NUSLI NEVILLE WADIA versus IVORY PROPERTIES & ORS.
[2019] 15 S.C.R. 795, Supreme Court of India, 2019
Outcome: Reference answered
Segment: Facts
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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 by
Maharashtra Amendment Act, 1977) – Jurisdiction – Preliminary
issue of limitation – Held: Issue of limitation cannot be decided
as preliminary issue – The decision in Kamlakar Shantaram has
been correctly decided and cannot be said to be per incurium as
held in Foreshore Cooperative Housing Society Limited.
Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) – Jurisdiction – Under the
provisions of s.9A and Order XIV Rule 2, it is open to decide
preliminary issues if it is purely a question of law not a mixed
question of law and fact by recording evidence.
Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) – Jurisdiction – When
considering what colour expression “jurisdiction” has in s.9A, it
is clearly in the context of power to entertain, jurisdiction takes
colour from accompanying word ‘entertain’; i.e. the Court should
have jurisdiction to receive a case for consideration or to try it –
In case  there is no jurisdiction, court has no competence to give
the relief, but if it has, it cannot give such relief for the reason
that claim is time-barred by limitation or is barred by the principle
of res judicata or by bar created under any other law for the time
being in
force.
Code of Civil Procedure, 1908: s.9A (as inserted by
Maharashtra Amendment Act, 1977) – Jurisdiction – When a case
is barred by res judicata or limitation, it is not that the Court has
no 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 to
property is provided under s.27 of the Limitation Act – When Court
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dismisses a suit on the ground of limitation, right to property is
lost, to hold so the court must have jurisdiction to entertain it –
The Court is enjoined with a duty under s.3 of the Limitation Act
to take 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 be included in the expression “jurisdiction to entertain”
suit used in s.9A – The Court has to receive a case for
consideration and entertain it, to look into the facts constituting
limitation or bar created by any other law to give relief, it has to
decide the question on merits; then it has the power to dismiss the
same on the ground of limitation or such other bar created by any
other law – Thus, the meaning to be given to jurisdiction to
entertain in s.9A is a narrow one as to maintainability, the
competence of the court to receive the suit for adjudication is only
covered under the provisions.
Code of Civil Procedure, 1908: Or.XIV r.2(2)(b) and s.9 –
Preliminary issue – In a case question of limitation can be decided
based on admitted facts, it can be decided as a preliminary issue
under Or.XIV r.2(2)(b) – However, when facts are disputed about
limitation, the determination of the question of limitation also
cannot be made under Or.XIV r.2(2)(b) as a preliminary issue or
any other such issue of law which
requires examination of the
disputed facts – In case of dispute as to facts, is necessary to be
determined to give a finding on a question of law – Such question
cannot be decided as a preliminary issue – Thus, a mixed question
of law and fact cannot be decided as a preliminary issue, either
under s.9A or under Or.XIV r.2 – Before or after its amendment of
CPC concerning both provisions, the position is the same –
Limitation.
Jurisdiction: Meaning of – Held: Jurisdiction is the authority
by which a judicial officer takes cognizance and decides the cases.
It only presupposes the existence of a duly constituted court having
control over subject-matter which comes within classification limits
of the law under which court has been established. It should have
control over the parties litigant, control over the parties’ territory,
it may also relate to pecuniary as well as the nature of the class
of cases.
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Jurisdiction: Existence of jurisdiction and the exercise of
jurisdiction – Distinction between – Held: The jurisdiction to
entertain has different connotation from the jurisdictional error
committed in exercise thereof – The existence of jurisdiction is
reflected by the fact of amenability of the judgment to attack in
the collateral proceedings – If the court has an inherent lack of
jurisdiction, its decision is open to attack as a nullity – While
deciding the issues of the bar created by the law of limitation, res
judicata, the Court must have jurisdiction to decide these issues –
In case jurisdiction is exercised with material irregularity or with
illegality, 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 where
consideration of preliminary issue framed under s.9A is pending
on the date of commencement of the CPC, the said issue shall be
decided and disposed of by the court under s.9A as if the provision
under s.9A has not been deleted, does not change the legal
scenario as to what can be decided as a preliminary issue under
s.9A, CPC, as applicable in Maharashtra – The saving created by
the provision of s.2 where consideration of preliminary issue framed
under s.9A is pending on the date of commencement of the
Amendment Act, 2018, can be decided only if it comes within the
parameters on the interpretation of s.9A – No issue can be decided
only
under the guise of the provision that it has been framed under
s.9A and was pending consideration on the date of commencement
of the Amendment Act, 2018.
Words and Phrases: Expression ‘Jurisdiction to entertain the
suit’ – Meaning of – Explained.
Words and Phrases: Expression ‘entertain’  – Meaning of –
Held:  The word ‘entertain’  means to admit for consideration – It
means 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 the
power to decide correctly. Jurisdiction is the authority of law to
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act officially, in a particular matter in hand. It is the power to
take cognizance and decide the cases. It is the power to decide
rightly or wrongly. It is the power to hear and determine. Same
is the foundation of judicial proceedings. It does not depend
upon the correctness of the decision made. It is the power to
decide justiciable controversy and includes questions of law as
well as facts on merits.  Jurisdiction means power to entertain
a suit, consider merits, and render binding decisions, and
“merits” means the various elements which enter into or qualify
plaintiff’s right to the relief sought. If the law confers a power
to render a judgment or decree, then the court has jurisdiction.
[Para 16] [823-D-F]
1.2  Jurisdiction is generally understood as the authority
to decide, render a judgment, inquire into the facts, to apply the
law, and to pronounce a judgment. When there is the want of
general power to act, the court has no jurisdiction. When the
court has the power to inquire into the facts, apply the law,
render binding judgment, and enforce it, the court has
jurisdiction. Judgment within a jurisdiction has to be immune
from collateral attack on the ground of nullity.  It has co-relation
with the constitutional and statutory power of tribunal or court
to hear and determine. It means the power or capacity
fundamentally 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 jurisdiction
and empowers the courts to try all civil suits unless barred. The
words used in section 9 of the Code of Civil Procedure of 1882
“barred by any enactment for the time being in force” are
substituted in the Code of Civil Procedure of 1908 by “either
expressly or impliedly barred.”  Thus, the word “jurisdiction”
under section 9 correlates with the cognisance, i.e., is not barred
either expressly or impliedly. [Paras 18-20] [824-D-G-H]
Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC
1449 : [1965] SCR 800 ; A.R. Antulay v. R.S. Nayak
and Anr., (1988) 2 SCC 602 : [1988] 1 Suppl.  SCR
1 ; Delhi Special Police Establishment, New Delhi v.
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Lt. Col. S.K Loraiya, (1972) 2 SCC 692 : [1973] 1 SCR
1010 ; Smt. Ujjam Bai v. State of Uttar Pradesh, AIR
1962 SC 1621 : [1963] SCR 778 ; Anowar Hussain
v. Ajay Kumar Mukherjee, AIR 1965 SC 1651 –
referred to.
1.4 The jurisdiction in Section 9A must be considered in
the context it has been used. The word jurisdiction has to be
interpreted in the context which has been used in the various
provisions. The word “jurisdiction” has been used in CPC in
several provisions. Section 9 deals with the jurisdiction to try
all suits by a civil court except those which are barred.  Section
10 prohibits a Court from proceeding with the trial. Section 11
and Explanation VIII are based upon the principle of res judicata.
Order II Rule 3(2) contains a provision concerning the
jurisdiction of the Court as regards the suit. Order VII Rule
11(d) deals with the rejection of the plaint on the ground being
barred by law.  Order XIV Rule 2 distinguishes between
preliminary issues relating to the jurisdiction of the Court or a
bar to the suit created by any law for the time being in force.
There are various other provisions in which the expression has
been used. [Para 27] [828-B-E]
IN RE: “ENTERTAIN THE SUIT”
2.1  When considering the provisions in Section 9A, the
word jurisdiction is qualified with “to entertain the suit,” the
expression used is ‘jurisdiction to entertain the suit.’ The Court
has jurisdiction to entertain 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 the Court has no jurisdiction to
entertain the case.  It is like a suit is cognizable by Revenue
Court, but it is filed in Civil Court, the Court cannot consider it
nor can receive it for trial.  When the separate statutory
mechanism is provided for the consideration of a particular
dispute and jurisdiction of Civil 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 for consideration.  It
can be said that the Court has no jurisdiction to entertain such
a suit. The expression “jurisdiction to entertain” is also used
in Section 14 of the Limitation Act.  The provisions of Section
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14 provide that in case a suit is filed in the wrong court and the
Court 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 for
consideration. When a suit or proceeding is not thrown out in
limine, but the court receives it for consideration for disposal
under the law, it must be regarded as entertaining the suit or
proceeding. It is inconsequential what is the final decision. The
expression ‘entertain’ means to adjudicate upon or to proceed
to consider on merits. [Para 31, 32] [830-F-H]
The Premier Automobiles Ltd. v. Kamlakar Shantaram
Wadke & Ors., AIR 1975 SC 2238 : [1976] 1 SCR
427 – affirmed.
Lakshmiratan Engineering Works Ltd. v. Assistant
Commissioner, 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 1958
MP 91 ; Nakul Chandra Ghose v. Shyamapada Ghose
AIR 1945 Cal 381 – referred to.
IN RE: DIFFERENCE BETWEEN EXISTENCE AND
EXERCISE OF JURISDICTION
3.1 There is a difference between the existence of
jurisdiction and the exercise of jurisdiction. In case jurisdiction
is exercised with material irregularity or with illegality, it would
also constitute jurisdictional error. However, if a court has
jurisdiction to entertain a suit but in
exercise of jurisdiction, a
mistake has been committed, though it would be a jurisdictional
error but not lack of it. It may be a jurisdictional error open for
interference in appellate or revisional jurisdiction. In a case,
jurisdictional facts, as well as adjudicatory facts, may arise. When
jurisdictional facts to entertain are missing, the court/tribunal
cannot act at all. In the case of adjudicatory facts, the court can
proceed with the trial of the case exercising jurisdiction, and the
same implies that the court has the jurisdiction to deal with the
matter, that is called the power to examine on merits.
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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 SCC
595 : [2008] 9 SCR 652 ;  Bhai Jai Kishen Singh v.
Peoples Bank of Northern India (in liquidation)
through Bhagwati Shankar, Official Liquidator, AIR
1944 Lah 136 ; Union of India v. Tarachand Gupta
and Bros., (1971) 1 SCC 486 : [1971] SCR 557 ;
Official Trustee, West Bengal v. Sachindra Nath
Chatterjee, 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, no
doubt the refusal is within the realm of exercise of jurisdiction
by the Court or Tribunal. It cannot be said that the Court has
refused to exercise the jurisdiction to go into the merits by a
wrong decision dismissing the case on the ground of limitation.
An erroneous decision on the question of res judicata or
limitation would not oust the jurisdiction of the Court nor render
the decision a nullity liable to collateral attack. The test of having
no jurisdiction by the Court is that its judgment is amenable to
attack in collateral proceedings. In a case barred by limitation,
Court has jurisdiction to decide the issue. In case it has no
jurisdiction, it cannot decide such an issue on merits at all. [Paras
40-42] [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 Deb
and others, (1999) 4 SCC 396 : [1999] 2 SCR 1189
– relied on.
National Thermal Power Corpn. Ltd. v. Siemens
Atkeingesellschaft, (2007) 4 SCC 451 : [2007] 3 SCR
399 – held inapplicable.
IN RE:  JURISDICTION TO ENTERTAIN UNDER
SECTION 9A, CPC
4.1 The word “jurisdiction” in section 9A is qualified with
expression to ‘entertain’ the suit.  Thus, it is apparent that the
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scope of Section 9A has been narrowed down by the legislature
as compared to 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 being in force.”  Since the expression used in
section 9A as incorporated in Maharashtra, is “jurisdiction to
entertain” that is in a narrower sense and its purport cannot be
taken 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 of
power to entertain, jurisdiction takes colour from accompanying
word ‘entertain’; i.e. the Court should have jurisdiction to
receive a case for consideration or to try it.  In case  there is
no jurisdiction, court has no competence to give the relief, but
if it has, it cannot give such relief for the reason that claim is
time-barred by limitation or is barred by the principle of res
judicata or by bar created under any other law for the time being
in force.  When a case is barred by res judicata or limitation, it
is not that the Court has no 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 to property is provided under
Section 27 of the Limitation Act.  When Court dismisses a suit
on the ground of limitation, right to property is lost, to hold so
the court must have jurisdiction to
entertain it.  The Court is
enjoined with a duty under Section 3 of the Limitation Act to take
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 be included in the expression “jurisdiction to entertain” suit
used in Section 9A.  The Court has to receive a case for
consideration and entertain it, to look into the facts constituting
limitation or bar created by any other law to give relief, it has
to decide the question on merits; then it has the power to dismiss
the same on the ground of limitation or such other bar created
by any other law.  Thus, the meaning to be given to jurisdiction
to entertain in Section 9A is a narrow one as to maintainability,
the competence of the court to receive the suit for adjudication
is only covered under the provisions. The word entertain cannot
be said to be the inability to grant relief on merits, but same
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relates to receiving a suit to initiate the very process for granting
relief. [Para 45] [841-B-G]
4.3 As per Order XIV Rule 1, issues arise when a material
proposition of fact or law is affirmed by the one party and denied
by the other.  The issues are framed on the material proposition,
denied by another party.  There are issues of facts and issues
of law.  In case specific facts are admitted, and if the question of
law arises which is dependent upon the outcome of admitted
facts, it is open to the Court to pronounce the judgment based
on admitted facts and the preliminary question of law under the
provisions of Order XIV Rule 2.  In Order XIV Rule 2(1), the
Court may decide the case on a preliminary issue.  It has to
pronounce the judgment on all issues.  Order XIV Rule 2(2)
makes a departure and Court may decide the question of law as
to jurisdiction of the Court or a bar created to the suit by any
law for the time being in force, such as under the Limitation Act.
In a case question of limitation can be decided based on admitted
facts, it can be decided as a preliminary issue under Order XIV
Rule 2(2)(b). Once facts are disputed about limitation, the
determination of the question of limitation also cannot be made
under Order XIV Rule 2(2) as a preliminary issue or any other
such issue of law which requires examination of the disputed
facts.  In case of dispute as to facts, is necessary to be
determined to give a finding on a question of law.  Such
question
cannot be decided as a preliminary issue.  In a case, the
question of jurisdiction also depends upon the proof of facts
which are disputed.  It cannot be decided as a preliminary issue
if the facts are disputed and the question of law is dependent
upon the outcome of the investigation of facts, such question of
law cannot be decided as a preliminary issue, is settled
proposition of law either before the amendment of CPC and post
amendment in the year 1976. [Paras 46, 47] [842-D-H; 843-A]
4.4   What is intended by Section 9A of the Code of Civil
Procedure, 1908 (CPC) is the defect of jurisdiction. It may be
inter alia territorial or concerning the subject matter. The defect
of jurisdiction may be due to provisions of the law. It is only the
maintainability of the suit before the court which is covered
within the purview of Section 9-A CPC as amended in
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Maharashtra. Section 3 of the Limitation Act provides that
subject to the provisions contained in Sections 4 to 24 of the
Limitation Act, every suit instituted, appeal preferred, and the
application made after the prescribed period shall be dismissed,
it nowhere provides that Court has no jurisdiction to deal with
the matter.  Until and unless Court has the jurisdiction, it cannot
proceed to dismiss it on the ground of limitation under Section
3. [Paras 49, 50] [843-C-G]
Raghunath Das v. Gokal Chand, AIR 1958 SC 827 :
[1959] SCR 811 – relied on.
IN RE:  ORDER XIV RULE 2
5. The expressions used in the Order XIV Rule 2 as
incorporated in the CPC by way of Amendment Act, 1976 deals
with the jurisdiction of the Court.  The scope of Section 9A is
different as compared to the provisions of Order XIV Rule 2 and
the scope of Section 9A is limited not as comprehensive as that
of Order XIV Rule 2. However, the concept of Order XIV Rule
2 with respect to what can be treated as preliminary issue will
be applicable under Section 9A only in case question of
“jurisdiction to entertain” arises, i.e., if it can be decided purely
as question of law, at the stage contemplated under Section 9A,
not in case if it is a mixed question of law and fact, no evidence
can 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 Kaur
Anand and others (2018) 3 Mh.L.J.
892 ;
Gunwantbhai Mulchand Shah v. Anton Elis Farel and
others, (2006) 3 SCC 634 : [2006] 2 SCR 886 ; Indian
Bank v. Maharashtra State Cooperative Marketing
Federation Ltd., (1998) 5 SCC 69 : [1998] 3 SCR
187 ; Sneh Lata Goel v. Pushplata and others, (2019)
3 SCC 594 : [2019] 1 SCR 463 ; Hiralal Patni v. Kali
Nath, AIR 1962 SC 199 : [1962] SCR 747 – referred
to.
Abdul Rahman v. Prasony Bai and another, (2003) 1
SCC 488 : [2002] 4 Suppl. SCR 260 – held
inapplicable.
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IN RE: MIXED QUESTION OF LAW AND FACT AND
ORDER VII  RULE 11 CPC
6.1 Question of limitation, in no case, can be said to be a
question of jurisdiction of the Court in the context it has been
used in Section 9A CPC. It cannot be laid down as proposition
of law under Order VII Rule 11(d) that plaint cannot be rejected
as barred by limitation.  It can be said that it is permissible to
do so mainly in a case where the plaint averment itself indicate
the cause of action to be barred by limitation and no further
evidence is required to adjudicate the issue. [Paras 58, 62] [847-
E; 848-F]
Major S.S. Khanna v. Brig. F.J. Dhillon AIR 1964 SC
497 : [1964] SCR 409 ; Narne Rama Murthy v. Ravula
Somasundaram & Ors. (2005) 6 SCC 614 : [2004] 6
Suppl. SCR 1065 ; Satti Paradesi Samadhi and
Pillayar Temple v. M. Sankuntala (Dead) through Legal
Representatives and others, (2015) 5 SCC 674 : [2014]
9 SCR 221 ; Ramdayal Umraomal v. Pannalal
Jagannathji, 1979 M.P.L.J 736 ; Sunni Central Waqf
Board and others v. Gopal Singh Vishrad and others,
AIR 1991 All 89 ; Venkatesh r. Desai v. Smt. Pushpa
Hosmani & Ors., ILR 2018 Kar 5095 ; Prithvi Raj v.
Munnalal, 1957 RLW 323 ; Bhag Singh v. Nek Singh
(1994) SCC OnLine P&H 594 ; State Trading
Corporation of India Ltd. v. Government of the Peoples
Republic of Bangladesh, ILR (1997) Del 229 ; Naresh
Chandra Das v. Gopal Chandra Das, AIR 1991 Cal
237 ; Taj Kerala Hotels & Resorts Ltd. v. Easytec India
Pvt. Ltd., (2013) SCC OnLine Ker 20240
;
Madhabananda Govindasamy v. Manickam & Ors.,
2016-1-L.W. 49 ; Angsley Investment Ltd. v. Turus
Shipping Service & Ors., AIR 2007 Guj 23 ;
Chandrama Singh v. (D) through LRs v. Ram Kishore
Agrawal & Ors., (2016) SCC OnLine Chh 1740 ;
Naresh Chandra Gautam v. Chhote Khan, (2003) SCC
OnLine Utt 12 ; Ramagya Tiwari v. Shib Kumar Sah
& Ors., (2018) SCC OnLine Jah 578 ; Lalchand Sha
& Ors. v. Kalabati Devi & Ors., (2008) 2 Gau LR
561 ; J Mnthamma & Anr. v. Bayya Iiglamma & Ors.;
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Vaish Aggarwal Panchayat v. Inder Kumar and others,
AIR 2015 SC 3357 : [2015] SCR 637 ; Hareendran
and others v. Sukumaran and others, (2018) 14 SCC
187 – referred to.
6.2 In case averments in the plaint indicate that suit is
barred, it is liable to be rejected before the stage of Section 9A
of CPC comes.  Thus, the stage at which Order VII Rule 11(d)
has to be applied, is at the threshold and the scope of Section
9A is somewhat limited and different. Though the scope of
rejection of plaint under Order VII Rule 11(d) is broad enough
which 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 the
jurisdiction of the Court to entertain a suit. [Para 65] [852-D-E]
Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and
Ors., (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. Srinivasa
Murthy & others v. Mariyamma (Dead) by proposed
LRs. & Ors., (2005) 5 SCC 548 : [2005] 1 Suppl. SCR
411 ; Suman Devi v. Manisha Devi & others, (2018) 9
SCC 808 : [2018] 10 SCR 26 – held inapplicable.
IN RE:  DECISION IN FORESHORE COOPERATIVE
HOUSING SOCIETY LIMITED
7.1 In Foreshore Cooperative Housing Society Limited,
decision of the court in Pandurang Dhondi Chougule and other
decisions have been relied on. In Pandurang Dhondi Chougule,
the
Constitution Bench has observed that plea of limitation is a
plea of law, which concerns the jurisdiction of the court which
tries the proceedings. The Constitution Bench has not laid down
that question of limitation, and res judicata have to be tried as a
preliminary issue.  It cannot be disputed that the question of res
judicata and limitation pertains to the question of jurisdiction of
the Court to pass a decree in the proceeding. In case proceeding
is barred by limitation, the Court has no jurisdiction to pass a
decree. The court had inherent jurisdiction and in the course of
proceeding how the jurisdiction is to be exercised and what
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amounts to a case of a wrong decision in the course of the
exercise of jurisdiction is another colour in which jurisdictional
error has been gauged in Pandurang Dhondi Chougule. It was
not a case of want of the existence of jurisdiction to decide the
issue. The question of limitation and res judicata, are to be
decided within the realm of exercise of jurisdiction following the
law.  The finding on these pleas may oust the jurisdiction of the
Court to pass a decree as other laws bar it.  Thus, these pleas
can be termed as concerning with the question of jurisdiction,
in the exercise thereof they have to be decided.  The decision
renders no help to espousing the cause of the respondents. In
Foreshore Cooperative Housing Society Limited, the court has
wrongly applied a different colour of jurisdiction used under
section 115 CPC which was dealt with in Pandurang Dhondi
Chougule case. It is a mismatch and does not merge with the
context 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 
Legal
Representatives and others, (2015) 6 SCC 412 : [2015]
5 SCR 1075 ; Foreshore Cooperative Housing Society
Limited 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
Neville Wadia and others, (2012) SCC OnLine
Bom 1994 ; Naresh Lachnmandas Aswani v. Haridas
Aswani 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 Vishnu
Javalkar and Ors., (2015) 7 SCC 321 – affirmed
Meher Singh v. Deepak Sawhney, (1998) 3 MLJ
940 ; Sudesh v. Abdul Aziz, (2001) 1 Mh.L.J. 324 –
overruled.
Smithkline Beecham Consumer Consumer Healthcare
v. Hindustan Liver Limited, 2002 SCC OnLine Bom
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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 SC
1449 : [1965] SCR  800 ; A.R. Antulay v. R.S. Nayak
and Anr., (1988) 2 SCC 602 : [1988] 1 Suppl.  SCR
1 ; Delhi Special Police Establishment, New Delhi v.
Lt. Col. S.K Loraiya, (1972) 2 SCC 692 : [1973] 1
SCR 1010 ; Smt. Ujjam Bai v. State of Uttar Pradesh,
AIR 1962 SC 1621 : [1963] SCR 778 ; Anowar
Hussain v. Ajay Kumar Mukherjee, AIR 1965 SC
1651 ; M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427 :
[1973] 1 SCR  697 ; Hari Prasad Mulshankar Trivedi
v. V.B. Raju and Ors., (1974) 3 SCC 415:[1974] 1
SCR  548 ; Ittyavira Mathai v. Varkey Varkey and Anr.,
AIR 1964 SC 907 : [ 1964] SCR  495 ; Maqbul Ahmad
and others v. Onkar Pratap Narain, AIR 1935 PC
85 ; Manick Chandra Nandy v. Debdas Nandy and
others, (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. Lajpat
Rai Sharma and others, (2008) 12 SCC 577 : [2008]
6 SCR 653 ; Indian Farmers Fertilizer Cooperative
Limited v. Bhadra Products, (2018) 2 SCC 534 :
[2018] 1 SCR 848 ; Pandurang Dhondi Chougule and
Ors. v. Maruti Hari Jadhav and Ors, AIR 1966 SC
153 : [1966] SCR 102 – referred to.
IN RE:  LITERAL INTERPRETATION
8. When literal meaning in Section 9A, CPC is taken, it is
apparent that 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 a suit for consideration to
initiate a trial. When tested on the anvil of hardship caused by
the exclusion of question of limitation from the jurisdiction to
entertain, being tested in the right spirit, it rebounds upon to
negate the submission. [Para 76] [863-F]
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809
Rohitash Kumar and others v. Om Prakash Sharma and
others, (2013) 11 SCC 451 : [2012] 13 SCR 47 ;
Nalinakhya Bysack v. Shyam Sundar Haldar, AIR 1953
SC 148 : [1953] SCR 533 – distinguished.
Case Law Reference
[2015] 5 SCR 1075
Not correct law
Para 1
(2015) 7 SCC 321
affirmed
Para 1
[1966] SCR 102
referred to
Para 1
[1965] SCR 800
referred to
Para 21
[1988] 1 Suppl. SCR 1
referred to
Para 22
[1973] 1 SCR 1010
referred to
Para 23
[1963] SCR 778
referred to
Para 24
AIR 1965 SC 1651
referred to
Para 25
[1973] 1 SCR 697
referred to
Para 26
[1968] SCR 505
referred to
Para 31
(1971) 3 SCC 124
referred to
Para 31
[2008] 9 SCR 652
referred to
Para 34
[1976] 1 SCR 427
affirmed
Para 35
[1974] 1 SCR 548
held inapplicable
Para 37
[1971] SCR 557
referred to
Para 38
[1969] SCR 92
referred to
Para 39
[2007] 3 SCR 399
held inapplicable
Para 40
[1999] 2 SCR 1189
relied on
Para 42
[1959] SCR 811
relied on
Para 49
[2002] 4 Suppl. SCR 260
held inapplicable
Para 55
[2006] 2 SCR 886
referred to
Para 56
[1998] 3 SCR 187
referred to
Para 56
[2019] 1 SCR 463
referred to
Para 56
[1962] SCR  747
referred to
Para 56
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[1964] SCR 409
referred to
Para 57
[2004] 6 Suppl. SCR 1065
referred to
Para 58
[2014] 9 SCR 221
referred to
Para 59
[2015] SCR 637
referred to
Para 61
(2018) 14 SCC 187
referred to
Para 63
[2006] 3 Suppl. SCR 414
held inapplicable
Para 64
AIR 2019 SC 1430
held inapplicable
Para 65
[2005] 1 Suppl. SCR 411
held inapplicable
Para 65
[2018] 10 SCR 26
held inapplicable
Para 65
[1964] SCR 495
referred to
Para 68
AIR 1935 PC 85
referred to
Para 68
(1986) 1 SCC 512
referred to
Para 69
[2003] 5 Suppl. SCR 751
referred to
Para 70
[2008] 6 SCR 653
referred to
Para 71
[2018] 1 SCR 848
referred to
Para 72
[2012] 13 SCR 47
distinguished
Para 76
[1953] SCR 533
distinguished
Para 76
CIVIL APPELLATE/INHERENT JURISDICTION : Special
Leave Petition (Civil) Nos. 31982-31983 of 2013.
From the Judgment and Order dated 19.09.2013 and 20.09.2013
of the High Court of Judicature at Bombay in AN No. 414 of 2008
and in SN No. 414 of 2008 respectively.
With
Review Petition (Civil) No. 2856 of 2015 in Civil Appeal No. 3396
of 2015.
F. S. Nariman, Dr. A. M. Singhvi, Rakesh Dwivedi, Mukul
Rohatgi, 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,
Ms. Hemlata Jain, Ankur Saigal, Nooruddin Dhilla, Anirudh Hariani,
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Ms. Sukhda Wagle, Ms. Parul Shukla, E. C. Agrawala, Ms. Purnima
Bhat, Ms. Garima Prashad, Kaushik Poddar, Abhimanyu Bhandari,
Avishkar Singhvi, Ms. Roohina Dua, Cheitanya Madan, Ms. Nattasha
Garg, Ms. Gauri Rishi, Ms. Ranjeeta Rohatgi, Arav Pandit, Naveen
Kumar, 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 this
Court vide order dated 17.8.2015, doubting the correctness of the
decision of this Court in Foreshore Cooperative Housing Society
Limited v. Praveen D. Desai (Dead) through Legal Representatives
and others, (2015) 6 SCC 412 with respect to the interpretation
provisions contained in Section 9A of the Code of Civil Procedure, 1908
(for short, ‘the CPC’) as inserted by the Maharashtra Amendment Act,
1977. It has been opined that the word “jurisdiction” under Section 9A
is wide enough to include the issue of limitation as the expression has
been used in the broader sense and is not restricted to conventional
definition under pecuniary or territorial jurisdiction, the decision in
Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors.,
(2015) 7 SCC 321, taking contrary view, is per incuriam in view of
the larger Bench decision in Pandurang Dhondi Chougule and Ors.
v. Maruti Hari Jadhav and Ors, AIR 1966 SC 153 as well as other
larger Bench decisions.
2. In Kamalakar Eknath Salunkhe (supra) this Court has opined
that issue of limitation cannot be
decided as a preliminary issue of
jurisdiction under Sec 9, Reference has been made because of
divergence in views.
3. The question arises for consideration as to the interpretation
of expression ‘jurisdiction of the Court to entertain such suit’ used in
Section 9A of CPC. Section 9A had been introduced initially by the
Code of Civil Procedure (Maharashtra Amendment) Act, 1970 and after
that reintroduced with slightly modified terms by the Code of Civil
Procedure (Maharashtra Amendment) Act, 1977. After its repeal it had
been re-enacted with effect from 19.12.1977. It was felt necessary to
reintroduce it after the extensive amendment made by the Parliament
in CPC by way of Amendment Act, 1976 with effect from 1.2.1977.
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4. Before we dilate further on the issue, we consider it
appropriate to refer to the Statement of Objects and Reasons under
the original enactment at the time of introduction of Section 9A in the
year 1970. Following is the Statement of Objects and Reasons as
mentioned in the Gazette dated 15.12.1969:
“STATEMENT OF OBJECTS AND REASONS
The effect of the judgment of the High Court in Institute Indo-
Portuguese vs. Borges, (1958) 60 Bom. L.R. 660 is that the
Bombay City Civil Court to grant interim relief cannot or need
not go into the question of jurisdiction.  Sometimes declaratory
suits are filed in the City Court without a valid notice under
section 80 of the Code of Civil Procedure, 1908.  Relying upon
another judgment of the High Court recorded on the 7th
September 1961 in Appeal No.191 of 1960, it has been the
practice of the City Court to adjourn a notice of motion for an
injunction in a suit filed without such valid notice, which gives
time to the plaintiff to give the notice.  After expiry of the period
of notice, the plaintiff is allowed to withdraw the suit with liberty
to file a fresh one.  In the intervening period, the Court grants
an ad interim injunction and continues the same.  This practice
of granting injunctions, without going into the question of
jurisdiction even though raised, has led to grave abuse.  It is
therefore proposed to provide that if a question of jurisdiction is
raised at the hearing
of any application for granting or setting
aside an order granting interim relief, the Court shall determine
that question first.
S.K. WANKHEDE
Nagpur, dated the 6th December 1969
Minister for Law.
S.H. BELAVADI
Nagpur dated the 15th December 1969
 Secretary
Maharashtra Legislative Assembly.”
The reason for the introduction of the provisions of Section 9A
in Maharashtra was that the suits used to be filed without notice under
Section 80 of CPC. It related to bar on the institution of the suit without
notice. After expiry of the period of notice, the plaintiff used to be
allowed to withdraw the suit with liberty to file fresh one in the
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intervening period. The Court used to grant ad interim injunction and
continue the same.  The practice of granting an injunction without going
into the question of jurisdiction has led to grave abuse of the provisions
of law.  Thus, it was proposed that in case question of jurisdiction is
raised at the hearing of any applications for granting or setting aside
an order granting interim relief, the Court shall determine that question
first.  The provisions of Section 9A, as initially introduced in 1970, are
extracted hereunder:
“9A.(1) If, at the hearing of any application for granting or setting
aside an order granting any interim relief, whether by way of
injunction, appointment of a receiver or otherwise, made in any
suit, an objection to the jurisdiction of the Court to entertain such
suit is taken by any of the parties to the suit, the Court shall
proceed to determine at the hearing of such application the issue
as to the jurisdiction as a preliminary issue before granting or
setting aside the order granting the interim relief.  Any such
application shall be heard and disposed of by the Court as
expeditiously as possible and shall not, in any case, be adjourned
to the hearing of the suit.
(2) Notwithstanding anything contained in sub-section (1), at the
hearing of any such application, the Court may grant such interim
relief as it may consider necessary pending determination by it
of the preliminary issue as to the jurisdiction.”
5. The Statement of
Objects and Reasons for re-introduction of
Section 9A in the year 1977 is the same.  It has been re-enacted in a
slightly revised form.  The Statement of Objects and Reasons of the
re-enacted provisions in the year 1977 is extracted hereunder:
“STATEMENT OF OBJECTS AND REASONS
The Code of Civil Procedure, 1908 (V of 1908) has been
amended, in its application to the State of Maharashtra, by the
Code 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 of
1965) and by the Code of Civil Procedure (Maharashtra
Amendment) Act, 1970 (Mah. XXV of 1970).  By the first State
Act of 1953, the proviso to section 60(1) is amended to exempt
the amounts payable under the policies issued in pursuance of
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the Rules for the Hyderabad State Life Insurance and Provident
Fund from attachment in execution of a decree.  By the second
State Act of 1970, a new section 9-A has been inserted for
providing that whereby an application,  in which interim relief is
sought or is sought to be set aside in any suit and objection to
jurisdiction is taken, such issue should be decided by the Court
as a preliminary issue at the hearing of the application.  The
Code also stands amended in its application to the Bombay area
of this State by the Code of Civil Procedure (Bombay
Amendment) Act, 1948 (Bom. LX of 1948) and in its application
to the Hyderabad area of this State by the Code of Civil
Procedure (Hyderabad Second Amendment) Act, 1953 (Hyd.
XVIII of 1953). The first State Act of 1948 amends the proviso
to section 60(1) to exempt from attachment, stipends, and
gratuities allowed to pensioners of a local authority. The second
State Act of 1953 also amends the proviso to section 60(1) to
exempt from attachment, the pension granted or continued by
the Central Government, the Government of the former State of
Hyderabad or any other State Government on account of past
services or present infirmities or as a compassionate allowance.
2. The Code has been extensively amended by the Code of Civil
Procedure (Amendment) Act, 1976 (CIV of 1976) enacted by
Parliament.  Section 97 of this Amendment Act provides interalia
that any amendments made in
the Code by a State Legislature
before the commencement of that Act shall except in so far as
they are consistent with the Code as amended by the Amendment
Act, stand repealed. Unless there is an authoritative judicial
pronouncement, it is difficult to say which of the State
Amendments are inconsistent with the Code as amended by the
Central Amendment Act of 1976 and which consequently stand
repealed.  All the amendments made in the Code by the State
Acts, except the amendment made in the proviso to section 60(1)
by the State Act of 1948, are useful and are required to be
continued. The amendment made by the State Act of 1948 is no
more required because it is now covered by the amendment
made in clause (g) of the said proviso by the Central Amendment
Act of 1976.  But to leave no room for any doubt whether the
remaining State amendments continue to be in force or stand
repealed, it is proposed that the old amendments should be
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repealed formally and in their places similar amendments may
be re-enacted, with the assent of the President under article
254(2) of the Constitution, so that they may continue to prevail
and be available in this State as before.  The Bill is intended to
achieve these objects.
3. The following notes on clauses explain the purposes of these
clauses:-
Preamble.- It gives the background and main reasons for the
proposed legislation.
Clauses 2 and 3.- Clause 2 formally repeals the State Act of
1970 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 is
included in the proviso to section 60(1) by the Central Amendment
Act of 1976, it is proposed to repeal this Act and the amendment
made by it.
Clauses 5 and 6.- Clause 5 formally repeals the two-State Acts
of 1953 by which the proviso to section 60(1) was amended to
give some additional exemptions from attachment.  Clause 6
brings back these amendments with the necessary drafting
changes.
HUSSAIN M. DALWAI,
Dated the 5th of
Minister for Law and Judiciary.”
October 1977.
The provisions of Section 9A as re-enacted in the year 1977
contained a non-obstante clause concerning provisions of CPC or any
other law for the time being in force.  Section 9A as re-introduced in
the year 1977 is extracted hereunder:
“9A.  Whereof the hearing of application relating to interim
relief in a suit,
objection to jurisdiction is taken, such issue
to be decided by the Court as a preliminary issue.-(1)
Notwithstanding anything contained in this Code or any other law
for the time being in force, if, at the hearing of any application
for granting or setting aside an order granting any interim relief,
whether by way of stay, injunction, appointment of a receiver or
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otherwise, made in any suit, an objection to the Jurisdiction of
the Court to entertain such a suit is taken by any of the parties
to the suit, the Court shall proceed to determine at the hearing
of such application the issue as to the jurisdiction as a preliminary
issue before granting or setting aside the order granting the
interim relief.  Any such application shall be heard and disposed
of by the Court as expeditiously as possible and shall not in any
case be adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in sub-section (1), at the
hearing of any such application, the Court may grant such interim
relief as it may consider necessary, pending determination by it
of the preliminary issue as to the jurisdiction.”
The provisions of Section 9A enable Court, dealing with the
applications for granting or setting aside interim injunction or for
appointment of a receiver or otherwise, to deal with the objection as to
“jurisdiction of the Court to entertain such suit”, as preliminary issue
and it shall not adjourn the matter to the hearing of the suit.  Pending
determination of the preliminary issue as to jurisdiction, the Court is
competent as per section 9A(2) to grant interim relief as it may consider
necessary.
6. The State of Maharashtra on 27.06.2018 by the promulgation
of “Code of Civil Procedure (Maharashtra Amendment) Ordinance,
2018” has deleted Section 9-A of the Code (in its
application to the
State of Maharashtra). Section 3 of the Ordinance provided as under:
“3. Notwithstanding the deletion of section 9A of the principal
Act, -
“(1) Where consideration of a preliminary issue framed under
section 9A is pending on the date of commencement of the Code
of Civil Procedure (Maharashtra Amendment) Ordinance, 2018
(hereinafter, in this section, referred to as “the Amendment
Ordinance”), the said issue shall be deemed to be an issue framed
under Order XIV of the principal Act and shall be decided by
the Court, as it deems fit, along with all other issues, at the time
of final disposal of the suit itself…”
It was provided that preliminary issue framed under section 9A
shall be treated as an issue under Order XIV of CPC and be decided
by the Court with other issues as it may deem fit.  The above Ordinance
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was replaced by the Code of Civil Procedure (Maharashtra
Amendment) Act, 2018 (Maharashtra Act No.LXI of 2018) (the 1st
Amendment Act) on 29.10.2018.
7. On 15.12.2018, the State of Maharashtra enacted the “Code
of Civil Procedure (Maharashtra Amendment) (Amendment) Act, 2018”
(the 2nd Amendment Act).  Section 2 of Act reads as follows:
“2. In section 3 of the Code of Civil Procedure (Maharashtra
Amendment) Act, 2018, for clause (1), the following clause shall
be substituted and shall be deemed to have been substituted with
effect from the 27th June, 2018, being the date of commencement
of the said Act, namely :-
“(1) where consideration of a preliminary issue framed under
section 9A is pending on the date of commencement of the Code
of 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 under
Section 9A, as if the said section 9A has not been deleted.”
It is provided that if the court has ordered to decide an issue as
a preliminary issue before the date of deletion of section 9A, it shall be
decided by the court as a preliminary issue. Thus, it has become
necessary to decide the issue.
8. The provisions contained in Order XIV Rule 2 of CPC also
deals with the framing of issues and the questions which can be tried
as a preliminary issue before the amendment made in the year 1977 in
CPC 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 may
be disposed of on the issues of law only, it shall try those issues
first, and for that purpose may, if it thinks fit, postpone the
settlement of the issues of fact until after the issues of law have
been determined.”
(emphasis supplied)
It is apparent from the pre-amended provisions of Order XIV
Rule 2 that only a question of law could have been tried as a preliminary
issue, 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 on
the 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 preliminary
issue, the Court shall, subject to the provisions of sub-rule (2),
pronounce judgment on all issues.
(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 may
be disposed of on an issue of law only, it may try that issue first
if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being
in force, and for that purpose may, if it thinks fit,
postpone the settlement of the other issues until after
that issue has been determined, and may deal with the
suit in accordance with the decision on that issue.”
A significant departure has been made in the amended provisions
contained in Order XIV Rule 2. Now it mandates the Court to
pronounce judgment on all issues notwithstanding that a case may
be disposed of on a preliminary issue. The intendment is to avoid
remand in the appealable case for deciding the other issues. In
case the necessity arises, Order XIV Rule 2(2) enables the Court
to decide the issue of law as a preliminary issue in case the same
relates to (1) the jurisdiction of the Court or (2) a bar to the suit
created by any law for the time being in
force. After the
amendment made in CPC in the year 1977, it contains two-fold
provision, the question of jurisdiction to entertain the suit has been
separated 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.”
10. In Kamalakar Eknath Salunkhe (supra), as to the
interpretation of Section 9A, it has been opined that word jurisdiction
in Section 9A is used in a narrow sense as to maintainability, only on
the question of inherent jurisdiction and does not contemplate issues of
limitation. The Court has observed:
“16. The expression “jurisdiction” in Section 9-A is used in a
narrow sense, that is, the court’s authority to entertain the suit
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at the threshold. The limits of this authority are imposed by a
statute, charter, or commission. If no restriction is imposed, the
jurisdiction 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 territorial
jurisdiction, pecuniary jurisdiction, and jurisdiction over the subject-
matter is fundamental. Undoubtedly, the jurisdiction of a court
may get restricted by a variety of circumstances expressly
mentioned in a statute, charter, or commission. The inherent
jurisdiction of a court depends upon the pecuniary and territorial
limits laid down by law and subject-matter of the suit. While the
suit might be barred due to non-compliance with specific
provisions of law, it does not follow that the non-compliance with
the said provisions is a defect which takes away the inherent
jurisdiction of the court to try a suit or pass a decree. The law
of limitation operates on the bar on a party to agitate a case
before a court in a suit, or other proceedings in which the court
has inherent jurisdiction to entertain but by operation of the law
of limitation, it would not warrant adjudication.
20. A perusal of the Statement of Objects and Reasons of the
Amendment Act would clarify that Section 9-A talks of
maintainability only on the question of inherent jurisdiction and
does not contemplate issues of limitation. Section 9-A has been
inserted in
the Code to prevent the abuse of court process where
a plaintiff drags a defendant to the trial of the suit on merits when
the jurisdiction of the court itself is doubtful.
21. In the instant case, the preliminary issue framed by the trial
court is about the question of limitation. Such issue would not be
an issue on the jurisdiction of the court and, therefore, in our
considered opinion, the trial court was not justified in framing the
issue of limitation as a preliminary issue by invoking its power
under Section 9-A of the Code. The High Court has erred in not
considering the statutory ambit of Section 9-A while approving
the preliminary issue framed by the trial court and thus, rejecting
the writ petition filed by the appellant.”
11. Where in the recent decision of Foreshore Cooperative
Housing Society Limited (supra), it has been held that decision in
Kamalakar Eknath Salunkhe (supra) is contrary to the law.  The
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word jurisdiction in Section 9A is used in a broader sense.  It has also
been held that Section 9A is mandatory and a complete departure from
the provisions of Order XIV Rule 2.  The question of limitation is
synonym with jurisdiction, and if raised, the Court has to try it as a
preliminary issue under Section 9A as applicable to the State of
Maharashtra.  This Court in Foreshore Cooperative Housing Society
Limited (supra) has observed:
“56. With great respect, we are of the view that the decision
rendered by the Division Bench in Kamalakar Eknath Salunkhe
v. Baburav Vishnu Javalkar, (2015) 7 SCC 321 is contrary to
the law settled by the Constitution Bench and three-Judge
Benches of this Court, in Pandurang Dhondi Chougule v.
Maruti Hari Jadhav (five-judge Bench), AIR 1966 SC 153
followed by other Division Benches in Manick Chandra Nandy
v. Debdas Nandy, (1986) 1 SCC 512, NTPC Ltd. v. Siemens
Aktiengesellschaft, (2007) 4 SCC 451, Official Trustee v.
Sachindra Nath Chatterjee, AIR 1969 SC 823, ITW Signode
India Ltd. v. CCE, (2004) 3 SCC 48 and Kamlesh Babu v.
Lajpat Rai Sharma, (2008) 12 SCC 577. The Constitution Bench
decision and other decisions given by the larger Bench are binding
on us. It appears that those decisions have not been brought to
the notice of the Division Bench taking a contrary view.
61. Mr Nariman, learned Senior Counsel appearing for the
appellant put heavy reliance on the decision in Ramesh B.
Desai
v. Bipin Vadilal Mehta, (2006) 5 SCC 638, for the proposition
that a plea of limitation cannot be decided as an abstract principle
of law divorced from facts as in every case the starting point of
limitation has to be ascertained which is entirely a question of
fact. A plea of limitation is a mixed question of law and fact. In
our considered opinion, in the decision as mentioned earlier, this
Court was considering the provision of Order 14 Rule 2 CPC.
While interpreting the provision of Order 14 Rule 2 this Court
was of the view that the issue on limitation, being a mixed question
of law and fact is to be decided along with other issues as
contemplated under Order 14 Rule 2 CPC. As discussed above,
Section 9-A of the Maharashtra Amendment Act makes a
complete departure from the procedure provided under Order 14
Rule 2 CPC. Section 9-A mandates the court to decide the
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jurisdiction of the court before proceeding with the suit and
granting interim relief by way of injunction.
62. At the cost of repetition, we observe that Section 9-A provides
a self-contained scheme with a nonobstante clause which
mandates the court to follow the provision. It is a complete
departure from the provisions contained in Order 14 Rule 2 CPC.
In other words, the nonobstante clause inserted by the
Maharashtra Amendment Act of 1977 in Section 9-A and the
express mandate of the section, the law intends to decide the
issue relating to the jurisdiction of the court as a preliminary issue
notwithstanding the provision contained in Order 14 Rule 2 CPC.
However, it is made clear that in other cases where the suits
are governed by the provisions of Order 14 Rule 2 CPC, it is
the discretion of the court to decide the issue based on the law
as a preliminary issue.”
It has also been observed that where the suits are governed by
the provisions of Order XIV Rule 2, it is the discretion of the Court to
decide the issue based on the law as a preliminary issue.
SUBMISSIONS
12. It has been submitted by Shri F.S. Nariman, learned senior
counsel appearing on behalf of the petitioner that decision in Foreshore
Cooperative Housing Society Limited (supra) cannot be said to be
laying down the law correctly. The CPC confers no jurisdiction upon
the Court to try a suit on a mixed question of law and facts as a
preliminary issue.  It is further submitted that the word
jurisdiction has
been used in a narrow sense and Section 9-A does not cover the
question of a suit being barred by any other provision of law. The
decision in Meher Singh v. Deepak Sawhney, 1998 (3) MLJ 940 and
Smithkline Beecham Consumer Consumer Healthcare v. Hindustan
Liver Limited, 2002 SCC OnLine Bom 1337 of the Bombay High Court
are directly in contravention to the law settled by this Court. The plea
of limitation is a mixed question of law and facts and cannot be decided
as an abstract principle divorced from the facts.  The starting point of
limitation has to be ascertained, which is entirely a question of facts in
each case.  In Pandurang Dhondi Chougule (supra), this Court was
concerned with the interpretation of the scope of Section 115 of the
Code.  Because of the provisions of Section 115 when interference can
be made in a revision, it has been observed that limitation concerns
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jurisdiction. The decision in Kamalakar Eknath Salunkhe (supra)
cannot be said to be per incuriam, thus, it was not open to the Division
Bench to take a different view in the Foreshore Cooperative Housing
Society Limited (supra) when the Maharashtra legislature consciously
chose to re-enact Section 9A, it has used the expression jurisdiction
and provision as to the suit was barred by any other law for the time
being in force has not been added which included the law of limitation
also.  Given the amended Order XIV Rule 2, the preliminary issue can
only be a pure question of law.
13. Shri Rakesh Dwivedi, Shri Mukul Rohatgi, Dr. Abhishek
Manu Singhvi, and Shri Gopal Jain, learned senior counsel appearing
on behalf of respondents submitted that Order XIV Rule 2, CPC has
no relevance for construing the expression an objection to the
jurisdiction of the Court to entertain such suit. The provision enacted
in 1970 and re-enacted in the year 1977 is the same. The object of the
re-introduction was to maintain and continue what was enacted before
the CPC Amendment Act of 1976. The question of limitation and res
judicata is the one which can be decided as a preliminary issue under
Section 9A of CPC. It is submitted that under Order XIII Rule 1, parties
are required to produce the documents in original on or before the
settlement of the issues. Under Order XII, parties can give notice for
admitting the documents. Under Order XII
Rule 6, even a judgment
can be given on admitted facts. These are the stages before framing
the issue under Order XIV.
14. Consequently, under Order XIV Rule 2(2), the Court while
trying issues would be entitled to look into the admitted facts in any
case.  Under Order XIV Rule 4, the Court can examine a witness and
documents before framing issues.  Therefore, there is no good reason
to prevent the Court from deciding issues of limitation based on
documents produced, especially if they are admitted documents.
15. It is further submitted on behalf of respondents that the
expression jurisdiction used in Section 9A need not be qualified by the
word inherent, that would amount to re-writing the Statute and would
be against the contextual meaning to be given to Section 9A. The object
for introducing the provision was not limited to objections about inherent
jurisdiction, but to cover bar created by the statute and Section 80 is
an illustration. Thus, the expression ‘barred under any law for the time
being in force’ used in Order XIV Rule 2(2)(b) is covered by Section
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9A.  Concerning expression used in Order XIV Rule 2(2), the Court
may decide the issue of law as a preliminary issue that has not been
used in Section 9A.  Thus, the provision deploys a broader spectrum.
It is further submitted that the speedy conclusion of the trial is vital if
a case can be decided on the point of jurisdiction as also of limitation,
then there is no rationale for keeping the case pending.  Thus, Section
9A buttress the idea of speedy justice.  As President assent has been
received for the introduction of Section 9A, the same will have an
overriding effect on Order XIV Rule 2.  The provision cannot be said
to be irrational or unreasonable in any manner.  In case plaint indicates
that it is barred by limitation, whether the fact can be seen and what
can be tried as a preliminary issue would depend on the nature of the
provision of the statute and the public policy behind it.  Judgment in
Foreshore Cooperative Housing Society Limited (supra) has laid
down the law correctly.
IN RE: MEANING OF WORD JURISDICTION
16. Jurisdiction is the power to decide and not merely the power
to 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 power
to decide rightly or wrongly. It is the power to hear and determine. Same
is the foundation of judicial proceedings. It does not depend upon the
correctness of the decision made. It is the power to decide justiciable
controversy and includes questions of law as well as facts on merits.
Jurisdiction is the right to hear and determine. It does not depend upon
whether a decision is right or wrong. Jurisdiction means power to
entertain a suit, consider merits, and render binding decisions, and
“merits” means the various elements which enter into or qualify
plaintiff’s right to the relief sought. If the law confers a power to render
a judgment or decree, then the court has jurisdiction. The court must
have control over the subject matter, which comes within classification
limits 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 of
parties as between each other but to the power of the court. Jurisdiction
relates to a class of cases to which a particular case belongs. Jurisdiction
is the authority by which a judicial officer takes cognizance and decides
the cases. It only presupposes the existence of a duly constituted court
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having control over subject-matter which comes within classification
limits of the law under which court has been established. It should have
control over the parties litigant, control over the parties’ territory, it may
also relate to pecuniary as well as the nature of the class of cases.
Jurisdiction is generally understood as the authority to decide, render a
judgment, inquire into the facts, to apply the law, and to pronounce a
judgment. When there is the want of general power to act, the court
has no jurisdiction. When the court has the power to inquire into the
facts, apply the law, render binding judgment, and enforce it, the court
has jurisdiction. Judgment within a jurisdiction has to be immune from
collateral attack on the ground of nullity.  It has co-relation with the
constitutional and statutory power of tribunal or court to hear and
determine. It means the power or capacity fundamentally to entertain,
hear, and determine.
18. Jurisdiction to entertain is distinguished from merits, error in
the exercise of jurisdiction or excess of jurisdiction.
19. Section 9 of the Code of Civil Procedure deals with
jurisdiction 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) have
jurisdiction to try all suits of a civil nature excepting suits of which
their
cognizance is either expressly or impliedly barred.
Explanation I.- A suit in which the right to property or to an
office is contested is a suit of a civil nature, notwithstanding that
such right may depend entirely on the decision of questions as
to religious rites or ceremonies.
Explanation II.- For the purposes of this section, it is immaterial
whether or not any fees are attached to the office referred to in
Explanation I or whether or not such office is attached to a
particular place.”
20. The words used in section 9 of the Code of Civil Procedure
of 1882 “barred by any enactment for the time being in force” are
substituted in the Code of Civil Procedure of 1908 by “either expressly
or impliedly barred.” Thus, the word “jurisdiction” under section 9
correlates with the cognisance, i.e., is not barred either expressly or
impliedly.
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21. In Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC
1449 at 1450, it is observed that the jurisdiction of a court means the
extent of the authority of a court to administer justice prescribed
concerning 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 determine
is verbal cast of many colours.  Jurisdiction is a legal shelter – a power
to bind despite a possible error in the decision.  The Court observed:
“142. The expression “jurisdiction” or the power to determine
is, it is said, a verbal cast of many colours. In the case of
Tribunal, the error of law might become not merely an error in
the jurisdiction but might partake character in error of jurisdiction.
However, otherwise, jurisdiction is a ‘legal shelter’ — a power
to bind despite a possible error in the decision. The existence of
jurisdiction does not depend on the correctness of its exercise.
The authority to decide embodies a privilege to bind despite the
error, a privilege which is inherent in and indispensable to every
judicial function. The characteristic attribute of a judicial act is
that it binds whether it be right or it is wrong. In Malkarjun Bin
Shidramappa v. Narahari Bin Shivappa, (1900) 27 IA 216 the
executing court had, quite wrongly, held that a particular person
represented the estate of the deceased judgment-debtor and put
the property for sale in
execution. The Judicial Committee said:
In so doing the court was exercising its jurisdiction. It made a
sad mistake, it is true, but a court has jurisdiction to decide wrong
as well as right. If it decides wrong, the wronged party can only
take the course prescribed by law for setting matters right; and
if that course is not taken the decision, however wrong, cannot
be disturbed.”
23. In Delhi Special Police Establishment, New Delhi v. Lt.
Col. S.K Loraiya, (1972) 2 SCC 692, the word jurisdiction has been
interpreted in the context of Section 125 of the Army Act to signify
the original jurisdiction to take cognizance of a case. Following is the
observation:
“11. Section 125 of the Army Act provides that when a criminal
court and a Court-Martial have each jurisdiction in respect of
an offence, it shall be in the discretion of the officer commanding
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the army, any corps, division or independent brigade in which the
accused person is serving to decide before which court the
proceedings shall be instituted, and if that officer decides that
they should be instituted before a Court-Martial, he will direct
that the accused person shall be detained in military custody.
Section 122(1) and 125 both find place in Chapter X of the Army
Act. Section 125 supports our view that the Court-Martial alone
has jurisdiction to decide the issue of limitation under Section
122(1). The word “jurisdiction” in Section 125 really signifies the
initial jurisdiction to take cognizance of a case. To put it in other
words, it refers to the stage at which proceedings are instituted
in a court and not to the jurisdiction of the ordinary criminal court
and the Court-Martial to decide the case on merits. It appears
to us that Section 549(1) should be construed in the light of
Section 125 of the Army Act. Both the provisions have in mind
the object of avoiding a collision between the ordinary criminal
court and the Court-Martial. So both of them should receive a
similar construction.”
24. In Smt. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC
1621, the word jurisdiction employed in Section 9, CPC came up for
consideration. The Court held that jurisdiction means the authority to
decide and observed:
“(15) Now, I come to a controversial area. What is the position
with regard to an order made by a
quasi-judicial authority in the
undoubted exercise of its jurisdiction in pursuance of a provision
of law which is admittedly intra vires? It is necessary first to
clarify the concept of jurisdiction. Jurisdiction means authority
to decide. Whenever a judicial or quasi-judicial tribunal is
empowered or required to enquire into a question of law or fact
for the purpose of giving a decision on it, its findings thereon
cannot be impeached collaterally or on an application for certiorari
but are binding until reversed on appeal. Where a quasi-judicial
authority has jurisdiction to decide a matter, it does not lose its
jurisdiction by coming to a wrong conclusion whether it is wrong
in law or in fact. The question, whether a tribunal has jurisdiction
depends not on the truth or falsehood of the facts into which it
has to enquire, or upon the correctness of its findings on these
facts, but upon their nature, and it is determinable “at the
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commencement, not at the conclusion, of the inquiry’. (Rex v.
Bolten [1841] I Q.B. 66. Thus, a tribunal empowered to
determine claims for compensation for loss of office has
jurisdiction to determine all questions of law and fact relating to
the measure of compensation and the tenure of the office, and
it does not exceed its jurisdiction by determining any of those
questions incorrectly, but it has no jurisdiction to entertain a claim
for reinstatement or damages for wrongful dismissal, and it will
exceed its jurisdiction if it makes an order in such terms, for it
has no legal power to give any decision whatsoever on those
matters……
(Halsbury’s Laws of England, 3rd Edn. Vol. 11 page 59).  The
characteristic attribute of judicial act or decision is that it binds,
whether it be right or wrong. An error of law or fact committed
by a judicial or quasi-judicial body cannot, in general, be
impeached otherwise than on appeal unless the erroneous
determination relates to a matter on which the jurisdiction of that
body depends. These principles govern not only the findings of
inferior courts stricto sensu but also the findings of administrative
bodies which are held to be acting in a judicial capacity. Such
bodies are deemed to have been invested with power to err within
the limits of their jurisdiction; and provided that they keep within
those limits, their decisions must be accepted as valid unless set
aside on appeal. Even the doctrine of res judicata has been
applied to such decisions.  (See Livingstone v. Westminister
Corporation [1904] 2 K.B. 109; Re Birkenhead Corporation
(1952) Ch. 359 Re 56 Denton Road Twickenham [1953] Ch. 51
Society of Medical Officers of Health v. Hope [1959] 2 W.L.R.
377. ….”
(emphasis supplied)
25. In Anowar Hussain v. Ajay Kumar Mukherjee, AIR 1965
SC 1651, it was held that expression jurisdiction does not mean the
power to do or order the act impugned, but generally the authority of
the Judicial Officer to act in the matter.
26. In M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427, the Court
recognized 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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3 SCC 415, it was observed that expanse of jurisdiction would take
colour from its context.
27. The jurisdiction in Section 9A must be considered in the
context it has been used. The word jurisdiction has to be interpreted in
the context which has been used in the various provisions. The word
“jurisdiction” has been used in CPC in several provisions. Section 9
deals with the jurisdiction to try all suits by a civil court except those
which are barred.  Section 10 prohibits a Court from proceeding with
the trial.  Section 11 and Explanation VIII are based upon the principle
of res judicata.  Section 21 defines objections to a jurisdiction such as
the place of suing and competence of Court regarding the pecuniary
limits of its jurisdiction.  Section 86 prohibits a suit against a foreign
State in any Court otherwise competent to try the suit except with the
consent of Central Government.  Section 135 refers to the matter
pending for determination having jurisdiction therein.  Order II Rule 3(2)
contains a provision concerning the jurisdiction of the Court as regards
the suit.  Order VII Rule 11(d) deals with the rejection of the plaint on
the ground being barred by law. Order VIII Rule 3-A(4) provides a
defendant to put forth the objection as to the jurisdiction. Order XIV
Rule 2 distinguishes between preliminary issues relating to the jurisdiction
of the Court or a bar to the suit created by any law for the time being
in force. Order XXIII Rule 3-A provides that no suit shall lie to set
aside a compromise decree. There are various other provisions in which
the expression has been used.
IN RE: “ENTERTAIN THE SUIT”
28. When we consider provisions in Section 9A, the word
jurisdiction is qualified with “to entertain the suit,” the expression used
is ‘jurisdiction to entertain the suit.’ The Court has jurisdiction to
entertain 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 the
Court has no jurisdiction to entertain the case. It is like a suit is
cognizable by Revenue Court, but it is filed in Civil Court, the Court
cannot consider it nor can receive it for trial. It is like the jurisdiction
to entertain the criminal appeal when the Court is not having inherent
jurisdiction to consider the case; it can be said that the Court has no
jurisdiction to entertain. When the separate statutory mechanism is
provided for the consideration of a particular dispute and jurisdiction of
Civil Court is barred, and if it is brought before the Civil Court whose
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jurisdiction is barred, it cannot entertain such a suit and receive it for
consideration. It can be said that the Court has no jurisdiction to entertain
such 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 is
cognizable in a consumer forum; a Civil Court cannot entertain it.
29. The expression “jurisdiction to entertain” is also used in
Section 14 of the Limitation Act. The provisions of Section 14 provide
that in case a suit is filed in the wrong court and the Court from the
defects of jurisdiction is unable to entertain it, the period to institute a
suit can be extended.
30. The meaning of the word ‘entertain’ came up for consideration
in Kashiram v. Santokhbai, AIR 1958 MP 91. The word ‘entertain’
means to admit for consideration. It does not mean giving relief. When
the court receives it for consideration and disposal, according to law, it
must be regarded as entertaining the suit or proceedings. The High
Court of Madhya Pradesh has observed as under:
 “5. In our opinion, the contention advanced on behalf of the
appellant must be given effect to. We have no doubt that S.14
of the Limitation Act has no application to the facts of this case,
and the plaintiff is not entitled to the benefit of that section. Before
that section can apply, the prior proceeding must have been
founded upon the same cause of action as that on which the later
suit is founded and
the Court in which the prior proceeding was
prosecuted must have been unable to entertain it for the reasons
specified, namely, defect of jurisdiction or other cause of a like
nature. Now the words ‘which, from defect of jurisdiction, or
other cause of a like nature, is unable to entertain it’ which occur
in S.14(1) of the Limitation Act are very significant.
As pointed out by Mukherjee, J. (as he then was), in AIR 1945
Cal 381 (B), the word ‘entertain’ means to admit for
consideration. It does not mean giving relief, and that when a
suit or proceeding is not thrown out in limine but the Court
receives it for consideration and disposal according to law, it must
be regarded as entertaining the suit or proceeding, no matter
whatever the ultimate decision may be; and that a suit is to be
regarded as not entertained by the Court only if it is thrown out
at its inception and the Court does not decide it on its merits.”
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The learned Judge further observed that S.14 of the Limitation
Act speaks of the inability of the Court to entertain a suit or proceeding
on certain specific grounds, which are of a formal nature and that
inability to entertain a suit means not inability to grant relief to the
plaintiff but inability to give him a trial at all. In our opinion when a suit
is dismissed not because the Court had no jurisdiction to entertain it, or
for any other cause of a like nature, but because it was misconceived
or because the proceeding or the suit was not one recognised by law
as legal in its initiation, then clearly S.14 of the Act is not attracted to
such a suit.
This view is amply supported by the cases cited by the learned
counsel for the appellant and numerous other cases. Now, here, the
plaintiff’s prior suit was dismissed not because of any defect of
jurisdiction or any other ground similar to it, but it was entertained and
dismissed because it was wholly misconceived and the relief of rendition
of accounts could not be granted against the son of a deceased agent.
The suit was dismissed because the proceedings according to the trial
Court 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 the
plaintiff’s suit is governed by Art.89, then it is clearly barred by time
and must be dismissed.”
The High Court of M.P. has relied upon the decision in
Nakul
Chandra Ghose v. Shyamapada Ghose, AIR 1945 Cal 381.
31. The expression ‘entertain’ means to admit a thing for
consideration. When a suit or proceeding is not thrown out in limine,
but the court receives it for consideration for disposal under the law, it
must be regarded as entertaining the suit or proceeding. It is
inconsequential what is the final decision. The word ‘entertain’ has been
held to mean to admit for consideration, as observed by this Court in
Lakshmiratan 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 as
observed 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 to
mean ‘adjudicate upon’ or ‘proceed to consider on merits.’ It has been
observed in Hindusthan Commercial Bank Ltd. v. Punnu Sahu
(Dead) through Legal Representatives, 1971 (3) SCC 124 as under:
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“4. Before the High Court it was contended on behalf of the
appellant, and that contention was repeated in this Court, that
Clause (b) of the proviso did not govern the present proceedings
as the application in question had been filed several months before
that clause was added to the proviso. It is the contention of the
appellant that the expression “entertain” found in the proviso
refers to the initiation of the proceedings and not to the stage
when the Court takes up the application for consideration. This;
contention was rejected by the High Court relying on the decision
of that court in Kundan Lal v. Jagan Nath Sharma, AIR 1982
All 547. The same view had been taken by the said High Court
in Dhoom Chand Jain v. Chamanlal Gupta, AIR 1962 All 543
and Haji Rahim Bux and Sons v. Firm Samiullah and Sons,
AIR 1963 All 320 and again in Mahavir Singh v. Gauri
Shankar,  AIR 1964 All 289. These decisions have interpreted
the expression “entertain” as meaning ‘adjudicate upon’ or
‘proceed to consider on merits.’ This view of the High Court has
been accepted as correct by this Court in Lakshmiratan
Engineering 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 that
Clause (b) of the proviso did not apply to the present
proceedings.”
The word ‘entertain’ came up for consideration in Hindusthan
Commercial Bank Ltd. (supra) in the context of Order XXI Rule
90
as amended by the Allahabad High Court. The expression entertain has
been 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 jurisdiction
and the exercise of jurisdiction. In case jurisdiction is exercised with
material irregularity or with illegality, it would also constitute jurisdictional
error. However, if a court has jurisdiction to entertain a suit but in
exercise of jurisdiction, a mistake has been committed, though it would
be a jurisdictional error but not lack of it. It may be a jurisdictional error
open for interference in appellate or revisional jurisdiction.
34. In Dabur India Limited v. K. R. Industries, 2008 10 SCC
595, it has been observed that the jurisdiction under Order II Rules 2
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and 3 of the Code of Civil Procedure can be exercised only when the
court has otherwise jurisdiction in respect of the cause of action
wherefor the action has been brought. The Court has observed:
 “19.  The question which was posed by the learned Single Judge
is as under:
“The next question, however, which is more important is
whether the plaintiff can combine the two causes of action,
one under the Copyright Act and the second under the Act
of 1958 in a situation where this Court has the jurisdiction
insofar as cause of action under the Copyright Act is
concerned but has no territorial jurisdiction to entertain the
cause of action relating to Act of 1958.”
Noticing the provisions of Order 2 Rules 2 and 3 of the Code of
Civil Procedure enabling the plaintiff to combine more than one
causes of action, it was opined that the said provisions relate to
pecuniary jurisdiction. The said jurisdiction, however, can be
exercised only in the event the court has otherwise jurisdiction
in respect of the cause of action wherefor the action has been
brought.”
35. The question of maintainability was also examined with
reference to jurisdiction in The Premier Automobiles Ltd. v. Kamlakar
Shantaram Wadke & Ors., AIR 1975 SC 2238, it has been held that
in a Civil Court, suit was not maintainable for a decree for permanent
injunction as it had no jurisdiction to grant the relief or even a temporary
relief.  The Court held:
 “27.…… The
better and more reasonable view, therefore, to
take is that all workmen represented by the two plaintiffs sought
an order of injunction in the civil court to prevent an injury which
was proposed to be caused to them in relation to their right under
the Act. Hence a suit for a decree for permanent injunction was
not maintainable in the civil court as it had no jurisdiction to grant
the relief or even a temporary relief.”
(emphasis supplied)
36. In a case, jurisdictional facts, as well as adjudicatory facts,
may arise. When jurisdictional facts to entertain are missing, the court/
tribunal cannot act at all. In the case of adjudicatory facts, the court
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can proceed with the trial of the case exercising jurisdiction, and the
same implies that the court has the jurisdiction to deal with the matter,
that is called the power to examine on merits. Adjudication is the power
to proceed to consider on merits.
37. In Bhai Jai Kishen Singh v. Peoples Bank of Northern
India (in liquidation) through Bhagwati Shankar, Official
Liquidator, AIR 1944 Lah 136, it has been observed that jurisdiction
issue is one like preliminary issue not where the proceedings were
dismissed on merits.  In Hari Prasad Mulshankar Trivedi v. V.B. Raju
and Ors., (1974) 3 SCC 415 in the context of word jurisdiction, this
Court observed thus:
“28. We think that neither the decision of this Court in
Baidyanath Panjiar v. Sita Ram Mahto, (1969) 2 SCC 447
which took the view that violation of Section 23(3) of the 1950
Act in entering or deleting the names of persons in the electoral
rolls after the last date for making nomination relates to lack of
power, nor the decision in Wopanso v. N.L. Oduya, (1971) 2 SCC
550 and others which also suggests that where there was lack
of power, the question can be gone into by the Court trying an
election petition, can, by analogy, be extended to an entry in the
electoral roll on the basis of a wrong adjudication of the question
of ordinary residence. Though the dividing line between lack of
jurisdiction or power and erroneous exercise of it has become
thin with the decision of the House of Lords in The
Anisminic
case, (1967) 3 WLR 382 we do not think that the distinction
between the two has been completely wiped out. We are aware
of the difficulty in formulating an exhaustive rule to tell when
there is lack of power and when there is an erroneous exercise
of it. The difficulty has arisen because the word “jurisdiction” is
an expression which is used in a variety of senses and takes its
colour from its context, (see per Diplock, J., at p. 394 in the
Anisminic case). Whereas the “pure” theory of jurisdiction would
reduce jurisdictional control to a vanishing point, the adoption of
a narrower meaning might result in a more useful legal concept
even though the formal structure of law may lose something of
its logical symmetry. “At bottom, the problem of defining the
concept of jurisdiction for purpose of judicial review has been
one of public policy rather than one of logic.” And viewed from
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the aspect of public policy as reflected in the provisions of the
1950 and 1951 Acts, we do not think that a wrong decision on a
question of ordinary residence for the purpose of entering a
person’s name in the electoral roll should be treated as a
jurisdictional error which can be judicially reviewed either in a
civil court or before an election tribunal.”
 (emphasis supplied)
It is observed that expression “jurisdiction” is used in a variety
of senses and takes its colour from its context, in which it is used as
observed in Anisminic Ltd. v. Foreign Compensation Commission,
[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 been
observed that it has both a narrow and broader meaning.  In the sense
of former, it means the authority to embark upon an enquiry, and latter,
the decision is in non-compliance with provisions of Act.  It is observed:
“22. The principle thus is that exclusion of the jurisdiction of the
civil courts is not to be readily inferred. Such exclusion, however,
is inferred where the statute gives finality to the order of the
tribunal on which it confers jurisdiction and provides for adequate
remedy to do what the courts would normally do in such a
proceeding before it. Even where a statute gives finality, such a
provision does not exclude cases where the provisions of the
particular statute have not been
complied with, or the tribunal
has not acted in conformity with the fundamental principles of
judicial procedure. The word “jurisdiction” has both a narrow and
a wider meaning. In the sense of the former, it means the
authority to embark upon an enquiry; in the sense of the latter, it
is used in several aspects, one of such aspects being that the
decision of the tribunal is in non-compliance with the provisions
of the Act. Accordingly, a determination by a tribunal of a
question other than the one which the statute directs it to decide
would be a decision not under the provisions of the Act, and
therefore, in excess of its jurisdiction.”
 (emphasis supplied)
39. Again, in Official Trustee, West Bengal v. Sachindra Nath
Chatterjee, AIR 1969 SC 823, it has been observed that before a court
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can be held to have the jurisdiction to decide a particular matter, it must
not only have the jurisdiction to try the suit brought but must also have
the authority to pass the order sought from it.  It should have the power
to hear and decide the issue.  The Court observed:
“12. It is plain that if the learned judge had no jurisdiction to pass
the order in question then the order is null and void. It is equally
plain that if he had jurisdiction to pronounce on the plea put
forward before him the fact that he made an incorrect order or
even an illegal order cannot affect its validity. Therefore all that
we have to see is whether Ramfry, J. had jurisdiction to entertain
the application made by the settlor.
13. What is meant by jurisdiction? This question is answered by
Mukherjee, Acting C.J., speaking for the full bench of the
Calcutta High Court in Hirday Nath Roy v. Ramachandra
Barna Sarma. ILR 48 Cal 138 = AIR 1921 Cal 84 (FB).  At
page 146 of the report ILR (Cal) = (at p.36 of AIR) the learned
judge explained what exactly is meant by jurisdiction. We can
do no better than to quote his words:
“In the order of Reference to a Full Bench in the case of Sukhlal
v. Tara Chand, (1905) ILR 33 Cal 68 (FB), it was stated that
jurisdiction may be defined to be the power of a Court to ‘hear
and determine a cause, to adjudicate and exercise any judicial
power in relation to it:’ in other words, by jurisdiction is meant
‘the authority which a court has to decide
matters that are
litigated before it or to take cognizance of matters presented in
a formal way for its decision.’ An examination of the cases in
the books discloses numerous attempts to define the term
‘jurisdiction’, which has been stated to be ‘the power to hear
and determine issues of law and fact’, “the authority by which
the judicial officers take cognizance of and ‘decide causes’;” ‘the
authority to hear and decide a legal controversy’, “the power to
hear and determine the subject-matter in controversy between
parties to a suit and to adjudicate or exercise any judicial power
over them”; “the power to hear, determine and pronounce
judgment on the issues before the Court”; “the power or authority
which is conferred upon a Court by the Legislature to hear and
determine causes between parties and to carry the judgments
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into effect”; “the power to enquire into the facts, to apply the
law, to pronounce the judgment and to carry it into execution”.”
 (emphasis supplied)
40. In National Thermal Power Corpn. Ltd. v. Siemens
Atkeingesellschaft, (2007) 4 SCC 451, the question came up for
consideration before a Division Bench of the Court concerning what is
a jurisdictional question and whether declining to go into the merits of
the claim would amount to a refusal to exercise jurisdiction.  The Court
held that declining to go into the merits of a claim in a particular case
may amount to a refusal to exercise jurisdiction.  What is jurisdictional
question and jurisdiction was also considered by this Court.  The question
of limitation involving the question of jurisdiction of the Court or Tribunal
came up for consideration, as a preliminary objection was raised as to
maintainability of the appeal.  The relevant portion of discussion is
extracted hereunder:
 “17. In the larger sense, any refusal to go into the merits of a
claim may be in the realm of jurisdiction. Even the dismissal of
the claim as barred by limitation may, in a sense touch on the
jurisdiction of the court or tribunal. When a claim is dismissed
on the ground of it being barred by limitation, it will be, in a sense,
a case of the court or tribunal refusing to exercise jurisdiction to
go into the merits of the claim. In Pandurang Dhoni Chougule
v. Maruti Hari Jadhav AIR 1996 SC
153, this Court observed
that: (AIR p. 155, para 10)
“It is well settled that a plea of limitation or a plea of res
judicata is a plea of law which concerns the jurisdiction of
the court which tries the proceedings. A finding on these pleas
in favour of the party raising them would oust the jurisdiction
of the court, and so, an erroneous decision on these pleas can
be said to be concerned with questions of jurisdiction which
fall within the purview of Section 115 of the Code.”
In a particular sense, therefore, any declining to go into the merits
of a claim could be said to be a case of refusal to exercise
jurisdiction.
18. The expression “jurisdiction” is a word of many hues. Its
colour is to be discerned from the setting in which it is used. ….”
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It is apparent that when a claim is dismissed as barred by
limitation, no doubt the refusal is within the realm of exercise of
jurisdiction by the Court or Tribunal.  It cannot be said that the
Court has refused to exercise the jurisdiction to go into the merits
by a wrong decision dismissing the case on the ground of
limitation.  In that context, Pandurang Dhondi Chougule
(supra) has been relied upon which has dealt with the question
of jurisdiction under Section 115 of CPC.  This Court has also
observed it in National Thermal Power Corpn. Ltd. (supra) that
in the question of jurisdiction, the expression jurisdiction is a word
of many hues and having a different meaning in which it is used.
There is no dispute as to the abovementioned proposition laid
down by this Court.  The question in the aforesaid decision was
not relating to jurisdiction to entertain the matter and to pass
decree immune from collateral challenge. Thus, the decision lends
no support to the cause of the respondents.
41. In M.L. Sethi v. R.P. Kapur (supra), the Court observed as
under:
“12. …..The jurisdiction of the High Court under Section 115 of
the CPC is a limited one. As long ago as 1884, in Rajah Amir
Hassan Khan v. Sheo Baksh Singh, (1884) LR 11 IA 237, the
Privy Council made the following observation on Section 622 of
the former Code of Civil Procedure, which was replaced by
Section 115 of the Code of 1908:
“The question then is, did the Judges of the lower Courts in
this
case, in the exercise of their jurisdiction, act illegally or
with material irregularity. It appears that they had perfect
jurisdiction to decide the question which was before them, and
they did decide it. Whether they decided rightly or wrongly,
they had jurisdiction to decide the case; and even if they
decided wrongly, they did not exercise their jurisdiction illegally
or with material irregularity.”
In Balakrishna Udayar v. Vasudeva Aiyar, (1917) LR 44 IA
261, 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 illegal
assumption of it. The section is not directed against
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conclusions of law or fact in which the question of jurisdiction
is not involved.”
In N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments
Board, Madras, (1948-49) LR 76 IA 73, the Judicial Committee
said that Section 115 empowers the High Court to satisfy itself
on three matters, (a) that the order of the subordinate court is
within its jurisdiction; (b) that the case is one in which the court
ought to exercise jurisdiction; and (c) that in exercising jurisdiction
the court has not acted illegally, that is, in breach of some provision
of law, or with material irregularity, that is, by committing some
error of procedure in the course of the trial which is material in
that it may have affected the ultimate decision. And if the High
Court is satisfied on those three matters, it has no power to
interfere because it differs from the conclusions of the
subordinate 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 Lord
Reid ascribed to it in Anisminic Ltd. v. Foreign Compensation
Commission, (1969) 2 AC 147, namely, the entitlement “to enter
upon the enquiry in question.” If there was an entitlement to enter
upon an enquiry, into the question, then any subsequent error
could only be regarded as an error within the jurisdiction. The
best known formulation of this theory is that made by Lord
Darman in R v. Bolton,
(1841) 1 Q.B. 66. He said that the
question of jurisdiction is determinable at the commencement, not
at the conclusion of the enquiry. In Anisminic Ltd. case (supra)
Lord Reid said:
“But there are many cases where, although the tribunal had
jurisdiction to enter on the enquiry it has done or failed to do
something in the course of the enquiry which is of such a
nature that its decision is a nullity. It may have given its
decision in bad faith. It may have made a decision which it
had no power to make. It may have failed in course of the
enquiry to comply with the requirements of natural justice. It
may in perfect good faith have misconstrued the provisions
giving it power to act so that it failed to deal with the question
remitted to it and decided some question which was not
remitted to it. It may have refused to take into account
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something which it was required to take into account. Or it
may have based its decision on some matter which, under the
provisions setting it up, it had no right to take into account. I
do not intend this list to be exhaustive.”
In the same case, Lord Pearce said:
“Lack of jurisdiction may arise in various ways. There may
be an absence of those formalities or things which are
conditions precedent to the tribunal having any jurisdiction to
embark on an enquiry. Or the tribunal may at the end make
an order that it has no jurisdiction to make. Or, in the
intervening stage while engaged on a proper enquiry, the
tribunal may depart from the rules of natural justice; or it may
ask itself the wrong questions; or it may take into account
matters which it was not directed to take into account.
Thereby it would step outside its jurisdiction. It would turn its
inquiry into something not directed by Parliament and fail to
make the inquiry which the Parliament did direct. Any of these
things would cause its purported decision to be a nullity.”
The dicta of the majority of the House of Lords in the above
case would show the extent to which ‘lack’ and ‘excess’ of
jurisdiction have been assimilated or, in other words, the extent
to which we have moved away from the traditional concept of
“jurisdiction.” The effect of the dicta, in that case is to reduce
the difference between jurisdictional error and error of law within
jurisdiction almost to vanishing point. The
practical effect of the
decision is that any error of law can be reckoned as jurisdictional.
This comes perilously close to saying that there is jurisdiction if
the decision is right in law but none if it is wrong. Almost any
misconstruction of a statute can be represented as “basing their
decision on a matter with which they have no right to deal,”
“imposing an unwarranted condition” or “addressing themselves
to a wrong question.” The majority opinion in the case leaves a
Court or Tribunal with virtually no margin of legal error. Whether
there is excess of jurisdiction or merely error within jurisdiction
can be determined only by construing the empowering statute,
which will give little guidance. It is really a question of how much
latitude the court is prepared to allow. In the end, it can only be
a value judgment (see H.N.R. Wade, “Constitutional and
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Administrative Aspects of the Anisminic case”, Law Quarterly
Review, Vol. 85,1969, p. 198). Why is it that a wrong decision
on a question of limitation or res judicata was treated as a
jurisdictional error and liable to be interfered with in revision? It
is a bit difficult to understand how an erroneous decision on a
question of limitation or res judicata would oust the jurisdiction
of the court in the primitive sense of the term and render the
decision or a decree embodying the decision a nullity liable to
collateral attack. The reason can only be that the error of law
was considered as vital by the court. And there is no yardstick
to determine the magnitude of the error other than the opinion
of the Court.”
(emphasis supplied)
It has been laid down that erroneous decision on the question of
res judicata or limitation would not oust the jurisdiction of the Court
nor render the decision a nullity liable to collateral attack. The test of
having no jurisdiction by the Court is that its judgment is amenable to
attack 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 issue
whether decree passed by the civil court in a suit which was barred
by limitation can be treated to be a nullity or not.  It was observed that
since the civil court had the jurisdiction to decide the suit although filed
beyond limitation, the same was not a
nullity and observed thus:
“14. A suit or proceeding entertained and decided in spite of being
barred by limitation is not without jurisdiction; at worst it can be
a case of illegality. ….”
Thus, it is apparent that in a case barred by limitation, Court has
jurisdiction to decide the issue.  In case it has no jurisdiction, it cannot
decide such an issue on merits at all.
IN RE:  JURISDICTION TO ENTERTAIN UNDER
SECTION 9A, CPC
43. The word “jurisdiction” in section 9A is qualified with
expression to ‘entertain’ the suit.  Thus, it is apparent that the scope of
Section 9A has been narrowed down by the legislature as compared
to the provisions contained in Order XIV Rule 2(2) by not including
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the provisions as to “a bar created by any other law for the time being
in force.”
44. Since the expression used in section 9A as incorporated in
Maharashtra, is “jurisdiction to entertain” that is in a narrower sense
and its purport cannot be taken to be comprehensive as laid down in
Foreshore Cooperative Housing Society Limited (supra).
45. When we consider what colour expression “jurisdiction” has
in Section 9A, it is clearly in the context of power to entertain,
jurisdiction takes colour from accompanying word ‘entertain’; i.e. the
Court should have jurisdiction to receive a case for consideration or to
try it. In case  there is no jurisdiction, court has no competence to give
the relief, but if it has, it cannot give such relief for the reason that
claim is time-barred by limitation or is barred by the principle of res
judicata or by bar created under any other law for the time being in
force. When a case is barred by res judicata or limitation, it is not
that the Court has no 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 to property is provided under Section 27 of the Limitation Act.
When Court dismisses a suit on the ground of limitation, right to property
is lost, to hold so the court must have jurisdiction to entertain it. The
Court is enjoined with a duty under Section 3 of the Limitation Act to
take 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 be
included in the expression “jurisdiction to entertain” suit used in Section
9A. The Court has to receive a case for consideration and entertain it,
to look into the facts constituting  limitation or bar created by any other
law to give relief, it has to decide the question on merits; then it has
the power to dismiss the same on the ground of limitation or such other
bar created by any other law. Thus, the meaning to be given to
jurisdiction to entertain in Section 9A is a narrow one as to
maintainability, the competence of the court to receive the suit for
adjudication is only covered under the provisions. The word entertain
cannot be said to be the inability to grant relief on merits, but same
relates to receiving a suit to initiate the very process for granting relief.
46. The provision has been carved out under Section 9A, CPC
to decide, question of jurisdiction to entertain, at the stage of deciding
the interim application for injunction and the very purpose of enactment
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of the same was that the suits were being instituted without serving a
notice under Section 80, which at the time of initial incorporation of
provisions could not have been instituted without serving a notice of
two months.  There was a bar to institute a suit.  It became practice
that after obtaining injunction, suit was allowed to be withdrawn with
liberty to file fresh suit after serving the notice.  To take care of misuse
of the provisions, Section 9A was introduced in the year 1970 and had
been re-introduced again in 1977 to consider question of jurisdiction to
entertain at the stage of granting injunction or setting aside. The
provision has been inserted having the narrow meaning as at the stage
of granting ex parte injunction; the question can be considered. The
written statement, set-off and counterclaim are not filed, discovery,
inspection, admission, production and summoning of the documents
stage has not reached and after the stages described above, framing
of issues takes place under Order XIV. As per Order XIV Rule 1, issues
arise when a material proposition of fact or law is affirmed by the one
party and denied by the other. The issues are framed on the material
proposition, denied by another party. There are issues of facts and
issues of law. In case specific facts are admitted, and if the question
of law arises which is dependent upon the outcome of admitted facts,
it is open to the Court to pronounce
the judgment based on admitted
facts and the preliminary question of law under the provisions of Order
XIV Rule 2. In Order XIV Rule 2(1), the Court may decide the case
on a preliminary issue.  It has to pronounce the judgment on all issues.
Order XIV Rule 2(2) makes a departure and Court may decide the
question of law as to jurisdiction of the Court or a bar created to the
suit by any law for the time being in force, such as under the Limitation
Act.
47. In a case question of limitation can be decided based on
admitted facts, it can be decided as a preliminary issue under Order
XIV Rule 2(2)(b). Once facts are disputed about limitation, the
determination of the question of limitation also cannot be made under
Order XIV Rule 2(2) as a preliminary issue or any other such issue of
law which requires examination of the disputed facts. In case of dispute
as to facts, is necessary to be determined to give a finding on a question
of law.  Such question cannot be decided as a preliminary issue. In a
case, the question of jurisdiction also depends upon the proof of facts
which are disputed.  It cannot be decided as a preliminary issue if the
facts are disputed and the question of law is dependent upon the
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outcome of the investigation of facts, such question of law cannot be
decided as a preliminary issue, is settled proposition of law either before
the amendment of CPC and post amendment in the year 1976.
48. The suit/application which is barred by limitation is not a
ground of jurisdiction of the court to entertain a suit.  If a plea of adverse
possession has been taken under Article 65 of the Limitation Act, in
case 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 has
to be dismissed on the ground of limitation, but proof of adverse
possession for 12 years then the suit would be barred by limitation such
question as to limitation cannot be decided as a preliminary issue.
49. What is intended by Section 9A of the Code of Civil
Procedure, 1908 (CPC) is the defect of jurisdiction. It may be inter
alia territorial or concerning the subject matter. The defect of
jurisdiction may be due to provisions of the law. In Raghunath Das v.
Gokal Chand, AIR 1958 SC 827, the execution of award of the decree
was dismissed by the Court on the ground that decree was a nullity.
The Court had no jurisdiction to pass a decree of the partition of
agricultural land. It held that defect of the jurisdiction in the court that
passed decree became attached to decree itself as dismissal of the suit
was on account of the defect of jurisdiction. Thus, in our considered
opinion, it is only the
maintainability of the suit before the court which
is covered within the purview of Section 9-A CPC as amended in
Maharashtra.
50. Reliance has been placed on the provisions of Section 3 of
the Limitation Act to submit that the Court cannot proceed with the
suit which is barred by limitation although limitation has not been set
up as a defence. No doubt about it that Section 3 of the Act provides
that subject to the provisions contained in Sections 4 to 24 of the
Limitation Act, every suit instituted, appeal preferred, and the application
made after the prescribed period shall be dismissed, it nowhere provides
that Court has no jurisdiction to deal with the matter.  Until and unless
Court has the jurisdiction, it cannot proceed to dismiss it on the ground
of limitation under Section 3.
51. Within the ken of provisions of section 9A, CPC jurisdiction
of the Court to entertain the suit has to be decided without recording
of evidence. Recording of evidence is not contemplated even at the
stage of framing issue under Order XIV Rule 2 much less it can be
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allowed at the stage of grant of injunction, it would be the grossest
misuse of the provisions of the law to permit the parties to adduce the
evidence, to prove facts with respect to a preliminary issue of jurisdiction
to entertain a suit. In case it is purely a question of law, it can be decided
within 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) of
the CPC.  The scope is a somewhat limited one.  Two full-fledged trials
by leading evidence are not contemplated in CPC, one of the preliminary
issue and another on other issues.  Until and unless the question is pure
of 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 preliminary
issue, either under Section 9A or under Order XIV Rule 2 CPC. Before
or after its amendment of CPC concerning both provisions, the position
is the same.
IN RE:  ORDER XIV RULE 2
52. The expressions used in the Order XIV Rule 2 as
incorporated in the CPC by way of Amendment Act, 1976, firstly deals
with the jurisdiction of the Court or secondly a bar to the suit created
by any law for the time being in force. The expression used in the Order
XIV Rule 2(2)(a) deals with the jurisdiction of the Court.
53. In Sajanbir Singh Anand and others v. Raminder Kaur
Anand and others, 2018 (3) Mh.L.J. 892; the question came up for
consideration as to
the period of limitation for filing administration suit.
It has been observed the relief claimed by the plaintiff has to be decided
on facts of the case, and aspect of limitation would have to be
considered in the context. In an administration suit, the Limitation Act,
1963 does not prescribe specific article for determining the period of
limitation. There is no specific article for determination of the period
of limitation. The pleadings and the prayers of a suit for administration
would have to be analysed, and after that, the relevant article is to be
made applicable.
54. The submission was raised that Section 9A is repugnant to
Order XIV Rule 2. We have interpreted Section 9A and we find that
the scope of Section 9A is different as compared to the provisions of
Order XIV Rule 2 and the scope of Section 9A is limited not as
comprehensive as that of Order XIV Rule 2. However, the concept of
Order XIV Rule 2 with respect to what can be treated as preliminary
issue will be applicable under Section 9A only in case question of
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“jurisdiction to entertain” arises, i.e., if it can be decided purely as
question of law, at the stage contemplated under Section 9A, not in case
if it is a mixed question of law and fact, no evidence can be recorded
to decide the question under Section 9A, CPC.
55. In Abdul Rahman v. Prasony Bai and another, (2003) 1
SCC 488, the provisions of Order XIV Rule 2 came up for consideration.
Where facts are admitted, suit can be disposed of on preliminary issue
and no particular procedure need be followed by the Court.  It has been
held that in particular, if facts are admitted, the issue of res judicata
and constructive res judicata and also maintainability of the suit should
be decided as a preliminary issue. 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 preliminary
issues, no particular procedure was required to be followed by
the High Court. In terms of Order 14 Rule 1 of the Code of Civil
Procedure, a civil court can dispose of a suit on preliminary issues.
It is neither in doubt nor in dispute that the issues of res judicata
and/or constructive res judicata as also the maintainability of the
suit can be adjudicated upon as preliminary issues. Such issues,
in fact, when facts are admitted, ordinarily should be decided as
preliminary issues.”
(emphasis supplied)
In case facts are admitted, no doubt about it that under Order
XIV Rule 2, a suit can be
decided even as to the question of res
judicata, 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 jurisdiction
of the Court as a pure question of law at a preliminary stage. Thus,
the decision in Abdul Rehman v. Prasony Bai (supra) rendered at the
stage of Order XIV Rule 2, has no application to the controversy at
hand.
56. In Gunwantbhai Mulchand Shah v. Anton Elis Farel and
others, (2006) 3 SCC 634, the suit was filed for specific performance.
The Court held that the question of limitation in the facts could not have
been decided as a preliminary issue. The suit could not have been
dismissed as barred by limitation for the relief of specific performance.
Though the Court held that there was jurisdiction, the matter was
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remitted to the trial court to decide all the issues, including limitation
after parties adduced evidence.  In Indian Bank v. Maharashtra State
Cooperative Marketing Federation Ltd., (1998) 5 SCC 69, it is
observed that there is jurisdiction to entertain when the question is of
applicability of Section 10.  This Court in Sneh Lata Goel v. Pushplata
and others, (2019) 3 SCC 594 observed that given the provisions of
Section 21 of CPC, no objection as to the place of suing should be
allowed by the appellate court unless there is a consequent failure of
justice.  An objection raised in adjudicating court was as to territorial
jurisdiction, which did not travel to the root or to the inherent lack of
jurisdiction of a civil court to entertain the suit.  The competence to try
a case has been considered in Hiralal Patni v. Kali Nath, AIR 1962
SC 199 referred to in Sneh Lata Goel (supra), in which this Court has
observed thus:
“13. Sub-section (1) of Section 21 provides that before raising
an objection to territorial jurisdiction before an appellate or
revisional court, two conditions precedent must be fulfilled:
(i) The objection must be taken in the court of first instance
at the earliest possible opportunity; and
(ii) There has been a consequent failure of justice.
This provision which the legislature has designedly adopted would
make it abundantly clear that an objection to the want of
territorial jurisdiction does not
travel to the root of or to the
inherent lack of jurisdiction of a civil court to entertain the suit.
Hence, it has to be raised before the court of first instance at
the earliest opportunity, and in all cases where issues are settled,
on or before such settlement. Moreover, it is only where there
is a consequent failure of justice that an objection as to the place
of suing can be entertained. Both these conditions have to be
satisfied.
14. The learned counsel appearing on behalf of the respondents
has submitted that the objection as to the lack of territorial
jurisdiction was raised in the written statement before the trial
court. But evidently, the suit was decreed ex parte after the
respondents failed to participate in the proceedings. The provisions
of Section 21(1) contain a clear legislative mandate that an
objection of this nature has to be raised at the earliest possible
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opportunity before issues are settled. Moreover, no such objection
can be allowed to be raised even by an appellate or revisional
jurisdiction, unless both sets of conditions are fulfilled.”
It is in the context of the inherent lack of jurisdiction to entertain
the suit, the expression has been used in Section 9A.
IN RE: MIXED QUESTION OF LAW AND FACT AND
ORDER VII RULE 11 CPC
57. A Three-Judge Bench of this Court in Major S.S. Khanna
v. Brig. F.J. Dhillon, AIR 1964 SC 497, has held that jurisdiction to
try issues of law apart from the issues of fact may be exercised by
the 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 the
mixed 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 from
the plaint averment only, that suit is barred by limitation, it can be tried
as a preliminary issue even in the absence of plea of limitation raised
by the defendants.  However, in cases where the question of limitation
is a mixed question of fact and law and suit does not appear to be barred
by limitation on the face of it, then the facts necessary to prove
limitation, which have been pleaded have to be proved, on issues raised
and decided on evidence.  However, in our considered opinion question
of limitation, in no case, can be said to be a question of jurisdiction of
the 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 requiring
an inquiry into the facts, cannot be tried as a preliminary issue.  The
mixed questions of law and facts cannot be decided as a preliminary
issue.
60. In Ramdayal Umraomal v. Pannalal Jagannathji, 1979
M.P.L.J 736, a Full Bench of Madhya Pradesh High Court has observed
that under Order XIV Rule 2, mixed questions of law and fact requiring
recording of evidence cannot be tried as a preliminary issue. The issue
of jurisdiction can be tried as a preliminary issue when it is an issue of
law requiring no evidence to be adduced. Various High Courts have
taken a similar view in several decisions in Sunni Central Waqf Board
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and others v. Gopal Singh Vishrad and others, AIR 1991 All 89,
Venkatesh r. Desai v. Smt. Pushpa Hosmani & Ors., ILR 2018 Kar
5095, Prithvi Raj v. Munnalal, 1957 RLW 323, Bhag Singh v. Nek
Singh 1994 SCC OnLine P&H 594, State Trading Corporation of
India Ltd. v. Government of the Peoples Republic of Bangladesh,
ILR (1997) Del 229, Naresh Chandra Das v. Gopal Chandra Das,
AIR 1991 Cal 237, Taj Kerala Hotels & Resorts Ltd. v. Easytec India
Pvt. Ltd., 2013 SCC OnLine Ker 20240, Madhabananda
Govindasamy v. Manickam & Ors., 2016-1-L.W. 49, Angsley
Investment Ltd. v. Turus Shipping Service & Ors., AIR 2007 Guj
23; Chandrama Singh v. (D) through LRs v. Ram Kishore Agrawal
& Ors., 2016 SCC OnLine Chh 1740, Naresh Chandra Gautam v.
Chhote Khan, 2003 SCC OnLine Utt 12, Ramagya Tiwari v. Shib
Kumar 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.
61. In Vaish Aggarwal Panchayat v. Inder Kumar and others,
AIR 2015 SC 3357, the question came up for consideration of rejection
of the plaint under Order VII Rule 11 on the ground that same being
barred by limitation. Mere ex facie reading of the plaint, it could not be
held that the suit was barred by time. The question of limitation becomes
a mixed question of facts and law and cannot be decided as a
preliminary issue as the framing of issues and taking evidence was
necessary.
62. In
our opinion, it cannot be laid down as proposition of law
under Order VII Rule 11(d) that plaint cannot be rejected as barred by
limitation. It can be said that it is permissible to do so mainly in a case
where the plaint averment itself indicate the cause of action to be barred
by 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 limitation
in the case being mixed question of law and facts, could not have been
decided as preliminary issue. The provision under which a plaint can
be rejected is provided in Order VII Rule 11(d). The language used in
Order VII Rule 11 is where averments made in plaint does not disclose
a cause of action; relief claimed is undervalued, and the plaint is not
corrected in spite of the direction of the Court; plaint is insufficiently
stamped, and in spite of Court’s order the plaintiff has failed to supply
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the requisite stamp duty; where the suit appears from the statement in
the 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.  What
is of significance under Order VII Rule 11 is that from the averments
of plaint itself the suit is barred by any law and it would include limitation
also including bar created by any other law for the time being in force.
For the rejection of plaint, averments made by the defendant in the
written statement or otherwise cannot be seen, only the averments of
the plaint are material and can be taken into consideration and no other
evidence.
64. The question concerning Order VII Rule 11 came up for
consideration in Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta
and Ors., (2006) 5 SCC 638, as to the determination of the question
of limitation as a preliminary issue. The Court observed that the starting
point of limitation has to be ascertained on facts in every case. A plea
of limitation cannot be decided as an abstract principle of law divorced
from 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 limitation
cannot be decided as a preliminary issue without a decision on facts
based on the evidence that has to be adduced by the parties.  The Court
has no jurisdiction under Order XIV Rule 2 to decide a mixed question
of law and facts as a preliminary issue. Following
observations have
been made:
“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that where
issues both of law and fact arise in the same suit, and the court
is of the opinion that the case or any part thereof may be disposed
of on an issue of law only, it may try that issue first if that issue
relates to (a) the jurisdiction of the court, or (b) a bar to the suit
created by any law for the time being in force. The provisions
of this Rule came up for consideration before this Court in Major
S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 and it was
held as under (SCR p. 421)
“Under Order 14 Rule 2, Code of Civil Procedure where issues
both of law and fact arise in the same suit, and the court is of
the opinion that the case or any part thereof may be disposed of
on the issues of law only, it shall try those issues first, and for
that purpose may, if it thinks fit, postpone the settlement of the
issues of fact until after the issues of law have been determined.
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The jurisdiction to try issues of law apart from the issues of fact
may be exercised only where in the opinion of the court the whole
suit may be disposed of on the issues of law alone, but the Code
confers no jurisdiction upon the court to try a suit on mixed issues
of law and fact as preliminary issues. Normally all the issues in
a suit should be tried by the court; not to do so, especially when
the decision on issues even of law depend upon the decision of
issues of fact, would result in a lopsided trial of the suit.”
Though there has been a slight amendment in the language of
Order 14 Rule 2 CPC by the amending Act, 1976 but the principle
enunciated in the above-quoted decision still holds good and there
can be no departure from the principle that the Code confers no
jurisdiction upon the court to try a suit on mixed issues of law
and fact as a preliminary issue and where the decision on issue
of law depends upon decision of fact, it cannot be tried as a
preliminary issue.”
65. (a) Reliance has been placed on various decisions, under
Order VII Rule 11(d) in which expression has been used that plaint
has to be rejected if any law bars it as per the averments made in the
plaint.  In Raghwendra Sharan Singh v. Ram Prasanna Singh
(Dead) by Lrs., AIR 2019 SC 1430, it was held as under:
“7. Applying the law laid down by this Court in the aforesaid
decisions on exercise of powers under Order 7 Rule 11 of the
CPC to the
facts of the case in hand and the averments in the
plaint, we are of the opinion that both the Courts below have
materially erred in not rejecting the plaint in exercise of powers
under Order 7 Rule 11 of the CPC. It is required to be noted
that it is not in dispute that the original Plaintiff himself executed
the gift deed along with his brother. The deed of gift was a
registered gift deed. The execution of the gift deed is not disputed
by the Plaintiff. It is the case of the Plaintiff that the gift deed
was a showy deed of gift, and therefore the same is not binding
on him. However, it is required to be noted that for approximately
22 years, neither the Plaintiff nor his brother (who died on
15.12.2002) claimed at any point of time that the gift deed was
showy deed of gift. One of the executants of the gift deed -
brother of the Plaintiff during his lifetime never claimed that the
gift deed was a showy deed of gift. It was the Appellant herein-
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original Defendant who filed the suit in the year 2001 for partition,
and the said suit was filed against his brothers to which the
Plaintiff was joined as Defendant No. 10. It appears that the
summon 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, he
instituted the present suit in the year 2003. Even from the
averments in the plaint, it appears that during these 22 years i.e.,
the period from 1981 till 2001/2003, the suit property was
mortgaged by the Appellant herein-original Defendant and the
mortgage deed was executed by the Defendant. Therefore,
considering the averments in the plaint and the bundle of facts
stated in the plaint, we are of the opinion that by clever drafting
the Plaintiff has tried to bring the suit within the period of limitation
which, 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, as
stated above, and as the suit is clearly barred by law of limitation,
the plaint is required to be rejected in exercise of powers under
Order 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 Court
observed as under:
“16. The High Court does not seem to be right in rejecting the
plaint on the ground that it does not disclose any
“cause of
action.” In our view, the trial court was right in coming to the
conclusion that accepting all averments in the plaint, the suit
seems to be barred by limitation. On critical examination of the
plaint as discussed by us above, the suit seems to be clearly
barred on the facts stated in the plaint itself. The suit as framed
is prima facie barred by the law of limitation, provisions of the
Specific Relief Act as also under Order 2 Rule 2 of the Code of
Civil 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 code
for the presentation of election petitions. The statute has
mandated that an election petition must be filed within a period
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of 30 days of the date of the declaration of results. This period
cannot be extended. The provision of Section 14 of the Limitation
Act, 1963 would clearly stand excluded. The legislature having
made a specific provision, any election petition which fails to
comply with the statute is liable to be dismissed. The High Court
has failed to notice both the binding judgments of this Court and
its own precedents on the subject, to which we have referred.
The first respondent filed an election petition in the first instance
to which there was an objection to maintainability under Order
7 Rule 11 CPC. Confronted with the objection under Order 7
Rule 11, the first respondent obviated a decision thereon by
withdrawing the election petition. The grant of liberty to file a
fresh election petition cannot obviate the bar of limitation. The
fresh election petition filed by the first respondent was beyond
the statutory period of 30 days and was hence liable to be
rejected.”
The decisions described above under Order VII Rule 11, CPC
do not advance the submissions raised on behalf of respondents. In case
averments in the plaint indicate that suit is barred, it is liable to be
rejected before the stage of Section 9A of CPC comes.  Thus, the stage
at which Order VII Rule 11(d) has to be applied, is at the threshold
and the scope of Section 9A is somewhat limited and different. Though
the scope of rejection of plaint under Order VII Rule
11(d) is broad
enough which 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 the jurisdiction of the Court
to entertain a suit.
IN RE:  DECISION IN FORESHORE COOPERATIVE
HOUSING SOCIETY LIMITED
66. Now we consider decision relied on Foreshore Cooperative
Housing Society Limited (supra) in which decision of the Court in
Pandurang Dhondi Chougule (supra) and other decisions have been
relied on.
67. In Pandurang Dhondi Chougule (supra), a decision of
Constitution Bench of this Court, the question of “jurisdiction” came
up for consideration in the context of provisions contained in Section
115 of CPC to the extent of revisional powers of the High Court as to
what would constitute an error of question of law.  The Court has
observed thus:
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“10. Judicial decisions have examined the provisions of S.115 of
the Code on several occasions. While exercising its jurisdiction
under S.115, it is not competent to the High Court to correct
errors of fact however gross they maybe, or even errors of law,
unless the said errors have relation to the jurisdiction of the court
to 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 a
jurisdiction not vested in it by law, or has failed to exercise a
jurisdiction so vested, or has acted in the exercise of its jurisdiction
illegally or with material irregularity that the revisional jurisdiction
of the High Court can be properly invoked. It is conceivable that
points of law may arise in proceedings instituted before
subordinate courts which are related to questions of jurisdiction.
It is well settled that a plea of limitation or a plea of res judicata
is a plea of law which concerns the jurisdiction of the court which
tries the proceedings. A finding on these pleas in favour of the
party raising them would oust the jurisdiction of the court, and
so, an erroneous decision on these pleas can be said to be
concerned with questions of jurisdiction which fall within the
purview of S.115 of the Code. But an erroneous decision on a
question of law reached by the subordinate court which has no
relation to questions of jurisdiction of that court, cannot be
corrected by the High Court under
S.115.”
The High Court while exercising powers interfered in the question
of adjustment of debt on the ground that the district court has made
wrong construction of particular decree. The question arose whether
the High Court could have corrected such an error in the exercise of
the revisional jurisdiction under Section 115 of CPC. This Court laid
down that the High Court has exceeded its jurisdiction as the High Court
is not competent to correct the error of fact, however, gross they may
be or even errors of law, unless the said errors have relation to the
jurisdiction.  In case the Court has exercised jurisdiction vested in it
illegally, or with material irregularity, the High Court can interfere.  Given
the context of section 115, CPC, the Constitution Bench has observed
that plea of limitation is a plea of law, which concerns the jurisdiction
of the court which tries the proceedings.  The Constitution Bench has
not laid down that question of limitation, and res judicata have to be
tried as a preliminary issue.  It cannot be disputed as observed by this
Court that the question of res judicata and limitation pertains to the
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question of jurisdiction of the Court to pass a decree in the proceeding.
In case proceeding is barred by limitation, the Court has no jurisdiction
to pass a decree. The court had inherent jurisdiction and in the course
of proceeding how the jurisdiction is to be exercised and what amounts
to a case of a wrong decision in the course of the exercise of jurisdiction
is another colour in which jurisdictional error has been gauged in
Pandurang Dhondi Chougule (supra). It was not a case of want of
the existence of jurisdiction to decide the issue.
The question of
limitation and res judicata, are to be decided within the realm of
exercise of jurisdiction following the law.  The finding on the pleas
mentioned above may oust the jurisdiction of the Court to pass a decree
as other laws bar it.  Thus, these pleas can be termed as concerning
with the question of jurisdiction, in the exercise thereof they have to
be decided.  The decision renders no help to espousing the cause of
the respondents. In Foreshore Cooperative Housing Society Limited
(supra) the court has wrongly applied a different colour of jurisdiction
used under section 115 CPC which was dealt with in Pandurang
Dhondi Chougule case (supra). It is a mismatch and does not merge
with the context of provisions of section 9A CPC.
68. In Ittyavira Mathai v. Varkey Varkey and Anr., AIR 1964
SC 907, the question of jurisdiction to try a suit has been distinguished
from
the error of jurisdiction committed while exercising the same, came
up for consideration before Four-Judge Bench of this Court. The Court
has observed that decree passed in the suit barred by time cannot be
said to be a nullity as the Court passing the same has the jurisdiction
over the party and the subject-matter. A wrong decision is not the one
for which the Court had no jurisdiction. It had jurisdiction over the subject
matter, over the parties and therefore an error of decision would not
make a decree beyond jurisdiction. Section 3 of the Limitation Act also
came up for consideration, which would be a simple error of law. In
the said case jurisdictional issue has been wrongly decided as to
limitation. The decision of the Privy Council in Maqbul Ahmad and
others v. Onkar Pratap Narain, AIR 1935 PC 85, has also been
referred to in Ittyavira Mathai (supra) thus:
“8. The first point raised by Mr. Paikedy for the appellant is that
the decree in OS No. 59 of 1093 obtained by Anantha Iyer and
his brother in the suit on the hypothecation bond executed by
Ittiyavira in favour of Ramalinga Iyer was a nullity because the
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suit was barred by time. Even assuming that the suit was barred
by time, it is difficult to appreciate the contention of the learned
counsel that the decree can be treated as a nullity and ignored
in subsequent litigation. If the suit was barred by time and yet,
the court decreed it, the court would be committing illegality, and
therefore the aggrieved party would be entitled to have the decree
set aside by preferring an appeal against it. However, it is well
settled that a court having jurisdiction over the subject-matter of
the suit and the parties to it, though bound to decide right may
decide wrong; and that even though it decided wrong, it would
not be doing something which it had no jurisdiction to do. It had
the jurisdiction over the subject matter, and it had the jurisdiction
over the party and, therefore, merely because it made an error
in deciding a vital issue in the suit, it cannot be said that it has
acted beyond its jurisdiction. As has often been said, courts have
jurisdiction to decide right or to decide wrong, and even though
they decide wrong, the decrees rendered by them cannot be
treated as nullities. Learned counsel, however, referred us to the
decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap
Narain Singh, AIR 1935 PC 85 and contended that since the
court is bound under the provisions of S.3 of the Limitation Act
to ascertain for itself whether the suit before it was within time,
it would act without jurisdiction if it
fails to do so. All that the
decision relied upon says is that S.3 of the Limitation Act is
peremptory and that the court has to take notice of this provision
and give effect to it even though the point of limitation is not
referred to in the pleadings. The Privy Council has not said that
where the court fails to perform its duty, it acts without
jurisdiction. If it fails to do its duty, it merely makes an error of
law, and an error of law can be corrected only in the manner
laid down in the Civil Procedure Code. If the party aggrieved
does not take appropriate steps to have that error corrected, the
erroneous decree will hold good and will not be open to challenge
on the basis of being a nullity.”
69. The respondents have relied upon the decision in Manick
Chandra Nandy v. Debdas Nandy and others, (1986) 1 SCC 512,
in which again question of exercise of revisional jurisdiction of the High
Court under Section 115 of CPC arose.  This Court pointed out the
difference between revisional and appellate jurisdiction.  The trial court
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held that the application under Rule 13 of Order IX, CPC not to be
barred by limitation. This Court observed that the High Court is not
competent in exercise of its revisional jurisdiction to come to a different
conclusion by examining the facts. Article 123 of the Limitation Act
came up for consideration in the case when the applicant knew of the
passing of the decree. Knowledge of passing of decree is a question
of fact and would be a collateral fact upon which the determination of
the question of jurisdiction of the court would depend. It was again a
case of exercise of jurisdiction by the Court, in that context, observations
have been made about Section 115 which provides that in case
jurisdiction has been exercised illegally or with material irregularity, the
High Court can interfere under Section 115 of CPC, not otherwise. In
Manick Chandra Nandy (supra), the following observations have been
made:
“5. We are constrained to observe that the approach adopted by
the High Court in dealing with the two revisional applications was
one not warranted by law. The High Court treated these two
applications as if they were first appeals and not applications
invoking its jurisdiction under Section 115 of the Code of Civil
Procedure. The nature, quality, and extent of appellate jurisdiction
being exercised in the first appeal and of revisional jurisdiction
are very different. The limits of revisional jurisdiction are
prescribed and its boundaries defined by Section 115 of the Code
of Civil Procedure. Under that section revisional jurisdiction is
to be exercised by the High Court in a case in which no appeal
lies to it from the decision of a subordinate court if it appears to
it that the subordinate court has exercised a jurisdiction not vested
in it by law or has failed to exercise a jurisdiction vested in it by
law or has acted in the exercise of its jurisdiction illegally or with
material irregularity. The exercise of revisional jurisdiction is thus
confined to questions of jurisdiction. While in a first appeal the
court is free to decide all questions of law and fact which arise
in the case, in the exercise of its revisional jurisdiction the High
Court is not entitled to reexamine or reassess the evidence on
record and substitute its findings on facts for those of the
subordinate court. In the instant case, the respondents had raised
a plea that the appellant’s application under Rule 13 of Order
IX was barred by limitation. Now, a plea of limitation concerns
the jurisdiction of the court which tries a proceeding, for a finding
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on this plea in favour of the party raising it would oust the
jurisdiction of the court. In determining the correctness of the
decision reached by the subordinate court on such a plea, the
High Court may at times have to go into a jurisdictional question
of law or fact, that is, it may have to decide collateral questions
upon the ascertainment of which the decision as to jurisdiction
depends. For the purpose of ascertaining whether the subordinate
court has decided such a collateral question rightly, the High
Court cannot, however, function as a court of first appeal so far
as the assessment of evidence is concerned and substitute its
own findings for those arrived at by the subordinate court unless
any such finding is not in any way borne out by the evidence on
the record or is manifestly contrary to evidence or so palpably
wrong that if allowed to stand, would result in grave injustice to
a party.”
The word jurisdiction has a different contour under Section 115,
CPC. The decision has no relevance as to the interpretation of the
expression ‘jurisdiction to entertain’, the context in which it has been
used 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 been
observed that question of limitation involves a question of jurisdiction.
Finding of fact on the question of jurisdiction would be a jurisdictional
fact.  Such a question has to be determined having regard to
the facts
and 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 a
jurisdictional fact. Such a jurisdictional question is to be
determined having regard to both fact and law involved therein.
The Tribunal, in our opinion, committed a manifest error in not
determining the said question, particularly, when in the absence
of any finding of fact that such short-levy of excise duty related
to any positive act on the part of the appellant by way of fraud,
collusion, wilful misstatement or suppression of facts, the extended
period of limitation could not have been invoked and in that view
of the matter no show-cause notice in terms of Rule 10 could
have been issued.”
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The above decision is of no help as it dealt with the exercise of
jurisdiction when the Court has it.  The observation has been made not
in the context of lack of jurisdiction to entertain a suit.
71. Reliance has further been placed on Kamlesh Babu and
others v. Lajpat Rai Sharma and others, (2008) 12 SCC 577, in which
question arose for consideration as to the finding of the trial court which
held that the suit was barred by limitation though the judgment was
reversed by the First Appellate Court. The previous finding was not
dealt with by the First Appellate Court or the High Court. This Court
held that plea of limitation maybe a mixed question of law and facts.
This Court considered the provisions of limitation and Order VII Rule
11(d) and observed that in case of suit appears from the statement made
in the plaint to be barred by law of limitation, the question of law as to
jurisdiction of a Court goes to the very root of the court’s jurisdiction
to entertain and decide a matter as otherwise decision rendered without
jurisdiction will be a nullity. The expression nullity used by Division
Bench in Kamlesh Babu (supra) cannot be said to be in the context of
the limitation, but the question of jurisdiction when the Court has no
power to try the suit. In our opinion, a wrong decision on the question
of limitation will not render judgment a nullity. With great respect we
observe that the expression used by this Court
in para 23 that wrong
decision on the question of limitation would render a judgment of the
Court having jurisdiction to decide the issue as a nullity is ex facie
incorrect. It may be a case of illegal exercise of jurisdiction to decide
the issue, but judgment would not be a nullity.
72. The decision in Indian Farmers Fertilizer Cooperative
Limited v. Bhadra Products, (2018) 2 SCC 534, has been referred by
respondents in which the question came up for consideration as to the
issue of the decision on limitation. This Court has observed that wrong
decision on the question of limitation or res judicata would oust the
jurisdiction of the Court. The scope of jurisdiction under Section 16 of
the Arbitration and Conciliation Act, 1996 has been explained. In our
opinion, the issue of res judicata and limitation can be decided if the
Court has jurisdiction to entertain a suit, not otherwise.
73. The question of jurisdiction came up for consideration in
Indian Farmers Fertilizer Cooperative Limited (supra), in which this
Court observed that same is power of the court to hear and determine
a case and to adjudicate or exercise any judicial power and its contextual
interpretation has to be made. The Court observed:
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“21. That “jurisdiction” is a coat of many colours, and that the
said word displays a certain colour depending upon the context
in which it is mentioned, is well-settled. In the classic sense, in
Official Trustee v. Sachindra Nath Chatterjee, AIR 1969 SC
823, “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 Lal
Sheikh v. Tara Chand Ta, ILR (1906) 33 Cal 68, it was stated
that jurisdiction may be defined to be the power of a court to
hear and determine a cause, to adjudicate and exercise any
judicial power in relation to it; in other words, by jurisdiction
is meant the authority which a court has to decide matters
that are litigated before it or to take cognizance of matters
presented in a formal way for its decision. An examination of
the cases in the books discloses numerous attempts to define the
term “jurisdiction”, which has been stated to be “the power to
hear and determine issues of law and fact”, “the authority by
which the judicial officers take cognizance of and decide causes”;
“the authority to hear and decide a legal controversy”, “the
power to hear and determine the subject-matter in controversy
between parties to a suit and to adjudicate or exercise any judicial
power over them”; “the power to hear, determine and pronounce
judgment on the issues before the court”; “the power or authority
which is conferred upon a court by the legislature to hear and
determine causes
between parties and to carry the judgments
into effect”; “the power to enquire into the facts, to apply the
law, to pronounce the judgment and to carry it into execution”.’
(Mukherjee, Acting C.J., speaking for the Full Bench of the
Calcutta High Court in Hirday Nath Roy v. Ram Chandra Barna
Sarma, 1920 SCC OnLine Cal 85 : ILR (1921) 48 Cal 138, SCC
OnLine Cal)””
In Indian Farmers Fertilizer Cooperative Limited (supra), it
is further observed that if the Court having jurisdiction, has decided the
question wrongly, it cannot be said that Court had no jurisdiction to do
so and erroneous decision on question of jurisdiction or res judicata
would not oust the jurisdiction of the Court and render the decision a
nullity liable to collateral attack.
74. The decisions of Bombay High Court have also been relied
upon by the learned senior counsel appearing for the respondents. In
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Smithkline Beecham Consumer Healthcare (supra), the Court has
observed that legislature has used the word in Section 9A in the broader
sense and the Court is required to consider the bar to the maintainability
of the suit under Section 9A of CPC. The High Court held that it has
a broader meaning where a statute bars the suit. In our opinion, the
decision cannot be said to be laying down the law correctly and as such
same is overruled. Reliance has also been placed on Sudesh v. Abdul
Aziz, 2001 (1) Mh.L.J. 324, in which the High Court has observed that
the law has been laid down that any question of limitation based upon
the issue of jurisdiction has to be decided as a preliminary issue. The
view taken by the Court that since it is a mixed question of law and
facts, could not be decided at the stage, was held to be erroneous under
Section 9A. The decision in Sudesh v. Abdul Aziz (supra) cannot be
said to be laying down the law correctly and is as a result of this
overruled.
75. Reliance has been placed on the decision of Shraddha
Associates v. St. Patrick’s Town Co-operative Housing Society Ltd.,
2003 (2) Mh.L.J. 219, wherein a view has been taken that issue
regarding limitation can be decided as a preliminary issue.  Observations
made in Shraddha Associates (supra) about the question of limitation
for Section 9A cannot be said to be laying down the correct proposition
of law. Similar view taken in Foreshore
Cooperative Housing Society
Limited 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 Neville
Wadia and others, 2012 SCC OnLine Bom 1994, Naresh
Lachnmandas Aswani v. Haridas Aswani and others, 2013 SCC
OnLine Bom 1368 and Union of India and others v. N.K. Bhog and
others, 2015 SCC OnLine Bom 664, cannot be said to be laying down
the law correctly in regard to scope of Section 9A CPC as applicable
in Maharashtra.
IN RE: LITERAL INTERPRETATION
76. The learned counsel appearing for the respondents urged that
the Court cannot twist the clear language of the enactment to avoid
any real or imaginary hardship which such literal interpretation may
cause.  Reliance has also been placed on Rohitash Kumar and others
v. Om Prakash Sharma and others, (2013) 11 SCC 451, in which
following observations have been made:
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“23. There may be a statutory provision, which causes great
hardship or inconvenience to either the party concerned, or to
an individual, but the court has no choice but to enforce it in full
rigour. It is a well-settled principle of interpretation that hardship
or inconvenience caused cannot be used as a basis to alter the
meaning of the language employed by the legislature if such
meaning is clear upon a bare perusal of the statute. If the
language is plain and hence allows only one meaning, the same
has to be given effect to, even if it causes hardship or possible
injustice. [Vide CIT (Ag) v. Keshab Chandra Mandal AIR 1950
SC 265 and D.D. Joshi v. Union of India (1983) 2 SCC 235.]
24. In Bengal Immunity Co. Ltd. v. State of Bihar AIR 1955
SC 661 (SCC p. 685, para 43) it was observed by a Constitution
Bench of this Court that, if there is any hardship, it is for the
legislature to amend the law, and that the court cannot be called
upon to discard the cardinal rule of interpretation for the purpose
of mitigating such hardship. If the language of an Act is
sufficiently clear, the court has to give effect to it, however
inequitable or unjust the result may be. The words, “dura lex
sed lex,” which mean “the law is hard, but it is the law” may be
used, to sum up, the situation. Therefore, even if a statutory
provision causes hardship to some people, it is not for the court
to amend the law. A legal enactment must be interpreted in its
plain and literal
sense, as that is the first principle of interpretation.
25. In Mysore SEB v. Bangalore Woollen Cotton & Silk Mills
Ltd. AIR 1963 SC 1128 (AIR p. 1139, para 27) a Constitution
Bench of this Court held that “inconvenience is not” a decisive
factor to be considered while interpreting a statute. In Martin
Burn 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 never
an evil. A court has no power to ignore that provision to relieve
what it considers a distress resulting from its operation. A
statute must, of course, be given effect to whether a court
likes the result or not.”
(See also CIT v. Vegetables Products Ltd. (1973) 1 SCC 442
and Tata Power Co. Ltd. v. Reliance Energy Ltd.(2009) 16 SCC
659)
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26. Therefore, it is evident that the hardship caused to an
individual, cannot be a ground for not giving effective and
grammatical meaning to every word of the provision if the
language used therein is unequivocal.
Addition and subtraction of words
27. The court has to keep in mind the fact that, while interpreting
the provisions of a statute, it can neither add, nor subtract even
a single word. The legal maxim “A verbis legis non est
recedendum” means, “from the words of law, there must be no
departure.” A section is to be interpreted by reading all of its
parts 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 must
proceed on the footing that the legislature intended what it has
said; even if there is some defect in the phraseology used by it
in framing the statute, and it is not open to the court to add and
amend, or by construction, make up for the deficiencies, which
have 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 Act
is woven. The Court, while interpreting statutory provisions,
cannot add words to a statute, or read words into it which are
not part of it, especially when a literal reading of the same
produces an intelligible result. (Vide Nalinakhya Bysack v.
Shyam Sunder Haldar, AIR 1953 SC 148,
Sri Ram Ram Narain
Medhi v. State of Bombay, AIR 1959 SC 459, M. Pentiah v.
Muddala Veeramallappa, AIR 1961 SC 1107, Balasinor
Nagrik Coop. Bank Ltd. v. Babubhai Shankerlal Pandya
(1987) 1 SCC 606 and Dadi Jagannadham v. Jammulu
Ramulu, (2001) 7 SCC 71. SCC pp. 78-79, para 13.)
28. The statute is not to be construed in light of certain notions
that the legislature might have had in mind, or what the legislature
is 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 is
not permissible for the court to twist the clear language of the
enactment in order to avoid any real or imaginary hardship which
such literal interpretation may cause.
29. In view of the above it becomes crystal clear that under the
garb of interpreting the provision, the court does not have the
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power to add or subtract even a single word, as it would not
amount to interpretation, but legislation.”
Further, reliance has been placed on Nalinakhya Bysack v.
Shyam Sundar Haldar, AIR 1953 SC 148.  Following is the relevant
observation made:
“(9)…It must always be borne in mind, as said by Lord Halsbury
in Commissioner for Special Purposes of Income Tax v.
Pemsel, (1891) A.C. 531 (G) that it is not competent to any court
to proceed upon the assumption that the legislature has made a
mistake. The Court must proceed on the footing that the
legislature intended what it has said. Even if there is some defect
in the phraseology used by the legislature, the court cannot, as
pointed out in Crawford v. Spooner, 6 MOO. P.C. 1(H) aid the
legislature’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 Russell
of Killowen in Hansraj Gupta v. Official Liquidator of Dehra
Dun-Mussoorie Electric Tramway Co., Ltd., AIR 1933 P.J. 63
(I) for others than the courts to remedy the defect. In our view
it is not right to give to the word “decree” a meaning other than
its ordinary accepted meaning and we are bound to say, in spite
of our profound respect for the opinions of the learned Judges
who decided them, that the several cases relied on by the
respondent 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 apparent
that 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 a
suit for consideration to initiate a trial.  When we test on the anvil of
hardship caused by the exclusion of question of limitation from the
jurisdiction to entertain, being tested in the right spirit, it rebounds upon
to negate the submission.
CONCLUSION
77.(a) Given the discussion above, we are of the considered
opinion that the jurisdiction to entertain has different connotation from
the jurisdictional error committed in exercise thereof. There is a
difference between the existence of jurisdiction and the exercise of
jurisdiction. The expression jurisdiction has been used in CPC at several
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places in different contexts and takes colour from the context in which
it has been used. The existence of jurisdiction is reflected by the fact
of amenability of the judgment to attack in the collateral proceedings.
If the court has an inherent lack of jurisdiction, its decision is open to
attack as a nullity. While deciding the issues of the bar created by the
law of limitation, res judicata, the Court must have jurisdiction to decide
these issues. Under the provisions of section 9A and Order XIV Rule
2, it is open to decide preliminary issues if it is purely a question of law
not a mixed question of law and fact by recording evidence. The decision
in Foreshore Cooperative Housing Society Limited (supra) cannot
be said to be laying down the law correctly. We have considered the
decisions referred to therein, they are in different contexts. The decision
of 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 be
decided 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, as
held in Foreshore Cooperative Housing Society Limited (supra).
77.(b) Section 2 of Maharashtra Second Amendment Act, 2018
which provides that where consideration of preliminary issue framed
under 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 section
9A as if the provision under section 9A has not been deleted, does not
change the legal scenario as to what can be decided as a preliminary
issue under section 9A, CPC, as applicable in Maharashtra. The saving
created by the provision of section 2 where consideration of preliminary
issue framed under section 9A is pending on the date of commencement
of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018,
can be decided only if it comes within the parameters as found by us
on the interpretation of section 9A. We reiterate that no issue can be
decided only under the guise of the provision that it has been framed
under section 9A and was pending consideration on the date of
commencement of the (Maharashtra Amendment) Act, 2018. The
reference is answered accordingly.
78. Let the matters be placed before an appropriate Bench for
consideration on merits.
Devika Gujral
Reference answered.