"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."
The
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.
The
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
