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TMI Blog2019 (10) TMI 1314X X X X Extracts X X X X X X X X Extracts X X X X ..... lour from the context in which it has been used. The existence of jurisdiction is reflected by the fact of amenability of the judgment to attack in the collateral proceedings. If the court has an inherent lack of jurisdiction, its decision is open to attack as a nullity. While deciding the issues of the bar created by the law of limitation, res judicata, the Court must have jurisdiction to decide these issues. Under the provisions of Section 9A and Order XIV Rule 2, it is open to decide preliminary issues if it is purely a question of law not a mixed question of law and fact by recording evidence. The decision in Foreshore Cooperative Housing Society Limited [ 2015 (4) TMI 1230 - SUPREME COURT ] cannot be said to be laying down the law correctly. We have considered the decisions referred to therein, they are in different contexts. The decision of the Full Bench of the High Court of Bombay in Meher Singh [ 1999 (9) TMI 978 - BOMBAY HIGH COURT ] holding that Under Section 9A the issue to try a suit/jurisdiction can be decided by recording evidence if required and by proper adjudication, is overruled. We hold that the decision in Kamlakar Shantaram [ 1975 (8) TMI 124 - SUPREME COURT ] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h to include the issue of limitation as the expression has been used in the broader sense and is not restricted to conventional definition under pecuniary or territorial jurisdiction, the decision in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors., (2015) 7 SCC 321, taking contrary view, is per incuriam in view of the larger Bench decision in Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors, AIR 1966 SC 153 as well as other larger Bench decisions. 2. In Kamalakar Eknath Salunkhe (supra) this Court has opined that issue of limitation cannot be decided as a preliminary issue of jurisdiction Under Section 9, Reference has been made because of divergence in views. 3. The question arises for consideration as to the interpretation of expression 'jurisdiction of the Court to entertain such suit' used in Section 9A of Code of Civil Procedure. Section 9A had been introduced initially by the Code of Civil Procedure (Maharashtra Amendment) Act, 1970 and after that reintroduced with slightly modified terms by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977. After its repeal it had been re-enacted with effect from 19.12.1977. It was felt neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of jurisdiction has led to grave abuse of the provisions of law. Thus, it was proposed that in case question of jurisdiction is raised at the hearing of any applications for granting or setting aside an order granting interim relief, the Court shall determine that question first. The provisions of Section 9A, as initially introduced in 1970, are extracted hereunder: 9A. (1) If, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not, in any case, be adjourned to the hearing of the suit. (2) Notwithstanding anything contained in Sub-section (1), at the hearing of any such application, the Court may grant such interim relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the commencement of that Act shall except in so far as they are consistent with the Code as amended by the Amendment Act, stand repealed. Unless there is an authoritative judicial pronouncement, it is difficult to say which of the State Amendments are inconsistent with the Code as amended by the Central Amendment Act of 1976 and which consequently stand repealed. All the amendments made in the Code by the State Acts, except the amendment made in the proviso to Section 60(1) by the State Act of 1948, are useful and are required to be continued. The amendment made by the State Act of 1948 is no more required because it is now covered by the amendment made in Clause (g) of the said proviso by the Central Amendment Act of 1976. But to leave no room for any doubt whether the remaining State amendments continue to be in force or stand repealed, it is proposed that the old amendments should be repealed formally and in their places similar amendments may be re-enacted, with the assent of the President Under Article 254(2) of the Constitution, so that they may continue to prevail and be available in this State as before. The Bill is intended to achieve these objects. 3. The following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r setting aside interim injunction or for appointment of a receiver or otherwise, to deal with the objection as to jurisdiction of the Court to entertain such suit , as preliminary issue and it shall not adjourn the matter to the hearing of the suit. Pending determination of the preliminary issue as to jurisdiction, the Court is competent as per Section 9A(2) to grant interim relief as it may consider necessary. 6. The State of Maharashtra on 27.06.2018 by the promulgation of Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018 has deleted Section 9-A of the Code (in its application to the State of Maharashtra). Section 3 of the Ordinance provided as under: 3. Notwithstanding the deletion of Section 9A of the principal Act, - (1) Where consideration of a preliminary issue framed Under Section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018 (hereinafter, in this section, referred to as the Amendment Ordinance ), the said issue shall be deemed to be an issue framed Under Order XIV of the principal Act and shall be decided by the Court, as it deems fit, along with all other issues, at the time of final disposa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue of law. 9. The amendment in 1976 in Code of Civil Procedure came into force on 1.2.1977. The amended Rule 2 of Order XIV is extracted hereunder: 2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. A significant departure has been made in the amended provisions contained in Order XIV Rule 2. Now it mandates the Court to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue. The intendment is to avoid remand in the appealable case for decidin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d does not contemplate issues of limitation. Section 9-A has been inserted in the Code to prevent the abuse of court process where a Plaintiff drags a Defendant to the trial of the suit on merits when the jurisdiction of the court itself is doubtful. 21. In the instant case, the preliminary issue framed by the trial court is about the question of limitation. Such issue would not be an issue on the jurisdiction of the court and, therefore, in our considered opinion, the trial court was not justified in framing the issue of limitation as a preliminary issue by invoking its power Under Section 9-A of the Code. The High Court has erred in not considering the statutory ambit of Section 9-A while approving the preliminary issue framed by the trial court and thus, rejecting the writ petition filed by the Appellant. 11. Where in the recent decision of Foreshore Cooperative Housing Society Limited (supra), it has been held that decision in Kamalakar Eknath Salunkhe (supra) is contrary to the law. The word jurisdiction in Section 9A is used in a broader sense. It has also been held that Section 9A is mandatory and a complete departure from the provisions of Order XIV Rule 2. The question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obstante Clause which mandates the court to follow the provision. It is a complete departure from the provisions contained in Order 14 Rule 2 Code of Civil Procedure. In other words, the non-obstante Clause inserted by the Maharashtra Amendment Act of 1977 in Section 9-A and the express mandate of the section, the law intends to decide the issue relating to the jurisdiction of the court as a preliminary issue notwithstanding the provision contained in Order 14 Rule 2 Code of Civil Procedure. However, it is made clear that in other cases where the suits are governed by the provisions of Order 14 Rule 2 Code of Civil Procedure, it is the discretion of the court to decide the issue based on the law as a preliminary issue. It has also been observed that where the suits are governed by the provisions of Order XIV Rule 2, it is the discretion of the Court to decide the issue based on the law as a preliminary issue. SUBMISSIONS 12. It has been submitted by Shri F.S. Nariman, learned senior Counsel appearing on behalf of the Petitioner that decision in Foreshore Cooperative Housing Society Limited (supra) cannot be said to be laying down the law correctly. The Code of Civil Procedure confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the settlement of the issues. Under Order XII, parties can give notice for admitting the documents. Under Order XII Rule 6, even a judgment can be given on admitted facts. These are the stages before framing the issue Under Order XIV. 14. Consequently, Under Order XIV Rule 2(2), the Court while trying issues would be entitled to look into the admitted facts in any case. Under Order XIV Rule 4, the Court can examine a witness and documents before framing issues. Therefore, there is no good reason to prevent the Court from deciding issues of limitation based on documents produced, especially if they are admitted documents. 15. It is further submitted on behalf of Respondents that the expression jurisdiction used in Section 9A need not be qualified by the word inherent, that would amount to re-writing the Statute and would be against the contextual meaning to be given to Section 9A. The object for introducing the provision was not limited to objections about inherent jurisdiction, but to cover bar created by the statute and Section 80 is an illustration. Thus, the expression 'barred under any law for the time being in force' used in Order XIV Rule 2(2)(b) is covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the ground of nullity. It has co-relation with the constitutional and statutory power of tribunal or court to hear and determine. It means the power or capacity fundamentally to entertain, hear, and determine. 18. Jurisdiction to entertain is distinguish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it is wrong. In Malkarjun Bin Shidramappa v. Narahari Bin Shivappa, (1900) 27 IA 216 the executing court had, quite wrongly, held that a particular person represented the estate of the deceased judgment-debtor and put the property for sale in execution. The Judicial Committee said: In so doing the court was exercising its jurisdiction. It made a sad mistake, it is true, but a court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed. 23. In Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, (1972) 2 SCC 692, the word jurisdiction has been interpreted in the context of Section 125 of the Army Act to signify the original jurisdiction to take cognizance of a case. Following is the observation: 11. Section 125 of the Army Act provides that when a criminal court and a Court-Martial have each jurisdiction in respect of an offence, it shall be in the discretion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it is determinable at the commencement, not at the conclusion, of the inquiry'. (Rex v. Bolten [1841] I Q.B. 66. Thus, a tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by determining any of those questions incorrectly, but it has no jurisdiction to entertain a claim for reinstatement or damages for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters...... (Halsbury's Laws of England, 3rd Edn. Vol. 11 page 59). The characteristic attribute of judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts stricto sensu but also the findings of administrative bodies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court or a bar to the suit created by any law for the time being in force. Order XXIII Rule 3-A provides that no suit shall lie to set aside a compromise decree. There are various other provisions in which the expression has been used. IN RE: ENTERTAIN THE SUIT 28. When we consider provisions 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 who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Court does not decide it on its merits. The learned Judge further observed that Section 14 of the Limitation Act speaks of the inability of the Court to entertain a suit or proceeding on certain specific grounds, which are of a formal nature and that 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 Section 14 of the Act is not attracted to such a suit. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider on merits.' This view of the High Court has been accepted as correct by this Court in Lakshmiratan Engineering Works Ltd. v. Asst. Comm., Sales Tax, Kanpur, AIR 1968 SC 488. We are bound by that decision, and as such, we are unable to accept the contention of the Appellant that Clause (b) of the proviso did not apply to the present proceedings. The word 'entertain' came up for consideration in Hindusthan Commercial Bank Ltd. (supra) in the context of Order XXI Rule 90 as amended by the Allahabad High Court. The expression entertain has been held to mean to adjudicate upon or proceed to consider on merits. IN RE: DIFFERENCE BETWEEN EXISTENCE AND EXERCISE OF JURISDICTION 33. There is a difference between the existence of jurisdiction and the exercise of jurisdiction. In case jurisdiction is exercised with material irregularity or with illegality, it would also constitute jurisdictional error. However, if a court has jurisdiction to entertain a suit but in exercise of jurisdiction, a mistake has been committed, though it would be a jurisdictional error but not lack of it. It may be a jurisdictional error open for interference in appellate or revisional jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to examine on merits. Adjudication is the power to proceed to consider on merits. 37. In Bhai Jai Kishen Singh v. Peoples Bank of Northern India (in liquidation) through Bhagwati Shankar, Official Liquidator, AIR 1944 Lah 136, it has been observed that jurisdiction issue is one like preliminary issue not where the proceedings were dismissed on merits. In Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors., (1974) 3 SCC 415 in the context of word jurisdiction, this Court observed thus: 28. We think that neither the decision of this Court in Baidyanath Panjiar v. Sita Ram Mahto, (1969) 2 SCC 447 which took the view that violation of Section 23(3) of the 1950 Act in entering or deleting the names of persons in the electoral rolls after the last date for making nomination relates to lack of power, nor the decision in Wopanso v. N.L. Oduya, (1971) 2 SCC 550 and others which also suggests that where there was lack of power, the question can be gone into by the Court trying an election petition, can, by analogy, be extended to an entry in the electoral roll on the basis of a wrong adjudication of the question of ordinary residence. Though the dividing line between lack of jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular statute have not been complied with, or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word jurisdiction has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter, it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction. (emphasis supplied) 39. Again, in Official Trustee, West Bengal v. Sachindra Nath Chatterjee, AIR 1969 SC 823, it has been observed that before a court can be held to have the jurisdiction to decide a particular matter, it must not only have the jurisdiction to try the suit brought but must also have the authority to pass the order sought from it. It should have the power to hear and decide the issue. The Court observed: 12. It is plain that if the learned judge had no jurisdiction to pass the order in question then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d amount to a refusal to exercise jurisdiction. The Court held that declining to go into the merits of a claim in a particular case may amount to a refusal to exercise jurisdiction. What is jurisdictional question and jurisdiction was also considered by this Court. The question of limitation involving the question of jurisdiction of the Court or Tribunal came up for consideration, as a preliminary objection was raised as to maintainability of the appeal. The relevant portion of discussion is extracted hereunder: 17. In the larger sense, any refusal to go into the merits of a claim may be in the realm of jurisdiction. Even the dismissal of the claim as barred by limitation may, in a sense touch on the jurisdiction of the court or tribunal. When a claim is dismissed on the ground of it being barred by limitation, it will be, in a sense, a case of the court or tribunal refusing to exercise jurisdiction to go into the merits of the claim. In Pandurang Dhoni Chougule v. Maruti Hari Jadhav AIR 1966 SC 153, this Court observed that: (AIR p. 155, para 10) It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, they did not exercise their jurisdiction illegally or with material irregularity. In Balakrishna Udayar v. Vasudeva Aiyar, (1917) LR 44 IA 261, 267 the Board observed: It will be observed that the Section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The Section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. In N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, (1948-49) LR 76 IA 73, the Judicial Committee said that Section 115 empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied on those three matters, it has no power to interfere because it differs from the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect. Any of these things would cause its purported decision to be a nullity. The dicta of the majority of the House of Lords in the above case would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of jurisdiction. The effect of the dicta, in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as basing their decision on a matter with which they have no right to deal, imposing an unwarranted condition or addressing themselves to a wrong question. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in force. 44. Since the expression used in Section 9A as incorporated 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). 45. 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 prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IV 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 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. 47. In a case question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue Under Order XIV Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made Under Order XIV Rule 2(2) as a preliminary issue or any other such issue of law wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limitation Act, every suit instituted, appeal preferred, and the application made after the prescribed period shall be dismissed, it nowhere provides that Court has no jurisdiction to deal with the matter. Until and unless Court has the jurisdiction, it cannot proceed to dismiss it on the ground of limitation Under Section 3. 51. Within the ken of provisions of Section 9A, Code of Civil Procedure jurisdiction of the Court to entertain the suit has to be decided without recording of evidence. Recording of evidence is not contemplated even at the stage of framing issue Under Order XIV Rule 2 much less it can be allowed at the stage of grant of injunction, it would be the grossest misuse of the provisions 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 Code of Civil Procedure as applicable in Maharashtra. The scope of Section 9A is not broader than Order XIV Rule 2 (2) of the Code of Civil Procedure. The scope is a somewhat limited one. Two full-fledged trials by leading evidence are not contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration. Where facts are admitted, suit can be disposed of on preliminary issue and no particular procedure need be followed by the Court. It has been held that in particular, if facts are admitted, the issue of res judicata and constructive res judicata and also maintainability of the suit should be decided as a preliminary issue. Following observation is relevant: 21. For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order 14 Rule 1 of the Code of Civil Procedure, a civil court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and/or constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues. (emphasis supplied) In case facts are admitted, no doubt about it that Under Order XIV Rule 2, a suit can be decided even as to the question of res judicata, constructive res judicata, and maintainability. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity, and in all cases where issues are settled, on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both these conditions have to be satisfied. 14. The learned Counsel appearing on behalf of the Respondents has submitted that the objection as to the lack of territorial jurisdiction was raised in the written statement before the trial court. But evidently, the suit was decreed ex parte after the Respondents failed to participate in the proceedings. The provisions of Section 21(1) contain a clear legislative mandate that an objection of this nature has to be raised at the earliest possible opportunity before issues are settled. Moreover, no such objection can be allowed to be raised even by an appellate or revisional jurisdiction, unless both sets of conditions are fulfilled. It is in the context of the inherent lack of jurisdiction to entertain the suit, the expression has been used in Section 9A. IN RE: MIXED QUESTION OF LAW AND FACT AND ORDER VII RULE 11 CODE OF CIVIL PROCEDURE. 57. A Three-Judge Bench of this Court in Major S.S. Khanna v. Brig. F.J. Dhillon, AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestment Ltd. v. Turus Shipping Service and Ors., AIR 2007 Guj 23; Chandrama Singh v. (D) through LRs v. Ram Kishore Agrawal and Ors., 2016 SCC OnLine Chh 1740, Naresh Chandra Gautam v. Chhote Khan , Ramagya Tiwari v. Shib Kumar Sah and Ors., 2018 SCC OnLine Jah 578, Lalchand Sha and Ors. v. Kalabati Devi and Ors., (2008) 2 Gau LR 561 and J Mnthamma and Anr. v. Bayya Iiglamma and Ors. 61. In Vaish Aggarwal Panchayat v. Inder Kumar and Ors., AIR 2015 SC 3357, the question came up for consideration of rejection of the plaint Under Order VII Rule 11 on the ground that same being barred by limitation. Mere ex facie reading of the plaint, it could not be held that the suit was barred by time. The question of limitation becomes a mixed question of facts and law and cannot be decided as a preliminary issue as the framing of issues and taking evidence was necessary. 62. In our opinion, it cannot be laid down as proposition of law Under Order VII Rule 11(d) that plaint cannot be rejected as barred by limitation. It can be said that it is permissible to do so mainly in a case where the plaint averment itself indicate the cause of action to be barred by limitation and no further evidence is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 and it was held as under (SCR p. 421) Under Order 14 Rule 2, Code of Civil Procedure where issues both of law and fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003. Even from the averments in the plaint, it appears that during these 22 years i.e., the period from 1981 till 2001/2003, the suit property was mortgaged by the Appellant herein-original Defendant and the mortgage deed was executed by the Defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the Plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (AIR 1977 SC 2421) (supra) and Ors., as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers Under Order 7 Rule 11 of the Code of Civil Procedure. 65. (b) In N.V. Srinivasa Murthy and Ors. v. Mariyamma (Dead) by proposed LRs. and Ors., (2005) 5 SCC 548, this Court observed as under: 16. The High Court does not seem to be right in rejecting the plaint on the ground that it does not disclose any cause of action. In our view, the trial court was right in coming to the conclusion that accepting all averments in the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CISION IN FORESHORE COOPERATIVE HOUSING SOCIETY LIMITED 66. Now we consider decision relied on Foreshore Cooperative Housing Society Limited (supra) in which decision of the Court in Pandurang Dhondi Chougule (supra) and other decisions have been relied on. 67. In Pandurang Dhondi Chougule (supra), a decision of Constitution Bench of this Court, the question of jurisdiction came up for consideration in the context of provisions contained in Section 115 of Code of Civil Procedure to the extent of revisional powers of the High Court as to what would constitute an error of question of law. The Court has observed thus: 10. Judicial decisions have examined the provisions of Section 115 of the Code on several occasions. While exercising its jurisdiction Under Section 115, it is not competent to the High Court to correct errors of fact however gross they maybe, or even errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself. As Cls. (a), (b) and (e) of Section 115 indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of a wrong decision in the course of the exercise of jurisdiction is another colour in which jurisdictional error has been gauged in Pandurang Dhondi Chougule (supra). It was not a case of want of the existence of jurisdiction to decide the issue. The question of limitation and res judicata, are to be decided within the realm of exercise of jurisdiction following the law. The finding on the pleas mentioned above may oust the jurisdiction of the Court to pass a decree as other laws bar it. Thus, these pleas can be termed as concerning with the question of jurisdiction, in the exercise thereof they have to be decided. The decision renders no help to espousing the cause of the Respondents. In Foreshore Cooperative Housing Society Limited (supra) the court has wrongly applied a different colour of jurisdiction used Under Section 115 Code of Civil Procedure which was dealt with in Pandurang Dhondi Chougule case (supra). It is a mismatch and does not merge with the context of provisions of Section 9A Code of Civil Procedure. 68. 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 jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat since the court is bound under the provisions of Section 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 Section 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. 69. The Respondents have relied upon the decision in Manick Chandra Nandy v. Debdas Nandy and Ors., (1986) 1 SCC 512, in which again question of exercise of revisional jurisdiction of the High Court Under Section 115 of Code of Civil Procedure arose. This Court pointed out the difference betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subordinate court. In the instant case, the Respondents had raised a plea that the Appellant's application Under Rule 13 of Order IX was barred by limitation. Now, a plea of limitation concerns the jurisdiction of the court which tries a proceeding, for a finding on this plea in favour of the party raising it would oust the jurisdiction of the court. In determining the correctness of the decision reached by the subordinate court on such a plea, the High Court may at times have to go into a jurisdictional question of law or fact, that is, it may have to decide collateral questions upon the ascertainment of which the decision as to jurisdiction depends. For the purpose of ascertaining whether the subordinate court has decided such a collateral question rightly, the High Court cannot, however, function as a court of first appeal so far as the assessment of evidence is concerned and substitute its own findings for those arrived at by the subordinate court unless any such finding is not in any way borne out by the evidence on the record or is manifestly contrary to evidence or so palpably wrong that if allowed to stand, would result in grave injustice to a party. The word jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction will be a nullity. The expression nullity used by Division Bench in Kamlesh Babu (supra) cannot be said to be in the context of the limitation, but the question of jurisdiction when the Court has no power to try the suit. In our opinion, a wrong decision on the question of limitation will not render judgment a nullity. With great respect we observe that the expression used by this Court in para 23 that wrong decision on the question of limitation would render a judgment of the Court having jurisdiction to decide the issue as a nullity is ex facie incorrect. It may be a case of illegal exercise of jurisdiction to decide the issue, but judgment would not be a nullity. 72. The decision in Indian Farmers Fertilizer Cooperative Limited v. Bhadra Products, (2018) 2 SCC 534, has been referred by Respondents in which the question came up for consideration as to the issue of the decision on limitation. This Court has observed that wrong decision on the question of limitation or res judicata would oust the jurisdiction of the Court. The scope of jurisdiction Under Section 16 of the Arbitration and Conciliation Act, 1996 has been explained. In our opinion, the issue of res judicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion wrongly, it cannot be said that Court had no jurisdiction to do so and erroneous decision on question of jurisdiction or res judicata would not oust the jurisdiction of the Court and render the decision a nullity liable to collateral attack. 74. The decisions of Bombay High Court have also been relied upon by the learned senior Counsel appearing for the Respondents. In Smithkline Beecham Consumer Healthcare (supra), the Court has observed that legislature has used the word in Section 9A in the broader sense and the Court is required to consider the bar to the maintainability of the suit Under Section 9A of Code of Civil Procedure. The High Court held that it has a broader meaning where a statute bars the suit. In our opinion, the decision cannot be said to be laying down the law correctly and as such same is overruled. Reliance has also been placed on Sudesh v. Abdul Aziz, 2001 (1) Mh.L.J. 324, in which the High Court has observed that the law has been laid down that any question of limitation based upon the issue of jurisdiction has to be decided as a preliminary issue. The view taken by the Court that since it is a mixed question of law and facts, could not be decided at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Constitution Bench of this Court that, if there is any hardship, it is for the legislature to amend the law, and that the court cannot be called upon to discard the cardinal Rule of interpretation for the purpose of mitigating such hardship. If the language of an Act is sufficiently clear, the court has to give effect to it, however inequitable or unjust the result may be. The words, dura lex sed lex, which mean the law is hard, but it is the law may be used, to sum up, the situation. Therefore, even if a statutory provision causes hardship to some people, it is not for the court to amend the law. A legal enactment must be interpreted in its plain and literal sense, as that is the first principle of interpretation. 25. In Mysore SEB v. Bangalore Woollen Cotton Silk Mills Ltd. AIR 1963 SC 1128 (AIR p. 1139, para 27) a Constitution Bench of this Court held that inconvenience is not a decisive factor to be considered while interpreting a statute. In Martin Burn Ltd. v. Corporation of Calcutta AIR 1966 SC 529, this Court, while dealing with the same issue observed as under (AIR p. 535, para 14) 14. ... A result flowing from a statutory provision is never an evil. A court has no power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r language of the enactment in order to avoid any real or imaginary hardship which such literal interpretation may cause. 29. In view of the above it becomes crystal clear that under the garb of interpreting the provision, the court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation. Further, reliance has been placed on Nalinakhya Bysack v. Shyam Sundar Haldar, AIR 1953 SC 148. Following is the relevant observation made: (9)...It must always be borne in mind, as said by Lord Halsbury in Commissioner for Special Purposes of Income Tax v. Pemsel, (1891) A.C. 531 (G) that it is not competent to any court to proceed upon the assumption that the legislature has made a mistake. The Court must proceed on the footing that the legislature intended what it has said. Even if there is some defect in the phraseology used by the legislature, the court cannot, as pointed out in Crawford v. Spooner, 6 MOO. P.C. 1 (H) aid the legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is, as said by Lord Russell of Kil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Under Section 9A the issue to try a suit/jurisdiction can be decided by recording evidence if required and by proper adjudication, is overruled. We hold that the decision in Kamlakar Shantaram (supra) has been correctly decided and cannot be said to be per incuriam, as held in Foreshore Cooperative Housing Society Limited (supra). 77. (b) Section 2 of Maharashtra Second Amendment Act, 2018 which provides that where consideration of preliminary issue framed Under Section 9A is pending on the date of commencement of the Code of Civil Procedure, the said issue shall be decided and disposed of by the court Under 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, Code of Civil Procedure, 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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