Section 9A CPC as introduced by Maharashtra Amendment Act will prevail over Section 9 CPC

Whether provisions of Section 9A as introduced by (Maharahtra Amendment) Act is mandatory in nature was the question before Court in the instant matter.

Section 9 of the Code of Civil Procedure (CPC) confers power and jurisdiction to Courts to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. As per the provision all suits of civil nature can be entertained by civil Courts and Explanation (I) to the provision clarifies as to what a suit of a civil nature is. Immediately, after Section 9, Section 9A was inserted by Code of Civil Procedure (Maharashtra Amendment) Act, 1970 which was however repealed by the CPC Amendment Act, 1976. Realising the usefulness and importance of the provision, the state legislature re-enacted Section 9A. The core issue before Court was to determine as to whether an issue relating to a bar to the suit created by law of limitation can be tried as preliminary issue under Section 9A of the CPC.

Order XIV Rule 2 of the Code of Civil Procedure, confers power upon the Court to pronounce judgment on all the issues subject to an exception that 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 issue of law, it may try that issue first if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law. The moot question therefore before court for consideration was as to whether courts shall be guided by the provisions of Order XIV Rule 2 of the Code of Civil Procedure or Section 9A of the Code as amended by Maharashtra Amendment Act, in the matter of deciding the objection with regard to jurisdiction of the court which concerns the bar of limitation as a preliminary issue.

Section 9A, as observed, is a complete departure from the procedure provided under Order XIV Rule 2. Notwithstanding the inconsistency contained in the Code of Civil Procedure and the provisions contained in Section 9A of the State Act which had received assent from the President, the provisions of the said Section has to be complied with and can be held to be a valid legislation. It was observed as well settled that essentially the jurisdiction is an authority to decide a given case one way or the other. Further, even if no party raises objection with regard to jurisdiction of the court, the court has power to determine its own jurisdiction. In other words, in a case where the Court has no jurisdiction; it cannot confer upon it by consent or waiver of the parties. Section 3 of the Limitation Act, 1963 clearly provides that every suit instituted, appeal preferred and application made after the prescribed period of limitation, subject to the provisions contained in Sections 4 to 24, shall be dismissed although the limitation has not been set up as a defence.

Section 9A contemplates that when an issue of jurisdiction is raised, the said issue should be decided at first as expeditiously as possible, and not be adjourned to a later date. The primary 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. The provision talks of maintainability only on the question of inherent jurisdiction and does not contemplate issues of limitation and it has been inserted in the Code to prevent the abuse of the 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.

Section 9A provides a self-contained scheme with a non-obstante clause which mandates the court to follow the provision and at the same time is a complete departure from the provisions contained in Order XIV Rule 2 CPC. Intention of law is to decide the issue relating to jurisdiction of the court as a preliminary issue notwithstanding the provision contained in Order XIV Rule 2 CPC. It was however clarified that in other cases where the suits are governed by the provisions of Order XIV Rule 2 CPC, it is the discretion of the court to decide the issue based on law as preliminary issue.

Accordingly the provision of Section 9A as introduced by (Maharashtra Amendment) Act was held to be mandatory in nature.
[Foreshore Co-operative Housing Society Ltd. vs. Praveen D.Desai (Dead) thr. Lrs. and Ors.]
(SC, 08.04.2015 – Civil Appeal No. 7732 of 2011)