the suit was within time, even without providing for the exclusion of time under Section 14 of the Limitation Act, 1963. The Learned Single Judge had erroneously held that the Appellants were required to plead and prove that the previous suit filed by the 9 Appellants in the Bombay City Civil Court in November, 1999 was “instituted” in good faith, to seek the benefit under Section 14 of the Limitation Act. 3. Mr.Doctor, the learned Senior Counsel submitted that Section 9A of the Code of Civil Procedure, pursuant to which the application made by Respondent No.8 was decided by the Learned Single Judge, has been repealed by Section 32, CPC (Amendment) Act, 1999 and Section 16, CPC (Amendment) Act, 2002. These amendments repeal any provisions of the Code of Civil Procedure, added by the State Legislatures or the High Courts, which are inconsistent with the CPC as originally enacted. Section 9A was inserted by an act of the Maharashtra State Legislature. Therefore in the light of the above amendments, Section 9A should be deemed to have been repealed. Mr.Doctor for the Appellants relied on a judgment of this Court dated 29 November, 2007, Madhuri Prabhakar Patole v. Aruna SatishChandra Gaikwad in support of this contention. In response, Mr.Madon, the learned Senior Counsel for the Respondents cited another judgment, M.Bagasarwalla v. Hind Rubber Industries (1997 3 SCC 443, para 16) to point out that there is no inconsistency between the provisions of Section 9A and Order XIV, Rule 2, CPC. However, Mr.Doctor for the Appellants distinguished the judgment cited by the Respondents. It was argued that it only analyses the power of courts to pass an interim order in a case where the defendant raises a plea pertaining to jurisdiction. It does not deal with the conflict between Section 9A and Order XIV, Rule 2. Moreover, this judgment relied upon by the Respondents was passed prior to the Amendment Acts of 1999 and 2002. However, a Division Bench of 10 this Court in Madhuri Prabhakar Patole Vs. Aruna Satishchandra Gaikwad 2008(1) Bom.C.R.709 has categorically held that the Code of Civil Procedure Amendment Act,2002, does not repeal Section 9A of Code of Civil Procedure. Hence, the above objection of Mr.Doctor cannot be sustained. 4. Mr.Doctor, the learned Senior Counsel for the Appellants Firstly very strongly contended that the bar of limitation cannot be regarded as an objection to the jurisdiction of the Court under Section 9A of the Code of Civil Procedure,1908. i) The term ‘jurisdiction’ as used in Section 9A of the Code of Civil Procedure,1908 must be construed harmoniously with Section 9, CPC. This was upheld in Smithkline Beechan Consumer Health Care v. Hindustan Lever Ltd and Others [2003 105 (2) Bom L.R. 547] ii) Mr.Doctor, cited judgments of Learned Single Judge of this Court pertaining to the question of limitation as a preliminary issue under Section 9A, CPC. In Sudesh w/o Sushilkumar Handa v Abdul Aziz, s/o Umarbhai and Another [2001 (1) Mh.L.J.324] wherein it was held that limitation can be decided as a preliminary issue under Section 9A. However, Mr.Doctor contended that in that case, the point of limitation was raised on the basis of pleadings in the plaint itself. Therefore, it could not be applied to cases where limitation was decided by allowing parties to lead evidence. Mr.Doctor for the Appellants also cited Fedroline Anthony Joseph v. Vinod Vishanji Dhanod and Others [2002 (3) Bom. L.R. 582, paras 5-13] and Shraddha Associates 11 and another v. St. Patrick’s Town Co-operative Housing Society Ltd. and others [2003 (3) Bom L.R. 814, paras 8- 21]. These cases have held that limitation cannot be decided as a preliminary issue under Section 9A of the Code of Civil Procedure,1908. Mr.Doctor also very strongly relied on a judgment delivered by a four-Judges bench of the Hon'ble Supreme Court in Ittyavira Mathai v. Varkey Varkey [AIR 1964 SC 907] wherein it was held that an objection to limitation is not an objection as to jurisdiction. Mr.Doctor submitted that the Learned Single Judge has failed to appreciate the ratio in Varkey’s case, confusing the ratio with the finding. In Varkey’s case, the decreeing of a suit barred by time is not a case of acting without jurisdiction, but is merely an act rendering the judgment illegal, and not a nullity. Mr.Doctor submitted that the Supreme Court has thus drawn a distinction between jurisdiction and limitation. iii) Mr.Doctor, the learned Senior Counsel for the Appellant submitted that the larger bench judgment in Pandurang Dhondi Chougule and others v. Maruti Hari Jadhav and others[AIR 1966 SC 153] is not relevant since it was passed in the context of revisional jurisdiction under Section 115 of Code of Civil Procedure. ‘Jurisdiction’ in Section 115 is applicable not only to suits, but other civil proceedings also. Therefore, it is used inan entirely different context from Section 9 of the Code of Civil Procedure,1908. iv) The learned Senior Counsel pointed out that the other judgments cited by the Respondents in support of equating a bar on limitation with exclusion of jurisdiction are not relevant as they have no 12 bearing on the interpretation of ‘jurisdiction’. These judgments pertain to matters under tribunals, statutory authorities under the Industrial Disputes Act, 1947 and the Indian Trusts Act, 1882. v) In Smithkline Beechan’s case, Mr.Doctor submitted that the question raised was as to whether a bar to a suit under the provisions of Order II, Rule 2, was a question of jurisdiction under Section 9A. Mr.Doctor submitted that this decision is not applicable as Order II, Rule 2 of the Code of Civil Procedure,1908 creates a complete bar, while limitation issue does not create a complete bar. vi) Mr.Doctor, the learned Senior Counsel for the Appellants also sought to demonstrate the distinction between limitation and a complete bar to jurisdiction by citing the provisions in several statutes, including Section 33, Maharashtra Rent Control Act, 1999 and Section 164 of the Maharashtra Co-operative Societies Act, 1960. vii) The learned Senior Counsel submitted that the question of limitation is generally one of both law and of fact. Therefore, based on the provisions of Order XIV, Rule 2 of the Code of Civil Procedure,1908, which requires judgment on all issues, while deciding a question of limitation, the Court must also decide all other issues. The same is mandatory even if the Court concludes that the suit to be barred by limitation. Thus, limitation cannot be said to create a bar as to jurisdiction. 13 5. Mr.Doctor, the learned Senior Counsel, Secondly contended that the suit framed and filed before the High Court was within time even without the benefit of Section 14 of Limitation Act, 1963. i) The Appellants claim that their causes of action are the letter of revalidation and the certificate issued by Respondent No.7 on 18.9.1998 and 5.10.1998 respectively, as also the alleged acts of trespass committed on 12.10.1998, 22.10.1998 and 24.10.1998. The main relief prayed for is an injunction, while the prayer for declaration of title is only ancillary. Therefore, Article 58, Limitation Act, 1963, upon which Respondent No.8 has relied, has no application. ii) The plea of adverse possession has been taken by the Respondents for the first time in the appeal. The same is mutually incompatible with their plea of ownership. The Appellants submit that the plea of adverse possession must be specifically pleaded and proved. The Respondents contend that the Appellants did not specifically state that the Respondents had removed themselves from the property. The Appellants submit that this stand is incorrect. They have stated that the property was formerly abandoned and that the Respondents have forcibly entered onto the property. 6. Mr.Doctor, the learned Senior Counsel, thirdly contended that the Appellants are entitled to claim the benefit of Section 14, Limitation Act, 1963, for the time spent in prosecuting Suit No.6734/1994 in the Bombay City Civil Court. 14 i) The Appellants submit that they have tendered evidence to show the prosecution of their suit in good faith, including inter alia, submitting the roznama, showing the numbering of the plaint and pointing out that no objection was taken to the pecuniary jurisdiction of the court by the Respondents. ii) The Learned Single Judge has, however, come to the conclusion that there is no material to show that the suit was ‘instituted’ in good faith. iii) In Vijaykumar Rampal and others v. Diwandari and others (AIR 1985 SC 1669), it was held that error in valuing a suit has nothing to do with the demonstration of the prosecution of the suit in good faith. This was followed in Deena v. Bharat Singh [2002(6) SCC 336] iv) The Appellants submit that there is no need to lead oral evidence as documentary evidence is sufficient in that behalf. v) The Respondents themselves allege that the court ceased to have jurisdiction only after the amendment of 1997. Thus, there can be no question of instituting the suit mala fide and the burden of proving this is on the Respondents. 15 vi) The Appellants contend that the judgments cited by the Respondents to prove that the suit must be “instituted” in good faith to claim the benefit of Section 14 are all prior to the amendment of Order VII, Rule 6. Also, they are all cases of gross negligence on the part of the advocates and mala fide,which is not so in the present case. vii) The Appellants have also cited a judgment of the Madhya Pradesh High Court in Binodilal v. Satyendra Singh [AIR 1956 M.P.97, para 3] to show that an endorsement on the plaint showing the date when the suit was originally instituted and an endorsement showing the date of return of the plaint for presentation to the proper court were held to be sufficient to claim the benefit of Section 14. viii) The Appellants have also distinguished Madhavrao Narayanrao [AIR 1958 SC 767] which was cited by the Respondents. In the present case, the valuation was mentioned in the plaint and the application for return of the plaint was made by the Respondents. Thus, the suit cannot be said to have been instituted in bad faith. 7. Learned Senior Counsel for the Respondent, Mr.Madon, put forth the following contentions: a) The bar of limitation can be raised as a preliminary issue as to jurisdiction under Section 9A, Code of Civil Procedure,1908. i) The learned Senior Counsel contended that a question of limitation is a question of jurisdiction and therefore ousts the court’s jurisdiction to decide the matter on merits. Therefore, a 16 question of limitation can be tried as a preliminary issue under Section 9A of Code of Civil Procedure,1908. ii) To support the contention that limitation ousts the jurisdiction of the court, it was submitted that Section 3, Limitation Act, 1963, provides that a suit, application or appeal after the prescribed period shall be dismissed even though limitation is not set up as a defence. (Emphasis supplied) iii) Mr. Madon cited several cases in support of his argument. For instance, in Pandurang Dhodi Chougule and others v. Maruti Hari Jadhav and others[AIR 1966 SC 153] a five-Judge bench of the Hon'ble Supreme Court has categorically held that limitation was a plea of law concerning jurisdiction and a finding in favour of the party raising it would oust the court’s jurisdiction. The same was reiterated in Manish Chandra Nandy v. Debdas Nandy [AIR 1986 SC 446]. iv) In Official Trustee W.B.and others v. Sachindranath Chatterjee and others [1969 (3) SCC 92] the Supreme Court held that jurisdiction is the power of the court to hear and determine a cause, to adjudicate and exercise any power in relation to it. In view of this ruling, Mr. Madon has argued that where a suit is barred by limitation, the court does not have the authority to pass the order sought for, and hence, 17 jurisdiction is ousted. In Sudesh w/o. Sushilkumar Handa v Abdul Aziz, s/o Umarbhai and Another [2001 (1) Mh.L.J.324] a Learned Single Judge of the Bombay High Court has held that limitation would expressly touch upon the question of jurisdiction. In Smithkline Beechan Consumer Health Care Vs. Hindustan Lever Ltd. and Others [2003 105 (2) Bom L.R. 547] a Division Bench of this Court held that Section 9A applies when a suit is barred by any statute. Therefore, Mr.Madon pointed out that "any statute" would also include Limitation Act. v) Mr.Madon, the learned Senior Counsel also sought to distinguish certain cases cited by the Appellants. For instance, in Fedroline Anthony Joseph v. Vinod Vishanji Dhanod and Others [2002 (3) Bom. L.R. 582],it was submitted that the judgment does not decide the question whether limitation can be tried as a preliminary issue under Section 9A. Similarly, the judgment in Shraddha Associates and another v. St. Patrick’s Town Co-operative Housing Society Ltd. and others [2003 (3) Bom L.R. 814] is per incuriam as it does not consider the Supreme Court Judgment in Chougule’s case. Moreover, in the Joseph case, a contrary view to Sudesh’ s case is not taken, as in that case, limitation was raised on the basis of pleadings in the plaint itself and,therefore cannot be applied to cases where the question is to be decided by allowing parties to lead evidence. The case of Ittyavira Mathai v. Varkey [AIR 18 1964 SC 907] would not hold in view of Chougule’s case, which was decided by a larger bench of the Hon'ble Supreme Court. 8. The learned Senior Counsel submitted that the present suit filed by the Appellants, as also the suit filed in the City Civil Court were clearly barred by limitation. In National Bank v. Surendra Prasad Sinha [1993 (1) Supp. SCC 499] it was held that after the period of limitation has elapsed, the right to property is extinguished and the same is provided by Section 27, Limitation Act, 1963. The plaint in the first and the present suit reveals that the claims are based on the appellant’s alleged title to the said property, which right was extinguished by Section 27 of Limitation Act. 9. Mr.Madon, the learned Senior counsel for the Respondent submitted that the Appellants cannot avail of the benefit of Section 14 Limitation Act, 1963. Mr.Madon contends that the amendment to the plaint, adding paragraph 31(C) was done only as an afterthought to comply with the requirement of Section 14 and not substantiated by leading any oral evidence, even though they were given an opportunity to do so. In Ghisulat Gameshi Lal v. Gumbhimull Pandya [AIR 1938 Cal 377] it was held that just because a person engages a lawyer, it does not, by