TaxTMI 
TaxTMI 
2023 (4) TMI 882
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....rts Private Limited, Fairprice Traders (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 see....
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....sent suit is not barred by the prohibition contained 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 me....
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....in the Group as a whole; and since then there has been no inter se partition/division 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 R....
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....Act on the basis that this is a suit against a trustee or his representatives. The pleading in the Plaint 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 ....
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.... question of law and not a mixed question of law and fact by recording evidence. Mr. Khambata would, however, submit that notwithstanding 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 circums....
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.... That, the consent order remains final and binding upon the Appellant. That, in light of Sukhbiri Devi and Others vs. Union of India and Others (supra), the Appellant 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 wo....
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....lant in her Memo of Appeal has stated as under: (a) The question of limitation has to be decided under Order 14 Rule 2 of the CPC and not Section 9A; (b)Limitation 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....
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....smissed as being barred under the Benami Act as well on the basis of Appellant's averments and admissions in the plaint itself. 18. Mr. Khambata would further submit that the Court exercises 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....
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....st for the so-called "Gopal Raheja Group". He submits that the impugned order notes the above at paragraph 27 at pages 64 and 65 of the Appeal. That, Perjury Petition No. 2 of 2014 has been filed by the Respondent No. 1 herein 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. The....
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....the Appellant's properties along with the management and control thereof. That, they have unilaterally created third party rights by availing of loans by mortgaging properties which are subject matter of the suit, and therefore, 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 Counse....
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....as in the subordinate Courts. The Division Bench also recorded that before the Single Judge it was contended that when the said issue is raised for determination, the Court is required to permit the parties to lead evidence. That, before the Single 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 o....
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....to the averments in the plaint and consider any objections which the defendant may choose to raise against the maintainability of the action on those averments. The question of jurisdiction which is raised by way of a demurer has always to be decided on the allegations 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....
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....arned Senior Counsel for the Appellants Firstly very strongly contended that the bar of limitation cannot be regarded as an objection to the jurisdiction of the Court under Section 9A of the Code of Civil Procedure, 1908. i) The term 'jurisdiction' as used in Section 9A of the Code of Civil Procedure, 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.....
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....ellants also sought to demonstrate the distinction between limitation and a complete bar to jurisdiction by citing the provisions in several statutes, including Section 33, Maharashtra Rent Control Act, 1999 and Section 164 of the Maharashtra Co-operative Societies Act, 1960. vii) The learned Senior Counsel submitted that the question of limitation 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? ....
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....ts 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. 20. To put it in other 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....
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.... the Petitioner inasmuch as this issue will have to be decided after granting an opportunity to both the sides. In the circumstances, I am not inclined to interfere with the impugned order in exercise of writ jurisdiction of this Court under Article 227 of the Constitution of India. Hence, writ petition is dismissed." 29.4 This decision was carried to the Hon'ble Supreme Court. The Hon'ble Apex Court considered the 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 Sect....
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....jurisdiction." 13. Section 9A of the Code requires the Court to decide the issue as to jurisdiction before final adjudication on the application for interim relief. The language employed in Section 9A is clear and unambiguous. Section 9A(1) contemplates that when a person makes an objection to jurisdiction of the Court, the Court shall determine such objection on jurisdiction as a preliminary issue before proceeding with the application for interim relief. It further 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. ....
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....id statement reads as under: "... the Bombay City Civil Court for the purposes of granting interim relief cannot or need not go into the question of jurisdiction. Sometimes declaratory suits are filed in the City Court without a valid notice under section 80 of the Code of Civil Procedure, 1908. Relying upon another judgment of the High Court recorded on the 7-9-1961 in Appeal No. 191 of 1960, it has been the practice of the City Court to adjourn a notice of motion for injunction in a suit filed without such valid notice, which gives time to the plaintiff to give the notice. After expiry of the period of notice, the plaintiff is allowed to withdraw the suit with liberty to file a fresh one. In the intervening period, the Court grants an ad interim injunction and continues the same. This practice of granting injunctions without going into the question of jurisdiction even though raised, has led to grave abuse. It is therefore proposed to provide that if a question of jurisdiction is raised at the hearing of any application for granting or setting aside an order granting an interim relief, the Court shall determine that question first." 18. Thus, with the intention ....
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....n Kamlakar Eknath Salunkhe vs. Baburav Vishnu Javalkar 2012 SCC Online Bom 2024 to be contrary to law. As noted above, in Kamlakar Eknath Salunkhe vs. Baburav Vishnu Javalkar (supra), the Hon'ble Supreme Court had held that limitation could be decided under Section 9A. The Hon'ble Apex Court also considered that the Courts would be guided by the provisions of Order XIV Rule 2 or Section 9A of the CPC in the matter of deciding the objection with regard to the jurisdiction of a court which concerns the bar of limitation as a preliminary issue. 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 intent....
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....urt is required to permit the parties to lead evidence. The Division Bench considered the amended provision as contained in Section 9-A vis-a-vis Order 14 Rule 2 of the Code of Civil Procedure and observed (Meher Singh case, SCC Online Bom para 16) :- "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 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 prop....
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....titution Bench and three-Judge Bench of this Court, in Pandurang Dhondi Chougule v. Maruti Hari Jadhav (AIR 1966 SC 153) followed by other Division Benches in Manick Chandra Nandy vs. Debdas Nandy [(1986) 1 SCC 512], NTPC Ltd. v. Siemens Atkeingesellschaft [(2007) 4 SCC 451], Official Trustee vs. Sachindra Nath Chatterjee (AIR 1969 SC 823), ITW Signode India Ltd. vs. CCE, [(2004) 3 SCC 48] and Kamlesh Babu vs. 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 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....
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....mlakar Eknath Salunkhe vs. Baburav Vishnu Javalkar (supra) and overruled Foreshore Co-operative Housing Society Ltd. vs. Praveen D. Desai and Another (supra). Paragraphs 14, 15, 20, 21, 31, 32, 33, 34, 35, 45, 48, 49, 50, 51, 52, 53, 54, 56, 61, 63, 76, 88 and 89 of the decision in the case of Nusli Neville Wadia vs. Ivory Properties (supra) are usefully quoted as under : "14. In Kamalakar Eknath Salunkhe (supra), as to the interpretation of Section 9A, it has been opined that word "jurisdiction" in Section 9A is used in a narrow sense as to maintainability, only on the question of inherent jurisdiction and does not contemplate issues of limitation. The Court has observed: (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 territoria....
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.... preliminary issue under Section 9A as applicable to the State of Maharashtra. This Court in Foreshore Cooperative Housing Society Limited (supra) has observed: (SCC pp. 434-35 & 437, paras 56 & 61-62) "56. With great respect, we are of the view that the decision rendered by the Division Bench in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar, (2015) 7 SCC 321 is contrary to the law settled by the Constitution Bench and three-Judge Benches of this Court, in Pandurang Dhondi Chougule v. Maruti Hari Jadhav (five-Judge Bench), AIR 1966 SC 153 followed by other Division Benches in Manick Chandra Nandy v. Debdas Nandy, (1986) 1 SCC 512, NTPC Ltd. v. Siemens Aktiengesellschaft, (2007) 4 SCC 451, Official Trustee v. Sachindra Nath Chatterjee, AIR 1969 SC 823, ITW Signode India Ltd. v. CCE, (2004) 3 SCC 48 and Kamlesh Babu v. Lajpat Rai Sharma, (2008) 12 SCC 577. The Constitution Bench decision and other decisions given by the larger Bench are binding on us. It appears that those decisions have not been brought to the notice of the Division Bench taking a contrary view. 61. Mr Nariman, learned Senior Counsel appearing for the appellant put heavy reliance on the deci....
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....f judicial proceedings. It does not depend upon the correctness of the decision made. It is the power to decide justiciable controversy and includes questions of law as well as facts on merits. Jurisdiction is the right to hear and determine. It does not depend upon whether a decision is right or wrong. Jurisdiction means power to entertain a suit, consider merits, and render binding decisions, and "merits" means the various elements which enter into or qualify plaintiff's right to the relief sought. If the law confers a power to render a judgment or decree, then the court has jurisdiction. The court must have control over the subject matter, which comes within classification limits of law under which Court is established and functions. 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 cou....
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..... There are various other provisions in which the expression has been used. 32. When we consider provisions in Section 9A, the word jurisdiction is qualified with "to entertain the suit," the expression used is 'jurisdiction to entertain the suit.' The Court has jurisdiction to entertain a suit when it has jurisdiction to receive it for consideration. If at the threshold, the Court cannot consider it, it can be said that the Court has no jurisdiction to entertain the case. It is like a suit is cognizable by Revenue Court, but it is filed in Civil Court, the Court cannot consider it nor can receive it for trial. It is like the jurisdiction to entertain the criminal appeal when the Court is not having inherent jurisdiction to consider the case; it can be said that the Court has no jurisdiction to entertain. When the separate statutory mechanism is provided for the consideration of a particular dispute and jurisdiction of Civil Court is barred, and if it is brought before the Civil Court whose 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 ....
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....that S. 14 of the Limitation Act speaks of the inability of the Court to entertain a suit or proceeding on certain specific grounds, which are of a formal nature and that inability to entertain a suit means not inability to grant relief to the plaintiff but inability to give him a trial at all. In our opinion when a suit is dismissed not because the Court had no jurisdiction to entertain it, or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not one recognised by law as legal in its initiation, then clearly S.14 of the Act is not attracted to such a suit. 8. This view is amply supported by the cases cited by the learned counsel for the appellant and numerous other cases. Now, here, the plaintiff's prior suit was dismissed not because of any defect of jurisdiction or any other ground similar to it, but it was entertained and dismissed because it was wholly misconceived and the relief of rendition of accounts could not be granted against the son of a deceased agent. The suit was dismissed because the proceedings according to the trial Court were not recognised by law as legal in their initiation. If then, S.....
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....ce the expression used in Section 9A a sincorporated in Maharashtra, is "jurisdiction to entertain" that is in a narrower sense and its purport cannot be taken to be comprehensive as laid down in Foreshore Cooperative Housing Society Limited (supra). 50. When we consider what colour expression "jurisdiction" has in Section 9A, it is clearly in the context of power to entertain, jurisdiction takes colour from accompanying word 'entertain'; i.e. the Court should have jurisdiction to receive a case for consideration or to try it. In case there is no jurisdiction, court has no competence to give the relief, but if it has, it cannot give such relief for the reason that claim is time-barred by limitation or is barred by the principle of res judicata or by bar created under any other law for the time being in force. When a case is barred by res judicata or limitation, it is not that the Court has no power to entertain it, but it is not possible to grant the relief. Due to expiry of limitation to file a suit, extinguishment of right to property is provided under Section 27 of the Limitation Act. When Court dismisses a suit on the ground of limitation, right to property is....
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....sues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the Court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order XIV Rule 2. In Order XIV Rule 2(1), the Court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order XIV Rule 2(2) makes a departure and Court may decide the question of law as to jurisdiction of the Court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act. 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 re....
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....ns of the law to permit the parties to adduce the evidence, to prove facts with respect to a preliminary issue of jurisdiction to entertain a suit. In case it is purely a question of law, it can be decided within the purview of section 9A of CPC as applicable in Maharashtra. The scope of Section 9A is not broader than Order 14 Rule 2 (2) of the CPC. The scope is a somewhat limited one. Two full-fledged trials by leading evidence are not contemplated in CPC, one of the preliminary issue and another on other issues. Until and unless the question is pure of the law, it cannot be decided as a preliminary issue. In our opinion, a mixed question of law and fact cannot be decided as a preliminary issue, either under Section 9A or under Order XIV Rule 2 CPC. Before or after its amendment of CPC concerning both provisions, the position is the same. 61. In case facts are admitted, no doubt 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 jurisdict....
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.... having jurisdiction over the subject-matter of the suit and the parties to it, though bound to decide right may decide wrong; and that even though it decided wrong, it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject matter, and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong, and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85 and contended that since the court is bound under the provisions of S.3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that S.3 of the Limitation Act is peremptory and that the court has to take notice of this provision and give effect to it even though the point of l....
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....Section 9A as if the provision under Section 9A has not been deleted, does not change the legal scenario as to what can be decided as a preliminary issue under Section 9A, CPC, as applicable in Maharashtra. The saving created by the provision of Section 2 where consideration of preliminary issue framed under Section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018, can be decided only if it comes within the parameters as found by us on the interpretation of Section 9A. We reiterate that no issue can be decided only under the guise of the provision that it has been framed under Section 9A and was pending consideration on the date of commencement of the (Maharashtra Amendment) Act, 2018. The reference is answered accordingly." (emphasis supplied) 33. We are informed that a Review Petition against Nusli Neville Wadia vs. Ivory Properties (supra) was filed by Mr.Sandeep 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 conc....
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....spect to this transaction. According to one of them, the Deed of Assignment was a sham document and was not intended to take effect while according to the other, it was genuine. Ramlinga Iyer executed a promissory note in favour of one Anantha Iyer. After the death of Ramlinga Iyer, Anantha Iyer instituted a suit against Ramlinga Iyer's son Sankara Subha Iyer for recovery of the amount and obtained a decree on 13-11-1088. Treating the Deed of Assignment executed by Ramlinga Iyer in favour of Sankara Subha Iyer as a sham document, Anantha Iyer attached the mortgagee rights of Ramlinga Iyer in hypothecation bond which had been executed in his favour by Ittiyavira. The rights under this bond were sold in execution and were purchased by Anantha Iyer at Court auction. In a subsequent partition in Anantha Iyer's family, the right under the hypothecation bond purchased in execution by him were allotted to his share and that of his brother Manicka 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 ....
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....ecree in O. S. No. 462 of 1094 were benami for Ittiyavira. For this reason, it was contended that defendant No. 2 acquired no rights to items 3, 5, 14 and 18 in the plaint. The appellant disputed the validity of the decree and of the execution proceedings in O. S. No. 497 of 1088 and contended that the decree was obtained and the execution proceedings taken out, fraudulently against Ramalinga Iyer's heirs inasmuch as Ramalinga Iyer had assigned the hypothecation bond in favour of Sankara Rama Iyer on 3-10-1082. The plea of the appellant thus was that Anantha Iyer did not obtain any rights to the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer, and consequently, Venkiteswara Iyer obtained no rights under his purchase in execution of the decree in O. S. No. 59 of 1093. The entire proceedings were characterised as fraudulent and not binding on Ittiyavira and the suit properties. The allegation that the alleged sale 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 ex....
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....lle Wadia vs. Ivory Properties (supra) , has observed in Paragraph No. 76 as under : 76. In Ittyavira Mathia v. Varkey Varkey 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 the four-Judge Bench of this Court. The Court has observed that decree passed in the suit barred by time cannot be said to be a nullity as the court passing the same has the jurisdiction over the party and the subject-matter. A wrong decision is not the one for which the court had no jurisdiction. It had jurisdiction over the subject matter, over the parties and therefore, an error of decision would not make a decree beyond jurisdiction. Section 3 of the Limitation Act also came up for consideration, which would be a simple error of law. In the said case, jurisdictional issue has been wrongly decided as to limitation. The decision of the Privy council in Maqbul Ahmad 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 o....
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.... two questions, one whether the Suit as filed is barred under the Benami Act and by limitation. The learned Single Judge has himself observed in Paragraphs 2, 13, 15, 24, 28, 29, 30 of impugned order that the issues of limitation and benami property were mixed questions of fact and law requiring evidence. 38. Respondents No. 1-4's written submissions at Page 97 of the Appeal Memo (paragraphs 13 to 27, 28, 29, 34, 38) also admit and demonstrate that the questions of limitation and benami property are disputed questions and require evidence. 39. The bar of Benami under Benami Act requires examination of factual aspects including the exceptions to Section 2(9) and 4(3). The question whether a transaction is Benami or not is therefore one of fact requiring evidence. Paragraphs 6 and 7 in the case of Jaydalal Poddar vs. Bibi Hazra 1974 1 SCC 3 support this view and are quoted as under : "6. It is well settled that the burden of proving that a particular sale is benami 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 ei....
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....bt in holding that, in the facts of this case, limitation and benami transactions are not covered within the ambit of "jurisdiction of the Court to entertain" under Section 9A of the CPC and cannot be decided as preliminary issues under Section 9A of the CPC. Section 9A only deals with issues of whether the Court does or does not have jurisdiction to entertain a suit. 42. There can be no doubt that the law laid down in Nusli Neville Wadia vs. Ivory Properties (supra) was always the law (i.e. even at the time when the impugned order dated 11 September 2015 was passed) and we agree with the Counsel for the Appellant that the entire matter, therefore, is required to be looked at through the lens of the 3-Judge Judgment in Nusli Neville Wadia vs. Ivory Properties (supra). 43. The impugned order is therefore a nullity as where consideration of a preliminary issue under Section 9A is pending, it can be decided only if it comes within the parameters laid down in Nusli Neville Wadia vs. Ivory Properties (supra). Hence, clearly, 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 Nus....
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.... Lordships the question of limitation could not have been decided as a preliminary issue under Order XIV, Rule 2 of CPC as determination of the issue of limitation in that case was not a pure question of law. In the said contextual situation it is worthy and appropriate to refer to paragraphs 51, in so far as it is relevant, and 52 of the decision in Nusli Neville Wadia's case and they read thus:- "51.[...] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and is the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment 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 ....
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....of the CPC. Though, limitation is a mixed question of law and facts it will shed the said character and would get confined to one of question of law when the foundational fact(s), determining the starting point of limitation is vividly and specifically made in the plaint averments. In such a circumstance, if the Court concerned is of the opinion that limitation could be framed as a preliminary point and it warrants postponement of settlement of other issues till determination of that issue, it may frame the same as a preliminary issue and may deal with the suit only in accordance with the decision on that issue. It cannot be said that such an approach is impermissible in law and in fact, it is perfectly permissible under Order XIV, Rule 2(2)(b), CPC and legal in such circumstances. In short, in view of the decisions and the provisions, referred above, it is clear that the issue limitation can be framed and determined as a preliminary issue under Order XIV, Rule 2(2)(b), CPC in a case where it can be decided on admitted facts." 46. In our view, therefore, the reliance by the Respondents on the decision in the case of Sukhbiri Devi (supra) does not lend assistance to the case of t....
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....s to be construed with reference to the surrounding or attending circumstances at that time. In this context the decision of the Apex Court in the case of Parayya Allayya Hittalamani vs. Sri Parayya Gurulingayya Poojari 2007 14 SCC 318 is relevant. Paragraphs 14 to 18 of the said decision are usefully quoted as under : "14. A consent decree, as is well known, is a contract between the parties with the seal of the Court super added to it. [See Baldevdas Shivlal v. Filmistan Distributors (India) (P) Ltd. and Hindustan Motors Ltd. vs. Amritpal Singh Nayar.] 15. We are, however, not oblivious of the fact that such consent decree may operate as an estoppel. [See Sailendra Narayan Bhanja Deo. v. State of Orissa]. 16. It is equally well settled that which construing a decree, the court can and in appropriate case ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree, the Court has to ascertain the circumstances under which these words came to be used. (See Bhavan Vaja v. Solanki Hanuji Khodaji Mansang). 17. It is now also a trite law that in ....
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....ville Wadia vs. Ivory Properties (supra) was always the law and the Appeal/ impugned order will have to be tested on that basis. 56. Further, though Mr. Khambata has contended that preliminary issues can be decided by a court on admitted facts without evidence, and that admissions in pleadings or judicial admissions stand on a higher footing than evidentiary submissions and are the best proof of the facts admitted, learned senior counsel has failed to appreciate that in the decision in the case of Nusli Neville Wadia vs. Ivory Properties (supra), the Apex Court has clearly observed that for a preliminary issue to be decided under section 9A, it only be a pure question of law concerning inherent jurisdiction of the court to entertain the suit but not a question of limitation or benami being a mixed question of law and fact particularly in the face of the clear finding by the learned Single Judge that evidence would be required to be led to decide the issues raised. 57. In view of the above discussion, the Respondents' reliance on the decision in the case of Chopda Automobiles Finance, Hyderabad vs. Sheikh Shabbir Sheikh Noor (supra), is therefore irrelevant as there was no que....
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.... from taking an inconsistent plea. In the light of what we have observed above and the decision in the case of Nusli Wadia this is not a case of approbation or reprobation. The Respondents have also relied upon the decision in the case of Chittoori Subbanna vs. Kudappa Sabanna and Ors. (supra). Paragraph 55 was relied upon to submit that once a party abstains from raising an objection it could have raised in a suit, it was not open to raise the said objection in a Appeal. That, the Appellant ought not to be allowed to resile from the position she consented to in the suit viz. to frame the issues of limitation and benami act as well as not to lead evidence in respect of the said issues. Firstly, in our view, paragraph 55 is the minority view and as far as paragraph 11 is concerned that does not assist the case of the Respondents, in view of what we have observed as above. 62. With respect to the decision in the case of Mumbai International Airport Pvt. Ltd. vs. Golden Chariot Airport & Anr. (supra) relied upon by the Respondents, we are of the view that in light of the decision of the Apex Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra) the Court is mandator....
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....Hon'ble Supreme Court in the case of Pawan Kumar vs. Babulal (supra) becomes relevant. Paragraph 13 is quoted as under : "13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject-matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property vs. S BI Staff Association : (SCC p. 515, para 10) "10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears....
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.... not succeeding in the case. 27. We will next examine whether the power to make such an order can be traced to Section 151 of the Code, which reads: "151. Saving of inherent powers of court. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court." 28. As the provisions of the Code are not exhaustive, Section 151 is intended to apply where the Code does not cover any particular procedural aspect, and interests of justice require the exercise of power to cover a particular situation. Section 151 is not a provision of law conferring power to grant any kind of substantive relief. It is a procedural provision saving the inherent power of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court. It cannot be invoked with reference to a matter which is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code. It cannot be used either to create or recognize rights, or to create....
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..... In other words the court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code...." 33. A suit or proceeding initiated in accordance with law, cannot be considered as an abuse of the process of court, only on the ground that such suit or proceeding is likely to cause hardship or is likely to be rejected ultimately. As there are specific provisions in the Code, relating to costs, security for costs and damages, the court cannot invoke Section 151 on the ground that the same is necessary for the ends of justice. Therefore, we are of the view that a court trying a civil suit, cannot, in exercise of inherent power under Section 151 of the Code, make an interim order directing the plaintiff to file an undertaking that he will pay a sum directed by the court to the defendant as damages in case he fails in the suit. 34. The direction to the plaintiff to furnish an undertaking to pay Rs.25 lakhs to the defendants in the event of losing the case, is an order in terrorem. It is made not because the plaintiff committed any default, nor because he tried to delay the proceedings, nor because he filed ....