TaxTMI 
TaxTMI 
2008 (10) TMI 720
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....od faith". The sequence of facts in the case are as follows: i) On 17.03.1958, the Golwalas, who were the original lessees of the suit property, entered into an agreement with Respondent No. 1 ,under which he was granted right of development of a portion of the suit property. These development rights were transferred in favour of his company, ie, Respondent No. 2. Pursuant to the power of attorney executed in favour of Respondent No. 1 by the Golwalas, Respondent No. 1 and/or 2 completed the construction of the building 'Advent' and sold flats therein to various persons on ownership basis. In 1966, the flat purchasers formed a co-operative society registered in the name of Foreshore Co-operative Housing Society Ltd., the Appellants in the present case. ii) Following this, an I.O.D. and commencement certificate for 'Divya Prabha' were granted by Respondent No. 7 to Respondent No. 1. The R.C.C. framework was constructed till 1968 by Respondent No. 1 and 2. On 10.4.1968, notices were issued by Respondent No. 7 to stop work and to remove the unauthorized 10th floor slab and other irregularities. These notices were challenged by the Responde....
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....t a copy of any order that may be passed by the Respondent No. 7 should be given to the Appellants. The Appellants allege that without communicating any permission granted, and in breach of the aforesaid order, Respondent No. 8 entered onto the suit property forcibly and purported to carry out construction works in respect of 'Divya Prabha'. The Appellants filed Civil Suit No. 9957/1998 in this Court for injunction and for disclosure of any permission, if any, as per the aforesaid order. Revalidation certificates dated 28.9.1998 and 5.10.1998 were handed over by the Respondents. On 12.11.1998, an injunction order was granted by this Court in the abovementioned application for a period of six weeks from the date of the said order. v) The Appellants took out a Chamber Summons No. 1531 of 1998 in the City Civil Court for amendment of their plaint inter alia to challenge the alleged revalidation permission dated 18.9.1998 and 5.10.1998. The Appellants also took out a Notice of Motion No. 1285 of 1999 inter alia praying for an injunction restraining Respondent Nos. 1-6 and Respondent No. 8, from carrying out of construction in respect of shell structure 'Divya....
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....he Code of Civil Procedure, 1908. b. The Learned Single Judge had ignored the contention of the Appellants that the suit was within time, even without providing for the exclusion of time under Section 14 of the Limitation Act, 1963. The Learned Single Judge had erroneously held that the Appellants were required to plead and prove that the previous suit filed by the Appellants in the Bombay City Civil Court in November, 1999 was "instituted" in good faith, to seek the benefit under Section 14 of the Limitation Act. 3. Mr. Doctor, the learned Senior Counsel submitted that Section 9A of the Code of Civil Procedure, pursuant to which the application made by Respondent No. 8 was decided by the Learned Single Judge, has been repealed by Section 32, CPC (Amendment) Act, 1999 and Section 16, CPC (Amendment) Act, 2002. These amendments repeal any provisions of the Code of Civil Procedure, added by the State Legislatures or the High Courts, which are inconsistent with the CPC as originally enacted. Section 9A was inserted by an act of the Maharashtra State Legislature. Therefore in the light of the above amendments, Section 9A should be deemed to have been repealed. Mr. Doc....
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.... L.R. 582 and Shraddha Associates and Anr. v. St. Patrick's Town Cooperative Housing Society Ltd. and Ors. 2003 (3) Bom L.R. 814, paras 821. These cases have held that limitation cannot be decided as a preliminary issue under Section 9A of the Code of Civil Procedure,1908. Mr. Doctor also very strongly relied on a judgment delivered by a four-Judges bench of the Hon'ble Supreme Court in Ittyavira Mathai v. Varkey Varkey: [1964]1SCR495 wherein it was held that an objection to limitation is not an objection as to jurisdiction. Mr. Doctor submitted that the Learned Single Judge has failed to appreciate the ratio in Varkey's case, confusing the ratio with the finding. In Varkey's case, the decreeing of a suit barred by time is not a case of acting without jurisdiction, but is merely an act rendering the judgment illegal, and not a nullity. Mr. Doctor submitted that the Supreme Court has thus drawn a distinction between jurisdiction and limitation. iii) Mr. Doctor, the learned Senior Counsel for the Appellant submitted that the larger bench judgment in Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors. [1966]1SCR102 is not relevant since it ....
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....eged acts of trespass committed on 12.10.1998, 22.10.1998 and 24.10.1998. The main relief prayed for is an injunction, while the prayer for declaration of title is only ancillary. Therefore, Article 58, Limitation Act, 1963, upon which Respondent No. 8 has relied, has no application. ii) The plea of adverse possession has been taken by the Respondents for the first time in the appeal. The same is mutually incompatible with their plea of ownership. The Appellants submit that the plea of adverse possession must be specifically pleaded and proved. The Respondents contend that the Appellants did not specifically state that the Respondents had removed themselves from the property. The Appellants submit that this stand is incorrect. They have stated that the property was formerly abandoned and that the Respondents have forcibly entered onto the property. 6. Mr. Doctor, the learned Senior Counsel, thirdly contended that the Appellants are entitled to claim the benefit of Section 14, Limitation Act, 1963, for the time spent in prosecuting Suit No. 6734/1994 in the Bombay City Civil Court. i) The Appellants submit that they have tendered evidence to show the....
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..... i) The learned Senior Counsel contended that a question of limitation is a question of jurisdiction and therefore ousts the court's jurisdiction to decide the matter on merits. Therefore, a question of limitation can be tried as a preliminary issue under Section 9A of Code of Civil Procedure,1908. ii) To support the contention that limitation ousts the jurisdiction of the court, it was submitted that Section 3, Limitation Act, 1963, provides that a suit, application or appeal after the prescribed period shall be dismissed even though limitation is not set up as a defence. iii) Mr. Madon cited several cases in support of his argument. For instance, in Pandurang Dhodi Chougule and Ors. v. Maruti Hari Jadhav and Ors.: [1966]1SCR102 a five-Judge bench of the Hon'ble Supreme Court has categorically held that limitation was a plea of law concerning jurisdiction and a finding in favour of the party raising it would oust the court's jurisdiction. The same was reiterated in Manish Chandra Nandy v. Debdas Nandy: AIR1986SC446 . iv) In Official Trustee W.B.and Ors. v. Sachindranath Chatterjee and Ors. 1969 (3) SCC 92 the....
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.... title to the said property, which right was extinguished by Section 27 of Limitation Act. 9. Mr. Madon, the learned Senior counsel for the Respondent submitted that the Appellants cannot avail of the benefit of Section 14 Limitation Act, 1963. Mr. Madon contends that the amendment to the plaint, adding paragraph 31(C) was done only as an afterthought to comply with the requirement of Section 14 and not substantiated by leading any oral evidence, even though they were given an opportunity to do so. In Ghisulat Gameshi Lal v. Gumbhimull Pandya AIR1938Cal377 it was held that just because a person engages a lawyer, it does not, by itself mean that he had acted in a bonafide manner and even if the lawyer gives improper or incorrect advice, it cannot be said that he acted in good faith. In Kandepre Raghavayya v. Elukonic Vasudevayya Chetty AIR 1944 Mad. 47 it was held that whether the advocate has shown due care and attention is a question of fact to be decided on the basis of evidence adduced. In the present case, no evidence was led, nor was the name of the advocate who advised the Appellants is disclosed. In Deena v. Bharat Singh [2002]SUPP1SCR289 it was held that the finding of g....
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.... Section 14 of the Limitation Act? 12. With regard to the first issue, the judgment of the Hon'ble Supreme Court which was strongly relied upon by Mr. Doctor, is Ittyavira Mathai v. Varkey Varkey [1964]1SCR495 which was delivered by four Judges Bench of the Hon'ble Supreme Court, wherein paragraph 8 reads as under: 8. The first point raised by Mr. Paikedy for the Appellant is that the decree in O.S. No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by Ittyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. Even assuring that the suit was barred by time, it is difficult to appreciate the contention of 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 an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an Appeal against it. But it is well settled that a Court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may deci....
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....re. Whereas, if "limitation" is specifically raised, it would deal with the power or jurisdiction of the Court to decide the matter. 14. On the contrary, both the learned Senior Counsel Mr. Madon and Mr. Kadam have strongly relied upon the judgment in Pandurang v. Maruti: [1966]1SCR102 of the Hon'ble Supreme Court delivered by a bench of five Judges, wherein paragraph 10 reads as under: 10. The provisions of Section 115 of the Code have been examined by judicial decisions on several occassions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however, gross they may be, 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 (c) of Section 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 ar....
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....at the suit claim was barred by limitation. In the above Pandurang's case, five Judges of the Hon'ble Supreme Court have in no uncertain terms have held that plea of limitation is a plea of law, which concerns jurisdiction. The above decision clearly binds us especially in the light of the above Supreme Court judgment in State of U.P. v. Ramchandra. 18. The moment, the issue of jurisdiction is raised under Section 9A of the Code of Civil Procedure, the said issue should be decided at first, and not to be adjourned to a later date. The main reason is that if the Court comes to finding that it does not have jurisdiction vested in it in law, then no further enquiry is needed and saves a lot of valuable judicial time. In fact, Section 9A itself mandates that when an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties, the Court will have to decide the issue expeditiously and in no case to be adjourned to the hearing of the suit. 19. A Division Bench judgment of our High Court in Smith Kline Beecham Cons v. Hindustan Lever: (2003)105BOMLR547 has categorically held, that it is not sufficient that the Court has territorial or pe....