My photo




Friday, April 10, 2015

Sec.9 A of C.P.C.( Maharashtra Amendment ) - an objection to the jurisdiction of the Court to entertain such a 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. - No need to frame an Issue under Or.XIV, Rule 2 of C.P.C as it is specifically framed for quick disposal at interim stage itself - 2015 SC msk lawreports

"9-A. Where at the hearing of application relating to interim  relief  in  a
suit, objection to jurisdiction is taken, such issue to be  decided  by  the
Court as a preliminary issue.- 
(1)  Notwithstanding  anything  contained  in
this Code or any other law for the time being in force, 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 a 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 he 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 as  it  may
consider necessary, pending determination by it of the preliminary issue  as
to be jurisdiction."

Appellant is a co-operative housing society consisting of owners of  various
flats in the building 'Advent'  which  exists  on  the  suit  property.  The
Appellant filed Suit No.2939/1999 for declaring that Respondent Nos.1-6  and
8 have no rights whatsoever over the suit property and that  they  were  not
entitled to carry out  construction  of  the  building  by  name  of  'Divya
Prabha' within the suit property and for permanently restraining  them  from
doing so. The Appellant also prayed for declaring the  revalidation  of  the
I.O.D.  (Intimation  of  Disapproval)  and   commencement   certificate   by
Respondent No. 7 - Municipal Corporation in 1998, 2004 and  2005  in  favour
of Respondent Nos. 1-6 and 8 to carry out construction of  the  building  by
name of 'Divya Prabha' in the suit property to be illegal.

the  defendant-respondents  had  raised
objection to the maintainability of the suit itself as also on the  question
whether the suit is filed within the period of limitation.

After hearing learned counsel on either side, the Division Bench  held
that the moment the issue of jurisdiction was raised  under  Section  9A  of
Code of Civil Procedure, such issue had to be decided first as the same  was
mandated under Section 9A and as valuable time could be saved in case it  is
found that the court does not have  jurisdiction. 
The  term  "jurisdiction"
under Section 9A was held to have been used in a wider sense and subject  to
any statutory bar on the maintainability of a suit. The Division Bench  held
that the court was bound to dismiss a suit barred by limitation  as  it  had
no jurisdiction to entertain the same.
 The plea of limitation  was  held  to
be a question of law which related to the jurisdiction of the court and  the
court was held to be precluded from adjudicating the matter on  merits  when
the suit was barred by limitation.  

 The Division  Bench  went  on  to  hold
that the  suit  herein,  which  was  filed  on  18.05.1999,  was  barred  by
limitation as the cause of action arose in April, 1994.  
 The  view  of  the
Single Judge that the plaint  initially  did  not  have  any  pleadings  for
availing the benefit under Section 14 of the Limitation  Act  and  that  the
same was incorporated by way  of  an  amendment  in  2005  was  upheld.  
Division Bench held that the Appellant  was  not  entitled  to  the  benefit
under Section 14 of the Limitation Act as there was no proof of the  earlier
suit having been prosecuted with due diligence and good faith and  dismissed
the appeal vide the impugned judgment.
  Mr. Nariman, learned senior counsel appearing for  the  appellant  put
heavy reliance on the decision in the case of  Ramesh  B.  Desai  vs.  Bipin
Vadilal Mehta, (2006) 5  SCC  638,  for  the  proposition  that  a  plea  of
limitation cannot be decided as an abstract principle of law  divorced  from
facts as  in  every  case  the  starting  point  of  limitation  has  to  be
ascertained which is entirely a question of fact.  A plea of  limitation  is
a mixed question of law  and  fact.   In  our  considered  opinion,  in  the
aforesaid decision this Court was considering the  provision  of  Order  XIV
Rule 2, CPC.  While interpreting the provision of Order  XIV  Rule  2,  this
Court was of the view that the issue on limitation, being a  mixed  question
of law and fact is to be decided along with  other  issues  as  contemplated
under  Order  XIV,  Rule  2,  CPC.   As  discussed  above,  Section  9A   of
Maharashtra Amendment Act makes a  complete  departure  from  the  procedure
provided under Order 14, Rule 2, CPC.  Section  9A  mandates  the  Court  to
decide the jurisdiction of the Court before proceeding  with  the  suit  and
granting interim relief by way of injunction.

57.   At the cost of repetition, we observe 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 CPC.  In other words, the non-obstante  clause
inserted by Maharashtra Amendment Act of 1977 in Section 9A and the  express
mandate of the Section, the intention of the law  is  to  decide  the  issue
relating  to  jurisdiction   of   the   court   as   a   pre

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.