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TMI Blog2002 (4) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... hereto, the first respondent contended that the application was filed merely to delay the trial of the suit and that the application which was presumably under Order 14, Rule 2(2) of the Code of Civil Procedure, 1908, was misconceived. The first respondent submitted that the determination of the question of limitation in this case involves an enquiry into matters of fact which were in dispute, upon which evidence would have to be adduced at the trial of the suit. 3. By the order dated 27th August 2001, the Trial Court is of the view that the suit is ripe for the framing of issues and that the objection of the Applicant to the effect that the suit is barred by limitation, will be determined on the basis of the evidence adduced at the trial- The learned Trial Judge, therefore, held that there was no necessity to frame a preliminary issue and accordingly, dismissed the application at Exh. 45. The Applicant seeks to impugn the order of the learned Trial Judge. 4. The learned Counsel appearing on behalf of the Applicant has relied on the provisions of Section 9A of the Code of Civil Procedure, .1908 which came to be inserted by the Maharashtra Amendment of 1977. Section 9A provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervening period, ad-interim injunctions were granted by the Court which were continued. In this context, the statement of objects and reasons was to the following effect: 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. The Division Bench held that Section 9-A has departed from the procedure which is prescribed by Order 14, Rule 2 of the Code of Civil Procedure, 1908. The effect of Section 9-A is that if at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, 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, then there is a mandate to the effect that the Court shall proceed to determine at the hearing of such an application the issue as to jurisdiction as a preliminary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rave 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 XIV, Rule 2. Once the issue is to be decided by raising it as a preliminary issue, it is required to be determined after proper adjudication. Adjudication would require giving opportunity to the parties to lead evidence, if required. 6. The Judgment of the Division Bench of this Court, thus deals with a situation where at the hearing of an application for the grant of interim relief or for setting aside an order granting interim relief - whether in the nature of stay, injunction, appointment of a receiver or otherwise - an objection as to the jurisdiction of the Court is raised. In such a case, Section 9-A mandates that a preliminary issue has to be framed. If the issue involved is a mixed question of law and fact, the parties would have to be given an opportunity to adduce evidence on the preliminary issue which has been framed. In a matter which is not, however, covered by Section 9-A, what Order 14, Rule 2 of the Code of Civil Procedure mandates is that the Court shall pronounce judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court held thus : 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 by them cannot be treated as nullities. The Supreme Court then dealt with the argument that Section 3 of the Limitation Act requires the Court to ascertain for itself whether the suit filed before it was within time. On that basis the submission was that the Court would act without jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in Ittyavira Mathai's case (supra) has been followed in a recent judgment of the Supreme Court in Budhia Swain v. Gopinath Deb, [1999] 2 SCR 1189. Mr. Justice R. C. Lahoti delivering the judgment of a Bench of two learned Judges held that A suit or proceeding entertained and decided in spite of being barred by limitation is not without jurisdiction, at worst it can be a case of illegality. 11. In the circumstances of this case, the provisions of Section 9-A were not attracted either in terms of the stage at which the application could be filed or in terms of the subject matter which can permissibly form a part of the challenge to the jurisdiction of the Court. The learned Trial Judge was of the view that the issue involved in the present case was not an issue of law alone, but requires evidence to be adduced. In holding thus, the learned Trial Judge has obviously based his reasoning on the provisions contained in Order 14, Rule 2(2) of the Code of Civil Procedure. Since the issue of limitation in the present case was not a pure question of law as the contents of the application filed by the Applicant herein would itself show, the learned Trial Judge was justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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