TaxTMI 
TaxTMI 
2019 (10) TMI 1314
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....rative Housing Society Limited v. Praveen D. Desai (Dead) through Legal Representatives and Ors., (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 Section 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 ent....
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....hat the suits used to be filed without notice Under Section 80 of Code of Civil Procedure. 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 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 a....
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....e 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 inter alia 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....
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....etting 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). Secti....
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....d 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. 9. The amendment in 1976 in Code of Civil Procedure 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....
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.... 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 justif....
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....n of Order 14 Rule 2 Code of Civil Procedure. 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 Code of Civil Procedure. As discussed above, Section 9-A of the Maharashtra Amendment Act makes a complete departure from the procedure provided Under Order 14 Rule 2 Code of Civil Procedure. Section 9-A mandates the court to decide the 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 non-obstante Clause which mandates the court to follow the provision. It is a complete departure from the provisions contained in Order 14 Rule 2 Code of Civil Procedure. In other words, the non-obstante 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 ....
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....bhishek Manu Singhvi, and Shri Gopal Jain, learned senior Counsel appearing on behalf of Respondents submitted that Order XIV Rule 2, Code of Civil Procedure 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 Code of Civil Procedure 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 Code of Civil Procedure. 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 befor....
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....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 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 re....
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....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 ex....
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.... 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 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,....
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....ibits 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 i....
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....t 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 Section 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. The learned Judge further observed that Section 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 inabi....
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....n 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, NUAIR 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, ....
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.... 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 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 ....
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....al. (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 pr....
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....fine 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. (emphasis supplied) 40. In National Thermal Power Corporation 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 t....
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....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 Code of Civil Procedure 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 th....
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....ural 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 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 ....
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....urisdiction by the Court is that its judgment is amenable to attack in collateral proceedings. 42. In Budhia Swain and Ors. v. Gopinath Deb and Ors., (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, CODE OF CIVIL PROCEDURE 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)....
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....e the very process for granting relief. 46. The provision has been carved out Under Section 9A, Code of Civil Procedure to decide, question of jurisdiction to entertain, at the stage of deciding the interim application for injunction and the very purpose of enactment 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 rea....
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....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 Code of Civil Procedure 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 do....
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....e 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 "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, ....
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....f applicability of Section 10. This Court in Sneh Lata Goel v. Pushplata and Ors., (2019) 3 SCC 594 observed that given the provisions of Section 21 of Code of Civil Procedure, 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 jurisdictio....
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....n of jurisdiction of the Court in the context it has been used in Section 9A Code of Civil Procedure. 59. In Satti Paradesi Samadhi and Pillayar Temple v. M. Sankuntala (Dead) through Legal Representatives and Ors., (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 and Ors. v. Gopal Singh Vishrad and Ors., AIR 1991 All 89, Venkatesh R. Desai v. Smt. Pushpa Hosmani and Ors., ILR 2018 Kar 5095, Prithvi Raj v. Munnalal, 1957 RLW 323, Bhag Singh v. Nek Singh, State Trading Corporation of India Ltd. v. Government of the Peoples Republic of....
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.... 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: ....
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....exercise of powers Under Order 7 Rule 11 of the Code of Civil Procedure 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 Code of Civil Procedure. 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-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 w....
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....omply 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 Code of Civil Procedure. 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, Code of Civil Procedure 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 Code of Civil Procedure 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....
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.... cannot be corrected by the High Court Under Section 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 Code of Civil Procedure. 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, Code of Civil Procedure, 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 judicat....
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....e 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 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 jurisd....
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.... Court can interfere Under Section 115 of Code of Civil Procedure, 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 revis....
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.... 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. 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 Ors. v. Lajpat Rai Sharma and Ors., (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 fa....
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....nch 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, ....
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....und Ltd. v. MIAL, 2011 (2) Mh.L.J. 936, Jagshi Shah v. Shaan Builders, (2012) 3 Bom CR 770, Ferani Hotels P. Ltd. and Anr. v. Nusli Neville Wadia and Ors., , Naresh Lachnmandas Aswani v. Haridas Aswani and Ors., and Union of India and Ors. v. N.K. Bhog and Ors., 2015 SCC OnLine Bom 664, cannot be said to be laying down the law correctly in regard to scope of Section 9A Code of Civil Procedure 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 Ors. v. Om Prakash Sharma and Ors., (2013) 11 SCC 451, in which following observations have been made: 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 ....
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.... 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 Lt....
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....n 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 Code of Civil Procedure at several 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....