TaxTMI 
TaxTMI 
2023 (4) TMI 882
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....ers (India) Private Limited, Jubilant Agro and Developers Private Ltd., Tresorie Traders Pvt. Ltd. Hotel Shreelekha Regency Private Limited, Make Waves Sea Resort Private Limited Juhu Beach Resorts Ltd., Sealtite Gaskets Pvt. Ltd., Ideal Properties Pvt. Ltd., Kanishka Properties Pvt. Ltd. Gavotte Traders Pvt. Ltd., Sea Crust Properties Private Limited, Greenfield Hotels and Estates Private Limited Shyamlal Wadhwani, Bindoo Shyamlal Wadhwani For the Appellant : Mr. Kevic Setalvad, Senior Advocate with Mr. Jehan Lalkaka, Ms. Manaswi Agrawal, Mr. Mahesh Dube i/b. Meraka Chambers, Advocate For the Respondents No. 1 to 4. : Mr. Darius Khambata, Senior Advocate with Mr. Yohann Cooper with Mr. Karl Tamboly, Ms. Alya Khan, Ms. Zahra Padamsee and Ms. Jenifer Mogrelia i/b. Vivek A. Vashi, Advocate For the Respondents No. 5 and 23. : Ms. Namrata Shah with Ms. Pooja Vasandani i/b. Rashmikant and Partners, Advocate. For the Respondents No. 27 to 30 : Mr. Sarosh E. Bharucha i/b. Ms. Madhu Hiraskar, Advocate JUDGMENT : (PER ABHAY AHUJA, J.) By this Appeal, the Appellant, who was the original plaintiff in Suit No. 777 of 2014 (the "suit") is seeking to impugn the order and judgment dated 8 a....
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....d in the Benami Act in the light of Sections 2(9)(A)(b)(i) and (ii) and Section 4(3)(b) of the said Act. 4. Further, with respect to the issue of limitation, the Appellant's case is that the cause of action arose on 28 January 2012 when Respondent No. 1 for the first time derogated from the family arrangement of 1995-96 and sought to espouse an oral family arrangement of 1952. The suit was filed on 1 August 2014 and it is submitted that therefore the suit is not barred by limitation. 5. The learned Single Judge was called upon to decide the following two preliminary issues which were framed under Section 9A of the Code of Civil Procedure, 1908 (the "CPC") : "(a) Whether the suit as filed is barred under the provisions of the Benami Transactions (Prohibition) Act, 1988 (the "Benami Act")? (b) Whether the suit is barred by limitation ?" 6. The learned Single Judge observed that the issues of limitation and benami were mixed questions of fact and law requiring evidence. Paragraphs 2, 13, 15, 24, 28, 29 and 30 of the said impugned decision are usefully quoted as under : "2. Before I proceed to the merits, I note that not only has the Plaintiff, Sabita Narang ("Sabita") on prev....
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.... or distribution between the members of the Group" and that "all the properties, assets and businesses continued to vest collectively in the members of the Group with each member entitled to/holding an equal and undivided share, right, title and interest in the properties, assets and businesses and management and control thereof." Given that the Plaint says that in the interregnum there was a change in the share and asset holding pattern, this 'continuance' is a matter of evidence. She alleges, as a matter of established fact that no member of the Gopal Raheja Group exercised or attempted to exercise any independent rights in respect of the shareholding or Directorship. That requires evidence. 15. This is clearly a matter of evidence in every single aspect. Whether the change was pro tem or not, whether the holdings were ostensible, whether the holders were nominees, whether this was for the alleged purpose of assuaging Sandeep's 'fears, insecurities and apprehensions' (and even that he did indeed have any such 'fears, insecurities and apprehensions'), that there were directions by Gopal Raheja, that there was a reiteration of anything at all, or that there was a 'common understa....
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....is only of a resulting trust and not an express trust [Soondardas Thakersey & Ors. vs. Bai Laxmibai & Ors. [1945] ILR Bom 1047]. Moreover, Sabita herself speaks of not one but half a dozen different family arrangements or understandings. One such understanding is post the 1995-1996 Family Arrangement. This finds mention in paragraph 21(g) of the Plaint. There is then in paragraph 26 a mention of a yet another oral arrangement and a common understanding arrived at in regard to a family arrangement for division and distribution of properties. Then there is a later oral agreement mentioned in paragraph 28(c) of the Plaint and this is of 2005. There are at least three or four more such allegations of separate family arrangements. 29. All of these are of course unsupported, without particulars and today without evidence. It is, I think, for the Plaintiff to have convincingly led evidence to establish these alleged family arrangements. In any case, what appears to be material is that if according to the Plaintiff in 2005-2006 there was an agreement or understanding by which certain properties were transferred to Sandeep Raheja, and if this was in derogation of the 1995-1996 Family Arra....
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....ithstanding the above, the impugned decision dismissing the suit on preliminary issues framed by consent, as being barred by the law of limitation and under the Benami Act, is valid and binding upon the Appellant. 10. In support, Mr. Khambata relies upon the decision of the Hon'ble Supreme Court in the case of Sukhbiri Devi and Others vs. Union of India and Others (2022) SCC Online SC 1322 (paragraphs 16 to 19) which he submits following Nusli Neville Wadia vs. Ivory Properties (supra) has, inter alia, held that (a) statements by a party are admissions and facts admitted need not be proved; (b) a party cannot legally have any dispute or grievance in taking their own statements as determining the starting point of limitation; (c) though limitation is a mixed question of fact and law, it will shed the said character and would get confided to one of a question of law when the foundational facts determining the starting point of limitation is vividly and specifically made in the plaint averments; and (d) in such circumstance, the question of limitation can be decided as a preliminary issue on admitted facts under Order 14 Rule 2. Mr. Khambata submits that, therefore, th....
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....llant elected to have the issues of limitation and benami decided as pure questions of law on the basis of her admissions in her plaint. That, the Appellant consented to have her suit decided on the preliminary issues of limitation and benami and cannot now turn around and attack the consent order and/or resile from the consent and/or reopen the question of consent. He submits that the said consent operates as equitable estoppel and it would be completely against public policy to renege on the same. That, once the Appellant agreed and consented to trial of the issues as preliminary issues, and on the said consent, this Court proceeded with the determination of the preliminary issues, the Appellant cannot today be then permitted to contend that this Court could not have decided the said issues as preliminary issues since the same pertain to questions of fact and law. Mr. Khambata refers to the decision of Chopda Automobiles Finance, Hyderabad vs. Sheikh Shabbir Sheikh Noor 1995 (1) MhLJ 833 in support. 15. Mr. Khambata would further submit that even otherwise the Appellant cannot approbate and reprobate and her consent operates as res judicata. It is submitted that having consented....
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....on is a bar to proceeding with a suit as provided under Order 7 Rule 11 of the CPC, which decision is to be restricted to the pleadings in the plaint; (c) Issues under Section 9A are akin to the scope of issues under Order 14 Rule 2 and Order 7 Rule 11 and this Court ought not to have ventured beyond the pleadings made by the Appellant; That, in view of above, the learned Single Judge has rightly found that the plaint was ex-facie barred by limitation on the basis of the admissions in the plaint itself. 17. Mr. Khambata then submits that the suit is also barred under the law of Benami Act on admissions made in the plaint alone. That, the suit was rejected inter alia on the preliminary issue of being barred under the Benami Act on the basis of the Appellant's pleadings and admissions in her suit. That, although the Appellant has sought to contend that Benami can never be decided as a preliminary issue, being a mixed question of fact and law requiring trial and evidence, it is settled law that a plaint can be rejected under the Benami Act on the basis of the averments in the plaint alone. Learned Senior Counsel relies upon the decisions in the cases of [a] Sakshi and Anr. vs. Dar....
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....s a modicum of discretion in framing preliminary issues under Section 9A which makes it clear that [a] the Appellant's consent was not a mere formality; and [b] this Court's hands are not tied by the mandatory nature of Section 9A as it must still exercise a modicum of discretion whilst framing the same. In support, the learned Senior Counsel relies on the following decisions: (a) Ferani Hotels Pvt. Ltd. vs. Nusli Neville Wadia and Ors. Judgment Dated 19 July 2012 in Appeal No. 817 of 2010 in Notice of Motion No. 1863 of 2008 in Suit No. 1628 of 2008. (b) Estate Investments Company Pvt. Ltd. vs. New Haven Pvt. And Ors. [(2017) SCC Online Bom 38 and (c) Mahesh B. Chaudhary vs. Radha Sadan Cooperative Housing Society Ltd. [(2019) SCC Online Bom 232. 19. Mr. Khambata would further submit that the impugned order is not a nullity. He submits that this Court had powers to pass the impugned order under the CPC apart from Section 9A. That, assuming whilst denying that the impugned order could not have been passed under Section 9A this Court in any event had power to pass the impugned order under Order 14 Rule 2 and inherent powers under Section 151, Order 7 Rule 11 of the CPC to rej....
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....erein against the Appellant and the same is pending before this Court. That, the Appellant has clearly elected not to lead evidence as she would have been confronted by her own inconsistencies and is now attempting to use Nusli Neville Wadia vs. Ivory Properties (supra) to contend that evidence could never have been led in the first instance. 23. Mr. Setalvad, learned Senior Counsel, in rejoinder, has reiterated that the objection under Section 9A, in the light of the decision of the Hon'ble Supreme Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra) must be decided without recording evidence; he would submit that the Respondents have wrongly contended that the Appellant elected and consented to the preliminary issues. He would submit that the Respondents' interpretation of the expression 'by consent' in the order dated 8 December 2014 is misplaced, as the consent was only with regard to the manner in which the issues were to be framed. There was no consent to the effect that Section 9A applied and that the issues of limitation and Benami were to be decided under Section 9A with the consent of both the parties. He would submit that once an objection under Sec....
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....fore, prejudice has been caused to the Appellant during the pendency of the present Appeal. Learned Senior Counsel submits that therefore this Court be pleased to allow the Appeal. 24. With respect to the arguments of the learned Counsel for the Respondents that the Appellant is approbating and reprobating, learned Senior Counsel for the Appellant would submit that, that is not the case. He would submit that the Appellant could never have consented to the framing of the issues because framing of a preliminary issue under Section 9A was mandatory and there was no discretion in the matter. He reiterates that the consent was limited to the manner in which the issues were framed. We would also reiterate that in view of the decision of the Apex Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra) as regards the decision not to lead evidence, the same is now immaterial. As in any event, there cannot be any estoppel against law. Learned Senior Counsel in this manner seeks to distinguish the decision in the case of Mumbai International Airport Pvt. Ltd. vs. Golden Chariot Airport & Anr. (supra) relied upon by the learned Counsel for the Respondents. 25. Mr. Setalvad, lea....
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....Judge decisions in the case of Kranti Mohan Guruprasad Mehra and Another vs. Fatehchand Vasuram Behal 1983 Mh.L.J.141 and in the case of Dinyar Behramji Irani vs. Kshirsagar Construction Co. Pvt. Ltd. 1993 (2) Mh. L.J.1812 were relied upon to contend that Section 9A is a self contained scheme with definite object of deciding objection with regard to jurisdiction of the Court to deal with the matter as a preliminary issue. That, disagreeing with the ratio laid down in the two cases, the learned Single Judge concluded that averments made in the plaint determined the jurisdiction of the Court and not the subsequent defence set up by the Defendant and referred the matter, as stated above, to the larger Bench. 28.2. The Division Bench after referring to the statement of object and reasons for adding Section 9A to the CPC and considering the distinguishing features between newly added Section 9A and the earlier Order XIV Rule 2 of the CPC observed that for determination of the preliminary issue under Section 9A which may be a mixed question of law and fact, the parties are required to lead evidence. That, without permitting the parties to lead evidence, the issue of jurisdiction cannot ....
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....ions made in the plaint and not on the contentions that the defendant may raise. It is true that if the jurisdiction of the Court depends upon the proof of a fact and the question as to the existence or otherwise of that fact is canvassed, the parties may lead evidence in support of their respective cases before the preliminary issue as to jurisdiction of the Court is decided." In this view of the matter, we agree with the decision in the case of Kranti Mohan Guruprasad Mehra and another v. Fatechand Vasuram Behal reported in 1983 Mh.L.J. 141 = AIR 1982 BOM. 263 and in the case of Dinyar Behramji Irani v. Kshirsagar Construction Co. Pvt. Ltd. Bombay, reported IN 1993 (2) Mh.L.J. 1812 = 1994 (3) BCR 264. 13. In the result we hold that if section 9-A is not added, then at interim stage, the Court is not required to decide the issue of jurisdiction finally and the Court by referring to the averments made in the plaint, would ordinarily determine whether or not the Court has jurisdiction to try the suit. However, it is apparent that section 9-A is added with a specific object to see that objection with regard to jurisdiction of the Court is decided as a preliminary issue. According....
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....dure, 1908 must be construed harmoniously with Section 9, This was upheld in Smithkline Beechan Consumer Health Care CPC. v. Hindustan Lever Ltd and Others [2003 105 (2) Bom L.R. 547]. ii) Mr. Doctor, cited judgments of Learned Single Judge of this Court pertaining to the question of limitation as a preliminary issue under Section 9A, CPC. In Sudesh w/o Sushilkumar Handa v Abdul Aziz, s/o Umarbhai and Another [2001 (1) Mh.L.J.324] wherein it was held that limitation can be decided as a preliminary issue under Section 9A. However, Mr. Doctor contended that in that case, the point of limitation was raised on the basis of pleadings in the plaint itself. Therefore, it could not be applied to cases where limitation was decided by allowing parties to lead evidence. Mr. Doctor for the Appellants also cited Fedroline Anthony Joseph v. Vinod Vishanji Dhanod Others [2002 (3) Bom. L.R. 582, paras 5-13] and Shraddha Associates and another v. St. Patrick's Town Co-operative Housing Society Ltd. and others [2003 (3) Bom L.R. 814, paras 821]. These cases have held that limitation cannot be decided as a of the Code of Civil on a judgment Court in it preliminary issue under Section 9A Procedure, ....
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....tion is generally one of both law and of fact. Therefore, based on the provisions of Order XIV, Rule 2 of the Code of Civil Procedure, 1908, which requires judgment on all issues, while deciding a question of limitation, the Court must also decide all other issues. The same is mandatory even if the Court concludes that the suit to be barred by limitation. Thus, limitation cannot be said to create a bar as to jurisdiction." 11. After having heard all the learned Senior Counsel in the above, we find that there are two basic issues in the above Appeal, which are as under: a. Whether plea of limitation can be decided as a preliminary issue of jurisdiction under Section 9A of the Code of Civil Procedure? b. Whether the Appellants would be entitled to claim the benefit of 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 Vs. Varkey Varkey AIR 1964 SC 907 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.....
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....er words, if the suit is barred by Limitation, the Court has no jurisdiction to entertain it and the Court is duty bound to dismiss the same, and the parties cannot confer jurisdiction by consent. 21. It is explicitly clear that a plea of limitation is a plea which goes to the jurisdiction of the Court and it is a plea on law, and it is a settled position in law that when a suit is barred by limitation, the Court is precluded from proceeding on the merits of the contentions and in fact obliged to dismiss the suit. 22. In the above, as rightly observed by the learned Single Judge, from the pleadings themselves it is clear that the suit claim is clearly barred by limitation and there is no necessity of leading any evidence in that behalf." 29.3. Thereafter came the decision of this Court in the case of Kamlakar Eknath Salunkhe vs. Baburav Vishnu Javalkar and Others 2012 SCC Online Bom 2024 wherein the Bombay High Court upheld the order passed by the trial Court that the plea of limitation can be decided as a preliminary issue under Section 9A and allowed the parties to lead evidence for determination of the same. The said decision is usefully quoted as under : "1. Heard learne....
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.... point whether the question of limitation could be considered as a preliminary issue under Section 9-A of the CPC and held that the issue of limitation could not to be covered within the ambit of jurisdiction of the Court under Section 9A. It was observed that the expression 'jurisdiction' in Section 9A was used in a narrow sense, i.e., the courts' authority to entertain the suit at the threshold. That, the question of jurisdiction, stricto sensu, has to be considered with reference to the value, place and nature of the subject matter. The classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction over the subject matter is of a fundamental character, and therefore, limitation was held to be beyond the ambit of jurisdiction under Section 9A. Paragraphs 1, 8, 9, 13 to 21 are usefully quoted as under : "1. Leave granted. This appeal arises out of the judgment and order passed by the High Court of Judicature at Bombay in Kamlakar Eknath Salunkhe vs. Baburav Vishnu Javalkar dated 19-12-2012. By the impugned judgment and order, the High Court has dismissed the writ petition filed by the plaintiff appellant herein and upheld the order passed by the Trial Cour....
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.... provides that such application raising an objection as to the jurisdiction of the Court ought to be heard and disposed of as expeditiously as possible and prohibits adjournment of such issue till the hearing of the suit. Section 9A(2) provides that the Court shall have the power to grant interim relief, as it may deem appropriate, pending determination of such preliminary issue regarding jurisdiction before it. 14. The provision, read in its entirety, neither contemplates nor refers to any circumstance where an objection besides the jurisdiction of the Court may be determined as a preliminary issue. It only contemplates the issue of jurisdiction to be framed and determined as a preliminary issue by the Court. 15. This Court in Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors., (1974) 3 SCC 415, in context of the expanse of the term "jurisdiction" has observed that: (SCC pp. 423-24, para 28) "28....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 ar....
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....ch 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 an interim relief, the Court shall determine that question first." 18. Thus, with the intention to put the aforesaid practice to rest, the State Legislature introduced Section 9A by the Amendment Act of 1969 requiring the Court to decide the issue of jurisdiction at the time of granting or vacating the interim relief. In other words, the legislature inserted section 9A to ensure that a suit which is not maintainable for want of jurisdiction of the Court concerned, ought not be tried on merits without first determining the question of maintainability of the suit as to jurisdiction of the Court, approached by the plai....
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....ssue. Considering the earlier decision in the case of Meher Singh vs. Deepak Sawhny (supra), the Hon'ble Supreme Court observed that Section 9A made a complete departure from the procedure provided under Order XIV Rule 2 of the CPC. That, Section 9A mandates the Court to decide jurisdiction of the Court before proceeding with the suit and granting interim relief by way of an injunction. That, Section 9A 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 XIV Rule 2. The express mandate of the Section being the intention of the law to decide the issue relating to the jurisdiction of the Court as a preliminary issue notwithstanding the provisions contained in Order XIV Rule 2. Where the suits are governed by the provisions of Order XIV Rule 2, there is a discretion to the Court to decide the issue based on law as a preliminary issue. 30.2 The Hon'ble Supreme Court observed therefore that Section 9A is mandatory whereas Order XIV Rule 2 is discretionary. Paragraphs 34, 39, 42, 44, 45, 46, 56, 61, 62 and 63 of the said decision are usefully quoted as unde....
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....apparent that Section 9-A is added with a specific object to see that objection with regard to jurisdiction of the Court is decided as a preliminary issue. According to the Legislature, the practice of granting injunctions, without going into the question of jurisdiction even though raised, has led to grave abuse. Hence the said section is added to see that issue of jurisdiction is decided as a preliminary issue notwithstanding anything contained in the Civil Procedure Code, including Order 14, Rule 2. Once the issue is to be decided by raising it as a preliminary issue, it is required to be determined after proper adjudication. Adjudication would require giving of opportunity to the parties to lead evidence, if required." 44. From the reading of the aims and object of the Bill whereby Section 9A was inserted, the term 'jurisdiction' is used in a wider sense and is not restricted to the conventional definition either pecuniary jurisdiction or territorial jurisdiction as submitted by Mr. Nariman, learned senior counsel appearing for the appellant. 45. The term 'jurisdiction' is a term of art; it is an expression used in a variety of senses and draws colour from i....
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....h taking a contrary view. 61. Mr. Nariman, learned Senior Counsel appearing for the appellant put heavy reliance on the decision in Ramesh B. Desai vs. 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 aforesaid decision 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 9A of Maharashtra Amendment Act makes a complete departure from the procedure provided under Order 14, Rule 2, CPC. Section 9A 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 9A provides a self-....
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....he Court has observed: (SCC pp. 325-26, paras 16 & 20-21) "16. The expression "jurisdiction" in Section 9-A is used in a narrow sense, that is, the court's authority to entertain the suit 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 of a fundamental character. 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 ope....
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....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....
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....lished and functions. 21. 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 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....
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.... 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 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. 33. 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. 34. 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, acco....
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.... 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. Shyama Pada Ghose. 35. 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 'ent....
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....d 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 maintain....
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....uestion of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 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. 53. 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; ....
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....bt about it that under Order 14 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 [(2003) 1 SCC 488 rendered at the stage of Order 14 Rule 2, has no application to the controversy at hand. 63. 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. 76. 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 h....
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.... 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." 88. 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 places in different contexts and takes colour from the context in which it h....
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....andeep Raheja, the Respondent No. 1 through Ferani Hotels Pvt. Ltd. but the same has been dismissed on 23 July 2020. 34. To sum up, the decision in the case of Nusli Neville Wadia vs. Ivory Properties which has observed that only pure question of law concerning the inherent jurisdiction of the Court to entertain the suit (i.e. pure questions with regard to value, place and nature of subject matter) can be decided as a preliminary issue under Section 9A and not matters that would entail decision on mixed question of law and fact requiring evidence, has not only overruled Foreshore Co-operative Housing Society Ltd. vs. Praveen D. Desai and Another (supra) but also overturned the view of this Court in the case of Meher Singh vs. Deepak Sawhny (supra). That, therefore, limitation could not be decided as a preliminary issue under Section 9A as the same would involve consideration of facts and evidence to be led. 35. We observe that the Hon'ble Apex Court in Nusli Neville Wadia vs. Ivory Properties (supra) adopted the ratio of a four Judge Bench of the Hon'ble Supreme Court in Ittyavira Mathai vs. Varkey Varkey AIR 1964 SC 907. 36.1. As noted above, the decision in the case of....
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....cka Iyer. Thereafter, Anantha Iyer and Manicka Iyer instituted a suit against Ittiyavira being O.S.No. 59 of 1093 and obtained a decree for realization of the amount against Ittiyavira. The decree holders subsequently transferred their decree to one Venkiteswara Iyer which Venkiteswara Iyer executed and at the Court auction held in execution of the decree, he himself purchased the hypothecated properties which were the suit properties in the suit on 27-4-1099. Venkiteswara Iyer was granted the Sale Certificate by the Court and he obtained possession of the properties on 12-7-1099. 36.3. Anantha Iyer and his brother Ittyavira had even before the institution of the suit, executed a sale deed in favour of his son who was the Appellant before the Hon'ble Supreme Court whereunder he conveyed to him all the properties in the said suit. The sale deed was executed on 8-10-1992. The Appellant was not made a party to the suit filed by Anantha Iyer and his brother and the contention raised by the Respondents was that the sale in favour of the Appellant was not a genuine transaction and therefore, he was not a necessary party to the suit. Ittiyavira died in the year 1107 and on 2-2-1108 V....
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....in favour of the appellant was a sham transaction was denied by them as also the other allegations concerning the purchase of items 3, 5, 14 and 18 by Mathai Ouseph. 36.4. The Trial Court dismissed the suit. The High Court reversed the decree except with respect to certain items. No cross-appeal or cross-objection was filed and therefore, the appeal before the Apex Court was confined to the remaining items in the schedule. 36.5. The first point that was raised on behalf of the Appellant was that the decree in Suit No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit on hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. It was observed that in assuming that the suit was barred by time, it was difficult to appreciate the contention on behalf of the Appellant that the decree could 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. The Apex Court observing that it was we....
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....ivy council in Maqbul Ahmad v. Pratap Narain Singh, has also been referred to in Ittyavira Mathai AIR 1964 SC 907 thus: "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 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 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 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, theref....
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....enami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances, unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, unifor....
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....ly, the impugned order which proceeded on the basis that evidence could, and should have been led, is in our view, contrary to the law laid down by 3Judges in Nusli Neville Wadia vs. Ivory Properties (supra) and will be required to be set aside. 44. Mr. Khambata, learned Senior Counsel for the Respondents has relied upon the decision of the Hon'ble Supreme Court in the case of Sukhbiri Devi and others Vs. Union of India and Others 2022 SCC OnLine SC 1322 to submit that the said decision follows Nusli Neville Wadia. It is observed that the said decision revolves around the Order 14 Rule 2 of the CPC. Order 14 Rule 2 and Section 9A are not synonymous as although both contemplate deciding preliminary issues, they operate in two different spheres viz. the enquiry under Section 9A is limited to the "jurisdiction to entertain" the suit, i.e. inherent jurisdiction be it pecuniary, territorial or subject-matter of the Court to receive/entertain the suit, whereas, under Order 14 Rule 2, the Court may decide preliminary issues relating to any law, such as limitation. Courts having inherent jurisdiction may decide issues such as limitation, benami, etc., under Order 14 Rule 2 from the ....
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....gment on all issues. Order 14 Rule 2(2) makes a departure and the 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. 52. [...] In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2) (b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 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 and the question of law is dependent upon the outcome of the investigation of the 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." (Emphasis added) 17. In view of the legal position ob....
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.... Respondents on the decision in the case of Sukhbiri Devi (supra) does not lend assistance to the case of the Respondents. 47. Learned Senior Counsel for the Respondents has contended that the Appellant had elected and consented to have the suit decided on the preliminary issues of limitation and Benami without leading evidence. 48. In this context, it is pertinent to refer to the decision of the learned Single Judge dated 8 December 2014 which is quoted as under :- "1. The following preliminary issues are framed by consent. (a) Whether the Suit as filed is barred under the provisions of the Benami Transactions Act? (b) Whether the Suit is barred by limitation? 2. On instructions, Mr. Parsurampuria, learned Advocate for the Plaintiff, states that the Plaintiff does not wish to lead evidence on either of the two preliminary issues. 3. In that view of the matter, list the suit on 22nd December 2014 at 3.00 p.m. for hearing on the preliminary issues along with all Notices of Motion. 4. In view of this, no ad-interim reliefs are pressed at this stage." 49. Mr. Khambata has relied on the aforesaid order of the learned Single Judge to contend that the issues have been fram....
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....also a trite law that in the event the document is vague, the same must be construed having regard to surroundings and/or attending circumstances. 18. The nature of the document also plays an important part for construction thereof. The suit filed by the parties, inter alia, involved the question of interpretation of the said consent decree. The parties adduced evidences, inter alia, in regard to the nature of poojas and offerings made to the priest in their individual capacity. The dispute between the parties related to right of worship upon inheritance thereof from their predecessor. Their rights in regard to offer poojas in the temple are itself not in dispute. In a case of this nature where a consent decree does not refer to the entire disputes between the parties and some vagueness remained, the factual background as also the manner in which existence of rights have been claimed by the parties would be relevant." 53. In any event, as noted above, consent which is contrary to law cannot be binding on the Appellant as there cannot be any estoppel against law. 54. In our view, the Respondent's interpretation is misplaced. A plain reading of the order dated 8 December 2014 as ....
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....s no question of consenting to have a preliminary issue decided under Section 9A. Once a preliminary issue under Section 9A was raised the Court had no option but to frame the issue and hear it. 58. Also, the reliance of the learned Senior Counsel for the Respondents on the judgment in the case of Ferani Hotels Pvt. Ltd. vs. Nusli Neville Wadia and Ors. (supra) is misplaced. It is clearly noted in this judgment that under Section 9A(1), the Court is obligated to raise an issue of jurisdiction to be tried as a preliminary issue. Further, we are of the view that the minimal enquiry at the very threshold contemplated in paragraph 19 is with regard to the bonafides of the objection raised by the objector viz., the Respondents nos.1 to 4 in this case. The said Respondents sought to rely upon paragraph 18 to argue that the framing of an issue under Section 9A is not a matter of course and that there is a modicum of discretion vested in the Judge framing the issue, however, this discretion or enquiry is only in respect of the validity or bonafides of the objection. We, therefore, do not find any merit in this objection raised on behalf of the Respondents. 59. In fact the Appellant's dec....
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....y required to frame the preliminary issues under Section 9A, and therefore, the question of consent would not arise. Also, as discussed above, the consent was to the manner in which the issues were framed, and therefore, there would be no question of the Appellant resiling from the consent given to hear the issues under Section 9A. In any event, there cannot be any estoppel against law. Therefore, the case of Mumbai International Airport Pvt. Ltd. vs. Golden Chariot Airport & Anr. (supra) would not assist the case of the Respondents. 63. With respect to the contention on behalf of the Respondents that the Appellant's decision to not lead evidence has converted mixed questions of fact and law into pure questions of law and therefore could be decided under Section 9A, we are of the view that the very fact that the learned Single Judge has held that evidence had to be led to decide either of the two issues, in the light of the decision of the Apex Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra) that question would need to be decided by the learned Single Judge in view of the law settled by the Apex Court. The enquiry under Section 9A, as noted above, is limited ....
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....in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force." 65. Therefore, where the property held Benami falls under the exception set out in Section 4(3) cannot be decided under Order 7 Rule 11 since the matter requires evidence. This ratio would apply with greater vigour to Section 9A. 66. Further, in our view, Section 151 of the CPC also cannot be invoked with reference to a matter which is otherwise covered by a specific provision of the CPC. Section 151 cannot be adopted to defeat the mandate of Section 9A. Paragraph 26 to 35 of the decision of the Hon'ble Supreme Court in the case of Vinod Sheth vs. Devindar Bajaj 2010 8 SCC 1 is usefully quoted as under : "26. But the Code nowhere authorizes or empowers the court to issue a direction to a plaintiff to file an undertaking to pay damages to the defendant in the event of being unsuccessful in the suit. The Code also does not contain a....
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.... law. 29. Considering the scope of Section 151, in adam Sen v. State of U. P., this Court observed: "8.... The inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature...... 9.... The inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the courts for passing such orders which would affect such rights of a party." (emphasis supplied) 30. In Manohar Lal Chopra v. Seth Hiralal this Court held : "21. ...that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their ex....
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....e Division Bench has supported the order of the learned Single Judge on the ground that "the heavy docket does not permit early disposal of suits and thus parties may take advantage of keeping frivolous claims alive"). Such an order, punishing a litigant for approaching the court, on the ground that the court is not able to decide the case expeditiously, is unwarranted, unauthorized and beyond the power and jurisdiction of the court in a civil suit governed by the Code. Such orders are likely to be branded as judicial highhandedness, or worse, judicial vigilantism. 35. We appreciate the anxiety shown by the High Court to discourage land-grabbers, speculators, false claimants and adventurers in real estate from pressurizing hapless and innocent property owners to part with their property against their will, by filing suits which are vexatious, false or frivolous. But we cannot approve the method adopted by the High Court which is wholly outside law. In a suit governed by the Code, no court can, merely because it considers it just and equitable, issue directions which are contrary to or not authorized by law. The courts will do well to keep in mind the warning given by Benjamin N. ....