| Headnote |
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 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.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. |
