9911796707
TMI Blog2008 (10) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... 1958, the Golwalas, who were the original lessees of the suit property, entered into an agreement with Respondent No. 1 ,under which he was granted right of development of a portion of the suit property. These development rights were transferred in favour of his company, ie, Respondent No. 2. Pursuant to the power of attorney executed in favour of Respondent No. 1 by the Golwalas, Respondent No. 1 and/or 2 completed the construction of the building 'Advent' and sold flats therein to various persons on ownership basis. In 1966, the flat purchasers formed a co-operative society registered in the name of Foreshore Co-operative Housing Society Ltd., the Appellants in the present case. ii) Following this, an I.O.D. and commencement certificate for 'Divya Prabha' were granted by Respondent No. 7 to Respondent No. 1. The R.C.C. framework was constructed till 1968 by Respondent No. 1 and 2. On 10.4.1968, notices were issued by Respondent No. 7 to stop work and to remove the unauthorized 10th floor slab and other irregularities. These notices were challenged by the Respondent No. 1 in Suit No. 6551 of 1968. The aforesaid suit was returned for presentation to the proper c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut communicating any permission granted, and in breach of the aforesaid order, Respondent No. 8 entered onto the suit property forcibly and purported to carry out construction works in respect of 'Divya Prabha'. The Appellants filed Civil Suit No. 9957/1998 in this Court for injunction and for disclosure of any permission, if any, as per the aforesaid order. Revalidation certificates dated 28.9.1998 and 5.10.1998 were handed over by the Respondents. On 12.11.1998, an injunction order was granted by this Court in the abovementioned application for a period of six weeks from the date of the said order. v) The Appellants took out a Chamber Summons No. 1531 of 1998 in the City Civil Court for amendment of their plaint inter alia to challenge the alleged revalidation permission dated 18.9.1998 and 5.10.1998. The Appellants also took out a Notice of Motion No. 1285 of 1999 inter alia praying for an injunction restraining Respondent Nos. 1-6 and Respondent No. 8, from carrying out of construction in respect of shell structure 'Divya Prabha'. This notice of motion was granted. On 17.03.1999, when the suit was on board for final hearing, the Respondent Nos. 1 and 2 took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing for the exclusion of time under Section 14 of the Limitation Act, 1963. The Learned Single Judge had erroneously held that the Appellants were required to plead and prove that the previous suit filed by the Appellants in the Bombay City Civil Court in November, 1999 was instituted in good faith, to seek the benefit under Section 14 of the Limitation Act. 3. Mr. Doctor, the learned Senior Counsel submitted that Section 9A of the Code of Civil Procedure, pursuant to which the application made by Respondent No. 8 was decided by the Learned Single Judge, has been repealed by Section 32, CPC (Amendment) Act, 1999 and Section 16, CPC (Amendment) Act, 2002. These amendments repeal any provisions of the Code of Civil Procedure, added by the State Legislatures or the High Courts, which are inconsistent with the CPC as originally enacted. Section 9A was inserted by an act of the Maharashtra State Legislature. Therefore in the light of the above amendments, Section 9A should be deemed to have been repealed. Mr. Doctor for the Appellants relied on a judgment of this Court dated 29 November, 2007, Madhuri Prabhakar Patole v. Aruna SatishChandra Gaikwad in support of this content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be decided as a preliminary issue under Section 9A of the Code of Civil Procedure,1908. Mr. Doctor also very strongly relied on a judgment delivered by a four-Judges bench of the Hon'ble Supreme Court in Ittyavira Mathai v. Varkey Varkey: [1964]1SCR495 wherein it was held that an objection to limitation is not an objection as to jurisdiction. Mr. Doctor submitted that the Learned Single Judge has failed to appreciate the ratio in Varkey's case, confusing the ratio with the finding. In Varkey's case, the decreeing of a suit barred by time is not a case of acting without jurisdiction, but is merely an act rendering the judgment illegal, and not a nullity. Mr. Doctor submitted that the Supreme Court has thus drawn a distinction between jurisdiction and limitation. iii) Mr. Doctor, the learned Senior Counsel for the Appellant submitted that the larger bench judgment in Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors. [1966]1SCR102 is not relevant since it was passed in the context of revisional jurisdiction under Section 115 of Code of Civil Procedure. 'Jurisdiction' in Section 115 is applicable not only to suits, but other civil proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied, has no application. ii) The plea of adverse possession has been taken by the Respondents for the first time in the appeal. The same is mutually incompatible with their plea of ownership. The Appellants submit that the plea of adverse possession must be specifically pleaded and proved. The Respondents contend that the Appellants did not specifically state that the Respondents had removed themselves from the property. The Appellants submit that this stand is incorrect. They have stated that the property was formerly abandoned and that the Respondents have forcibly entered onto the property. 6. Mr. Doctor, the learned Senior Counsel, thirdly contended that the Appellants are entitled to claim the benefit of Section 14, Limitation Act, 1963, for the time spent in prosecuting Suit No. 6734/1994 in the Bombay City Civil Court. i) The Appellants submit that they have tendered evidence to show the prosecution of their suit in good faith, including inter alia, submitting the roznama, showing the numbering of the plaint and pointing out that no objection was taken to the pecuniary jurisdiction of the court by the Respondents. ii) The Learned Single Judge has, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the jurisdiction of the court, it was submitted that Section 3, Limitation Act, 1963, provides that a suit, application or appeal after the prescribed period shall be dismissed even though limitation is not set up as a defence. iii) Mr. Madon cited several cases in support of his argument. For instance, in Pandurang Dhodi Chougule and Ors. v. Maruti Hari Jadhav and Ors.: [1966]1SCR102 a five-Judge bench of the Hon'ble Supreme Court has categorically held that limitation was a plea of law concerning jurisdiction and a finding in favour of the party raising it would oust the court's jurisdiction. The same was reiterated in Manish Chandra Nandy v. Debdas Nandy: AIR1986SC446 . iv) In Official Trustee W.B.and Ors. v. Sachindranath Chatterjee and Ors. 1969 (3) SCC 92 the Supreme Court held that jurisdiction is the power of the court to hear and determine a cause, to adjudicate and exercise any power in relation to it. In view of this ruling, Mr. Madon has argued that where a suit is barred by limitation, the court does not have the authority to pass the order sought for, and hence, jurisdiction is ousted. In Sudesh w/o. Sushilkumar Handa v. Abdul Aziz, s/o Umarbhai and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated by leading any oral evidence, even though they were given an opportunity to do so. In Ghisulat Gameshi Lal v. Gumbhimull Pandya AIR1938Cal377 it was held that just because a person engages a lawyer, it does not, by itself mean that he had acted in a bonafide manner and even if the lawyer gives improper or incorrect advice, it cannot be said that he acted in good faith. In Kandepre Raghavayya v. Elukonic Vasudevayya Chetty AIR 1944 Mad. 47 it was held that whether the advocate has shown due care and attention is a question of fact to be decided on the basis of evidence adduced. In the present case, no evidence was led, nor was the name of the advocate who advised the Appellants is disclosed. In Deena v. Bharat Singh [2002]SUPP1SCR289 it was held that the finding of good faith under Section 14 was a question of fact. The judgment cited by the Appellants in Dasrath Behera v. Kataidei AIR 1961 Ori.160 is per incuriam. The Appellants' reliance on Bomi Munchershaw v. Kesharwani Cooperative Housing Society Ltd. 1993(2)BomCR301 is misconceived, as in that case, the lawyer who had advised the plaintiffs was cross-examined, which is not the case in the matter at hand. 10. Mr. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the hypothecation bond executed by Ittyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. Even assuring that the suit was barred by time, it is difficult to appreciate the contention of learned Counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an Appeal against it. But it is well settled that a Court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral occassions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however, gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Cls. (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate Courts which are related to questions of jurisdiction. 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 which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to a later date. The main reason is that if the Court comes to finding that it does not have jurisdiction vested in it in law, then no further enquiry is needed and saves a lot of valuable judicial time. In fact, Section 9A itself mandates that when an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties, the Court will have to decide the issue expeditiously and in no case to be adjourned to the hearing of the suit. 19. A Division Bench judgment of our High Court in Smith Kline Beecham Cons v. Hindustan Lever: (2003)105BOMLR547 has categorically held, that it is not sufficient that the Court has territorial or pecuniary jurisdiction or jurisdiction in relation to the subject matter of the suit but if the suit is barred by any statute, the Court will have no authority to hear and decide the same. The said judgment clearly holds that the use of the word jurisdiction is used in a wider sense under Section 9A, which would include the bar to maintainability of the suit, i.e. to say any statutory bar to the maintainability of the suit. Section 3 of Limitation Act clearly mandates the Court to dismiss the suit if the same is barred by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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