Bombay High Court
Mahanagar Gas Limited vs Vinod Jadhav on 22 February, 2019
Author: K.R. Shriram
Bench: K.R. Shriram
Varsha 1/21 52 s 215.1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY AND ORIGINAL CIVIL JURISDICTION
SUIT NO.179 OF 2017
WITH
NOTICE OF MOTION NO.550 OF 2017
IN
SUIT NO.179 OF 2017
Paresh Kapadia ....Plaintiff
Versus
Sandeep Runwal and Ors. ....Defendants
WITH
SUIT NO.215 OF 2017
WITH
NOTICE OF MOTION NO.731 OF 2017
IN
SUIT NO.215 OF 2017
Vidya Niwas Co-op. Hsg. Soc. Ltd. ....Plaintiff
Versus
Sanjay Ramesh Agarwal and Ors. ....Defendants
WITH
SUIT NO.247 OF 2017
WITH
NOTICE OF MOTION NO.1047 OF 2017
IN
SUIT NO.247 OF 2017
Mahanagar Gas Limited ....Plaintiff
Versus
Rahul Gaikwad and Ors. ....Defendants
----
Mr. Gauraj Shah a/s Ms. Khyati Pandit and Ms. Swati Sutar I/b Dhru and
Co. for plaintiff in Suit No.179 of 2017.
Mr. Niraman Sharma a/w Mr. Sahil Harjani and Mr. Nasrin Shaikh I/b M/s.
Desai and Diwanji for defendants in Suit No.179 of 2017.
Mr. Dalal I/b Dalal and Co. for plaintiff in Suit No.215 of 2017.
Mr. Faran Khan I/b Sheela Mistry for Defendants in Suit No.215 of 2017.
Mr. Mahesh Londhe a/w Mr. Netaji Gawade I/b M/s. Sanjay Udeshi and Co.
for plaintiff in Suit No.247 of 2017.
Mr. Amit Dhutia I/b Swapnil R. Patil for defendant nos. 61 and 62 in Suit
No.247 of 2017.
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Varsha 2/21 52 s 215.1
Mr. Shailesh S. Pathak for defendant no.64 in Suit No.247 of 2017.
Mr. Zal Andhyarujina and Dr. Abhinav Chandrachud, Amicus Curiae
present.
----
CORAM: K.R. Shriram, J.
DATE : 22nd February 2019.
PC :
1 In these three suits defendants have raised the issue of jurisdiction under Section 9A of the Code of Civil Procedure (CPC). In Suit No.179 of 2017 and Suit No.247 of 2017 this Court was pleased to frame issue under Section 9A of CPC. In Suit No.215 of 2017 no such issue has been framed but parties were directed to file their evidence affidavits.
2 As per the Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018 (the First Amendment Act), Section 9A of Code of Civil Procedure, 1908 (Maharashtra Amendment) came to be deleted. The legality of deletion of Section 9A was challenged in the Bench of this Court at Aurangabad in Writ Petition No.12607 of 2017 with Writ Petition No.14076 of 2017. This Court by an order dated 12 th December 2018 was pleased to reject the challenge.
3 The Maharashtra Government on 15th December 2018 notified the Civil Procedure (Maharashtra Amendment) (Amendment) Act, 2018 (the Second Amendment Act) amending the First Amendment Act. By this Act, Section 3(1) of the First Amendment Act came to be substituted to the effect that where consideration of a preliminary issue framed under Section ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 3/21 52 s 215.1 9A is pending on the date of commencement of the First Amendment Act, the said issue shall be decided and disposed of by the Court under Section 9A, as if the said Section 9A has not been deleted. Since the Second Amendment Act was notified soon after the First Amendment Act of deleting Section 9A was notified, the Court was concerned as to whether the second amendment was valid. One of the main concern was that the second amendment is discriminatory and arbitrary to treat one set of litigants differently from others. Even in the three suits before this Court today, in one suit, viz., Suit No.215 of 2017 though the issue of objection has been raised in the affidavit in reply to the notice of motion, formal issue has not been framed. It was also observed from the statement of objects and reasons of both Amendment Act, the method of seeking to achieve the objective aimed at furthering the rights of litigants is inconsistent, i.e., the First Amendment Act seeks to do away with Section 9A (subject to transitioning and sun setting provisions), whereas the Second Amendment Act seeks to re-insert Section 9A.
Therefore, this Court appointed Mr. Zal T. Andhyarujina and Dr. Abhinav Chandrachud, counsels, to assist the Court as Amicus Curiae.
Their assistance has been immense and the same is appreciated.
4 During the hearing, the following points came up for discussion and consideration :
(1) The provisions of the Code of Civil Procedure (Maharashtra ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 4/21 52 s 215.1 Amendment) Act, 2018 ("the First Amendment Act") and the provisions of the Code of Civil Procedure (Maharashtra Amendment) (Amendment) Act, 2018 ("the Second Amendment Act");
(2) The defects in the Second Amendment Act.
Mr. Andhyarujina submitted, and I agree with him, is that the Second Amendment has to be set aside ; and (3) The power of the Single Judge to refer a matter to the Hon'ble Chief Justice of this Court.
5 THE AMENDMENT ACTS 5.1 The Ordinance and the First Amendment Act 5.1.1 The Ordinance -
i) The Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018 (Maharashtra Ordinance No. XVIII of 2018) was promulgated by the Governor of Maharashtra.
ii) The Ordinance was published and notified in the Maharashtra Government Gazette on 27th June 2018.
iii) The Ordinance is extracted below:
"1. (1) This Ordinance may be called the Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018.
(2) It shall come into force at once.
2. Section 9A of the Code of Civil Procedure, 1908, in its application to the State of Maharashtra (hereinafter referred to as "the principal ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 5/21 52 s 215.1 Act"), shall be deleted.
3. Notwithstanding the deletion of section 9A of the principal Act, --
(1) where consideration of a preliminary issue framed under section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018 (hereinafter, in this section, referred to as "the Amendment Ordinance"), the said issue shall be deemed to be an issue framed under Order XIV of the principal Act and shall be decided by the Court, as it deems fit, along with all other issues, at the time of final disposal of the suit itself:
Provided that, the evidence, if any, led by any party or parties to the suit, on the preliminary issue so framed under section 9A, shall be considered by the Court along with evidence, if any, led on other issues in the suit, at the time of final disposal of the suit itself; (2) in all the cases, where a preliminary issue framed under section 9A has been decided, holding that the court has jurisdiction to entertain the suit, and a challenge to such decision is pending before a revisional Court, on the date of commencement of the Amendment Ordinance, such revisional proceedings shall stand abated:
Provided that, where a decree in such suit is appealed from any error, defect or irregularity in the order upholding jurisdiction shall be treated as one of the ground of objection in the memorandum of appeal as if it had been included in such memorandum;
(3) in all cases, where a preliminary issue framed under section 9A has been decided, holding that the Court has no jurisdiction to entertain the suit, and a challenge to such decision is pending before an appellate or revisional Court, on the date of commencement of the Amendment Ordinance, such appellate or revisional proceedings shall continue as if the Amendment Ordinance has not been enacted and section 9A has not been deleted:
Provided that, in case the appellate or revisional Court, while partly allowing such appeal or revision, remands the matter to the trial Court for reconsideration of the preliminary issue so framed under section 9A, upon receipt of these proceedings by the trial Court, all the provisions of the principal Act shall apply;
(4) in all cases, where an order granting an ad-interim relief has been passed under sub-section (2) of section 9A prior to its deletion, such order shall be deemed to be an ad-interim order made under Order XXXIX of the principal Act and the Court shall, at the time of deciding the application in which such an order is made, either confirm or vacate or modify such order."
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iv) The Statement of Objects and Reasons appended to the said Ordinance was as follows:
"STATEMENT.
Section 9A was inserted in the Code of Civil Procedure, 1908 (5 of 1908), in its application to the State of Maharashtra, by the Code of Civil Procedure (Maharashtra Amendment) Act, 1970 (Mah. XXV of 1970), with a view to undo the effect of a judgment of High Court delivered in the case of Institute Indo-Portuguese v. Borges [(1958) 60 Bom. L.R. 660].
At the time, when a suit was filed against the Government in the Bombay City Civil Court without a valid notice being issued under section 80 of the Code, the Court would, without going into the question of jurisdiction, grant an ad-interim injunction and an adjournment to the Plaintiff. This would enable the Plaintiff to issue a notice to the Government. After the expiry of the period of the notice, the Plaintiff would then withdraw the suit with liberty to file a fresh one and in the freshly filed suit seek continuation of the ad-interim injunction granted earlier.
It was, therefore, felt that the practice of granting injunctions, without going into the question of jurisdiction even though raised, was leading to grave abuse. It was against the backdrop that section 9A was introduced into the Code.
2. In 1976, the said Code has been extensively amended by the Code of Civil Procedure (Amendment) Act, 1976 (CIV of 1976), enacted by the Parliament. Therefore, to leave no room for any doubt whether the State amendments continued to be in force or stood repealed, the Maharashtra Amendment Act of 1970 was repealed and again section 9A is re-enacted by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977(Mah. LXV of 1977).
3. However, today, section 9A has become a cumbersome and tedious provision which has contributed to judicial backlog and given rise to several complications. It has been held, in Meher Sing vs. Deepak Sawhny [(1998) 3 Mh.LJ. 940], that where an issue of jurisdiction involves a mixed question of fact and law, parties must be given an opportunity to lead evidence. It has been held, in Foreshore Co-operative Housing Society vs. Praveen D. Desai [(2015) 6 SCC 412] and Sandeep Gopal Raheja vs. Sonali Nimisha Arora [(2016) SCC On Line Bom. 9378], that section 9A is mandatory in nature, that where the defendant raises an objection to the jurisdiction of the Court, the court has no discretion and is bound to frame an issue and decide it. It has been held, in Mukund Ltd. v. Mumbai International Airport ((2011) 2 Mah. LJ 936), that even a defendant cannot, as a matter of litigation strategy, decide not to press its jurisdictional objection at the hearing of ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 7/21 52 s 215.1 the interim application. The question of whether section 9A includes a plea by the defendant that the suit is barred by the law of limitation is a vexed one, which has been referred to a larger Bench of the Supreme Court in Jagdish Shyamrao Thorve v. Shri Mohan Sitaram Dravid, SLP (C) 22438/ 2015, by virtue of an order dated the 17th August 2015.
Consequently, section 9A of the said Code has given rise to at least two judicial bottlenecks which have stymied the speedy disposal of cases. Firstly, when an issue is raised under section 9A of the said Code, a court cannot dispose a motion until the trial into such an issue is concluded and the issue is finally decided. The motion consequently remains pending for several years, and ad-interim relief masquerades virtually as final relief. Secondly, when such an issue is raised, two trials have to be conducted, viz., one on the preliminary issue and the other on the remaining issues, each subject to its own round of appeals and Special Leave Petitions. All this needlessly burdens the Court with duplication and results in a waste of judicial time and resources. In fact, in Madhuriben K. Mehta vs. Ashwin Rupsi Nandu ((2012) 5 Bom. CR
27), the Bombay High Court took the view that section 9A has led to the "abuse of duplication of work by repeated applications which has become an endemically circuitous practice."
4. It is, therefore, considered expedient to amend the Code of Civil Procedure, 1908, in its application to the State of Maharashtra, by deleting the said section 9A.
5. An opportunity is also being taken to provide for the effect and consequences of the deletion of section 9A on the proceedings pending in the Courts on the date of commencement of the proposed Ordinance. It is proposed to provide for, --
(a) the pending preliminary issue to be decided at the time of final decision of the suit itself, along with other issues framed under Order XIV of the Code of Civil Procedure, 1908, including consideration of evidence already led in that regard;
(b) abatment of the revisions pending before revisional forum against the decision of the Trial Court holding that it has jurisdiction to entertain the suit so as to ensure the speedy and final disposal of the suit itself, while keeping alive the right of the defendant to challenge the finding on the issue of jurisdiction at the appellate stage, in case if the suit is finally decreed;
(c) continuation of appeals pending before Appellate Court against the decision of the Trial Court holding that it has no jurisdiction to entertain the suit, as if section 9A has not been deleted, as in such cases the suit itself has been dismissed finally; and
(d) providing that an ad-interim relief granted under sub-section (2) of section 9A prior to its deletion to be treated as an ad-interim order in the interim application made under Order XXXIX of the Code of Civil ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 8/21 52 s 215.1 Procedure, 1908, which may be confirmed or vacated at the final hearing of the interim application.
6. As both Houses of the State Legislature are not in session and the Governor of Maharashtra is satisfied that circumstances exist which render it necessary for him to take immediate action further to amend the Code of Civil Procedure, 1908 (V of 1908), in its application to the State of Maharashtra, for the purposes aforesaid, this Ordinance is promulgated."
5.1.2 The First Amendment Act -
(a) On 29th October 2018, the said Ordinance was replaced by the Code of Civil Procedure (Amendment Act), 2018 [Maharashtra Act No. LXI of 2018] and accordingly, the Ordinance was repealed.
(b) The Amendment Act was published and notified in the Maharashtra Government Gazette and was deemed to have come into force from 27th June 2018.
(c) The Amendment Act is as follows:
"1. (1) This Act may be called the Code of Civil Procedure (Maharashtra Amendment) Act, 2018.
(2) It shall be deemed to have come into force on the 27th June 2018.
2. Section 9A of the Code of Civil Procedure, 1908, in its application to the State of Maharashtra (hereinafter referred to as "the principal Act"), shall be deleted.
3. Notwithstanding the deletion of section 9A of the principal Act, --
(1) where consideration of a preliminary issue framed under section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018 (hereinafter, in this section, referred to as "the Amendment Act"), the said issue shall be deemed to be an issue framed under Order XIV of the principal Act and shall be decided by the Court, as it deems fit, along with all other issues, at the time of final disposal of the suit itself:::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 :::
Varsha 9/21 52 s 215.1 Provided that, the evidence, if any, led by any party or parties to the suit, on the preliminary issue so framed under section 9A, shall be considered by the Court along with evidence, if any, led on other issues in the suit, at the time of final disposal of the suit itself;
(2) in all the cases, where a preliminary issue framed under section 9A has been decided, holding that the Court has jurisdiction to entertain the suit, and a challenge to such decision is pending before a revisional Court, on the date of commencement of the Amendment Act, such revisional proceedings shall stand abated:
Provided that, where a decree in such suit is appealed from any error, defect or irregularity in the order upholding jurisdiction shall be treated as one of the ground of objection in the memorandum of appeal as if it had been included in such memorandum;
(3) in all cases, where a preliminary issue framed under section 9A has been decided, holding that the Court has no jurisdiction to entertain the suit, and a challenge to such decision is pending before an appellate or revisional Court, on the date of commencement of the Amendment Act, such appellate or revisional proceedings shall continue as if the Amendment Act has not been enacted and sect ion 9A has not been deleted:
Provided that, in case the appellate or revisional Court, while partly allowing such appeal or revision, remands the matter to the trial Court for reconsideration of the preliminary issue so framed under section 9A, upon receipt of these proceedings by the trial Court, all the provisions of the principal Act shall apply;
(4) in all cases, where an order granting an ad-interim relief has been passed under sub-section (2) of section 9A prior to its deletion, such order shall be deemed to be an ad-interim order made under Order XXXIX of the principal Act and the Court shall, at the time of deciding the application in which such an order is made, either confirm or vacate or modify such order.
4. (1) The Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018, is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken (including any notification or order issued) under the corresponding provisions of the principal Act, as amended by the said Ordinance, shall be deemed to have been done, taken or issued, as the case may be, under the corresponding provisions of the principal Act, as amended by this Act."
::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 :::Varsha 10/21 52 s 215.1 5.2 In Writ Petition No.12607 of 2017 heard with Writ Petition
No.14076 of 2017 by the Aurangabad Bench of this Court, a challenge to the Ordinance (as it then was) was made, in particular to clause 3(1). The prayer was to declare clause 3(1) of the said Ordinance unconstitutional and be struck down. The learned Single Judge by an order and judgement dated 12th December 2018, dismissed the challenge. The Court observed how Section 9A was being misused and that it contributed to increasing judicial backlog. It was also observed that Section 9A created judicial bottlenecks which stymied the progress of litigation. It will be useful to reproduce paragraphs 6 to 10 of the said judgement which read as under :
6. The contention on the Civil Application is that clause 3(1) of the said Ordinance curtails the jurisdiction of the trial court or the appellate court, which is empowered to entertain the objections under Section 9A.
The competent court can deal with the objections under Section 9A at a preliminary stage and without taking up the said issue along with the other issues. As such, the power vested in the Civil Court under Order 14 Rule 2 has been practically taken away and a mandate is created by the said Ordinance that the said power would be curtailed into entertaining of all issues together under Order 14 Rule 2. No ordinance can take away the powers of the court as are enshrined under the original enactment.
7. In view of the above, I find that the Civil Application needs to be dealt with first since the conclusion on the Civil Application would have an impact on the pending writ petitions.
8. The statement of reasons for introducing the Ordinance of 2018 is available for assistance. The said statement reads thus :
"STATEMENT.
Section 9A was inserted in the Code of Civil Procedure, 1908 (5 of 1908), in its application to the State of Maharashtra, by the Code of Civil Procedure (Maharashtra Amendment) Act, 1970 (Mah. XXV of 1970), with a view to undo the effect of a judgement of High Court delivered in the case of Institute IndoPortuguese v. Borges [(1958) 60 Bom. L.R. 660]. At the time, when a suit was filed against the ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 11/21 52 s 215.1 Government in the Bombay City Civil Court without a valid notice being issued under section 80 of the Code, the Court would, without going into the question of jurisdiction, grant an ad-interim injunction and an adjournment to the Plaintiff. This would enable the Plaintiff to issue a notice to the Government. After the expiry of the period of the notice, the Plaintiff would then withdraw the suit with liberty to file a fresh one and in the freshly filed suit seek continuation of the ad-interim injunction granted earlier. It was, therefore, felt that the practice of granting injunctions, without going into the question of jurisdiction even though raised, was leading to grave abuse. It was against the backdrop that section 9A was introduced into the Code.
2. In 1976, the said Code has been extensively amended by the Code of Civil Procedure (Amendment) Act, 1976 (CIV of 1976), enacted by the Parliament. Therefore, to leave no room for any doubt whether the State amendments continued to be in force or stood repealed, the Maharashtra Amendment Act of 1970 was repealed and again section 9A is reenacted by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977 (Mah.LXV of 1977).
3. However, today, section 9A has become a cumbersome and tedious provision which has contributed to judicial backlog and given rise to several complications. It has been held, in Meher Sing vs. Deepak Sawhny [(1998) 3 Mh.LJ. 940], that where an issue of jurisdiction involves a mixed question of fact and law, parties must be given an opportunity to lead evidence. It has been held, in Foreshore Cooperative Housing Society vs. Praveen D. Desai [(2015) 6 SCC 412] and Sandeep Gopal Raheja vs . Sonali Nimisha Arora [(2016) SCC On Line Bom. 9378], that section 9A is mandatory in nature, that where the defendant raises an objection to the jurisdiction of the Court, the court has no discretion and is bound to frame an issue and decide it. It has been held, in Mukund Ltd. v. Mumbai International Airport ((2011) 2 Mah. LJ 936), that even a defendant cannot, as a matter of litigation strategy, decide not to press its jurisdictional objection at the hearing of the interim application. The question of whether section 9A includes a plea by the defendant that the suit is barred by the law of limitation is a vexed one, which has been referred to a larger Bench of the Supreme Court in Jagdish Shyamrao Thorve v. Shri Mohan Sitaram Dravid, SLP (C) 22438/2015, by virtue of an order dated the 17th August 2015. Consequently, section 9A of the said Code has given rise to at least two judicial bottlenecks which have stymied the speedy disposal of cases. Firstly, when an issue is raised under section 9A of the said Code, a court cannot dispose a motion until the trial into such an issue is concluded and the issue is finally decided. The motion consequently remains pending for several years, and ad-interim relief masquerades virtually as final relief. Secondly, when such an issue is raised, two trials have to be conducted, viz., one on the preliminary issue and the other on the remaining issues, each subject to its own round of appeals and Special Leave Petitions. All this needlessly burdens the Court with duplication and results in a waste of judicial time and resources. In fact, in Madhuriben K. Mehta vs. Ashwin Rupsi Nandu ((2012) 5 Bom. CR ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 12/21 52 s 215.1
27), the Bombay High Court took the view that section 9A has led to the "abuse of duplication of work by repeated applications which has become an endemically circuitous practice.".
4. It is, therefore, considered expedient to amend the Code of Civil Procedure, 1908, in its application to the State of Maharashtra, by deleting the said section 9A.
5. An opportunity is also being taken to provide for the effect and consequences of the deletion of section 9A on the proceedings pending in the Courts on the date of commencement of the proposed Ordinance. It is proposed to provide for,--
(a) the pending preliminary issue to be decided at the time of final decision of the suit itself, along with other issues framed under Order XIV of the Code of Civil Procedure, 1908, including consideration of evidence already led in that regard;
(b) abetment of the revisions pending before revisional forum against the decision of the Trial Court holding that it has jurisdiction to entertain the suit so as to ensure the speedy and final disposal of the suit itself, while keeping alive the right of the defendant to challenge the finding on the issue of jurisdiction at the appellate stage, in case if the suit is finally decreed;
(c) continuation of appeals pending before Appellate Court against the decision of the Trial Court holding that it has no jurisdiction to entertain the suit, as if section 9A has not been deleted, as in such cases the suit itself has been dismissed finally; and
(d) providing that an adinterim relief granted under subsection (2) of section 9A prior to its deletion to be treated as an ad-interim order in the interim application made under Order XXXIX of the Code of Civil Procedure, 1908, which may be confirmed or vacated at the final hearing of the interim application.
6. As both Houses of the State Legislature are not in session and the Governor of Maharashtra is satisfied that circumstances exist which render it necessary for him to take immediate action further to amend the Code of Civil Procedure, 1908 (V of 1908), in its application to the State of Maharashtra, for the purposes aforesaid, this Ordinance is promulgated. "
9. The statement would, therefore, indicate that Section 9A was utilized extensively to cause misuse rather than being in aid to the legal system. By the excessive misuse of Section 9A, the litigation became cumbersome and tedious and this contributed to increasing judicial backlog. Paragraph 3 of the statement would indicate that judicial pronouncements of the Honourable Supreme Court were taken into account wherein, the Honourable Supreme Court concluded that as ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 13/21 52 s 215.1 Section 9A is practically mandatory in nature, an issue has to be cast the moment the defendant raises an objection under Section 9A. No discretion was left with the civil court to decide whether, the issue could be framed or not and as such, the defendants were more prone to misuse Section 9A. The matter was referred to the Larger Bench of the Honourable Supreme Court in Jagdish Shyamrao Thorve vs. Mohan Sitaram Dravid, SLP (C) No.22438/2015 by order dated 17.08.2015. It was thus, concluded that Section 9A has created at least two judicial bottlenecks which stymied the progress of litigation, resulted in delaying the litigation and also resulted in multiplicity since several round of litigations emerged from the orders passed on Section 9A by treating the issue as a preliminary issue. It was in this backdrop that the Ordinance of 2018 was introduced.
10. Insofar as the jurisdiction of this Court is concerned, I do not find that the request made by the original Defendant could be entertained in these petitions while dealing with the legality of the impugned orders. Even otherwise, the objections raised by the Defendant under Section 9A would now be constructed as objections under Order 14 Rule 2 and the said objections would be considered to assess whether, the trial court has territorial jurisdiction to entertain the suit.
5.3. Without considering this judgement, Maharashtra Government published the Second Amendment Act to amend the First Amendment Act.
5.4 The Bill and the Second Amendment Act 5.4.1 The Bill -
(a) The Code of Civil Procedure (Maharashtra Amendment) (Amendment) Bill, 2018 (L.A. Bill No.LXXX of 2018) was promulgated by the Governor of Maharashtra.
(b) The Bill was published and notified in the Maharashtra Government Gazette on 29th November 2018. The Bill was brought into effect retrospectively from 27th June 2018.
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(c) The Bill is extracted below :
"1. This Act may be called the Code of Civil Procedure (Maharashtra Short title. Amendment) (Amendment) Act, 2018.
2. In section 3 of the Code of Civil Procedure (Maharashtra Amendment) section 3 of Act, 2018, for clause (1), the following clause shall be substituted and shall be deemed to have been substituted with effect from the 27th June 2018, being the date of commencement of the said Act, namely : --
(1) where consideration of a preliminary issue framed under section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018 (hereinafter, in this section, referred to as "the Amendment Act"), the said issue shall be decided and disposed of by the Court under section 9A, as if the said section 9A has not been deleted;".
3. Nothing in this Act shall affect the decrees passed by a Civil Court during the period commencing from the 27th June 2018 being the date of commencement of the date of publication of this Act in the Maharashtra Government Gazette."
(d) The Statement of Objects and Reasons appended to the Bill is as follows:
"STATEMENT OF OBJECTS AND REASONS The Code of Civil Procedure (Maharashtra Amendment) Act, 2018 (Mah. LXI of 2018) is enacted to amend section 9A of the Code of Civil Procedure, 1908 (V of 1908), in its application to the State of Maharashtra. The said Act of 2018 provides for deletion of section 9A of the said Code and further saving provisions, as a consequence of deletion of the said section 9A. Clause (1) of section 3 of the said Act ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 15/21 52 s 215.1 provides that, in case consideration of a preliminary issue framed under section 9A is pending on the date of commencement of the said Act of 2018, the said issue shall be decided at the time of final decision of itself, along with other issues framed under Order XIV of the Code of Civil Procedure, 1908 (V of 1908).
2. Though, it was intended that such a provision would result in expeditious disposal of the suit itself, it has been observed that in fact the decision of the court on the preliminary issue is prolonged and the litigants are unnecessarily suffered thereby. It is, accordingly, proposed to provide that, where the consideration of a preliminary issue framed under Section 9A is pending on the date of commencement of the said Act of 2018, the said issue shall be decided and disposed of by the Court under section 9A as if the said section 9A has not been deleted.
3. It is, accordingly, proposed to amend clause (1) of section 3 of the said Act of 2018 and make suitable consequential saving provisions in that regard.
4. The Bill seeks to achieve the above objectives."
5.4.2 The Second Amendment Act -
(a) On 15th December 2018, the said Bill was replaced by the Code of Civil Procedure (Maharashtra Amendment) (Amendment) Act, 2018 (Maharashtra Act No. LXXII of 2018).
(b) The Amendment (Amendment) Act was published and notified in the Maharashtra Government Gazette and was deemed to have come into force from 27th June 2018.
(c) The Amendment (Amendment) Act is as follows :
"1. This Act may be called the Code of Civil Procedure (Maharashtra Short title. Amendment) (Amendment) Act, 2018.
2. In section 3 of the Code of Civil Procedure (Maharashtra Amendment) section 3 of Act, 2018, for clause (1), the following clause shall be substituted and shall be deemed to have been substituted with effect from the 27th June 2018, being the date of commencement of the said Act, namely: --::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 :::
Varsha 16/21 52 s 215.1 (1) where consideration of a preliminary issue framed under section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018 (hereinafter, in this section, referred to as "the Amendment Act"), the said issue shall be decided and disposed of by the Court under section 9A, as if the said section 9A has not been deleted;".
3. Nothing in this Act shall affect the decrees passed by a Civil Court during the period commencing from the 27th June 2018 being the date of commencement of the date of publication of this Act in the Maharashtra Government Gazette."
6 DEFECTS AND GROUNDS OF CHALLENGE to the Second Amendment :
6.1 The Second Amendment creates discrimination between classes of litigants :
(a) Section 3(1) of the Second Amendment Act states that where an issue under Section 9A of the CPC is already "framed" as on 27th June 2018, the issue is to be decided and disposed of by the Court under Section 9A, as if Section 9A has not been deleted;
(b) Therefore, what the Second Amendment Act in fact contemplates is that where an issue is "raised" but not "framed" under Section 9A, the issue will be framed and decided under Order XIV of the CPC, along with all other issues, at the time of disposal of the suit itself;
(c) Under the First Amendment Act, all issues (whether already raised, framed or to be raised in the future in new proceedings) were streamlined/dovetailed into Order XIV of the CPC, along with all other ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 17/21 52 s 215.1 issues, at the time of disposal of the suit itself;
(d) The First Amendment Act, therefore, treated existing issues framed and new challenges to jurisdiction on the same footing, i.e., under Order XIV (with some sun setting of Section 9A and revisions);
(e) Section 3(2) of the First Amendment Act which is in the nature of a "sunset clause" provided for the abatement of revisions pending against orders holding that the Court has jurisdiction and further provided that such grounds shall be treated as grounds of objection in the eventual appeal (in the judgement, order, decree); as such, it phased out the pending revisions;
(f) Section 3(3) of the First Amendment Act provided that where challenges by way of appeal or revision were pending against orders made in applications under Section 9A, orders holding that the Court had no jurisdiction to entertain the suit, the same would continue as if the First Amendment Act had not been enacted and Section 9A had not been deleted;
(g) The Proviso to Section 3(3) of the First Amendment Act, however, provides that in the event of the appeal/ revision being partially allowed and the matter being remanded to the trial court for re-
consideration of the issue under Section 9A, "all the provisions of the principal Act shall apply", i.e., the CPC shall apply. The matter so remanded would be considered now under Order XIV of the CPC. The provisions of ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 18/21 52 s 215.1 this sub-section are therefore, transitional in nature, i.e., partly allowing the appeal and revision to continue but providing that remands would be decided as an issue under Order XIV of the CPC;
(h) The Second Amendment Act, therefore, results in four new classes of litigants:
i. where the jurisdictional issue is framed by the Court, the parties must proceed under Section 9A (as if it has not been deleted);
ii. where the jurisdictional issue is raised but not framed by the Court, the issue will be decided under Order XIV of the CPC;
iii. where the jurisdictional issue is to be raised and framed by the Court in new proceedings to be filed after 27th June 2018, the issue will be decided under Order XIV of the CPC;
iv. where a matter is remanded under Section 3(4) of the First Amendment Act, the provisions of Order XIV will apply.
(i) It is discriminatory and arbitrary to treat one set of litigants differently from others inter alia for the following reasons :
i. Provisions of Section 9A/Order XIV of the CPC are not merely matters of procedure; they confer benefits on the litigants in terms of the stage at which the issue of jurisdiction can be decided;
ii. The First Amendment Act proceeded on the basis that it was in the interest of litigants to remove Section 9A as it was resulting in delays and bottlenecks and as such its removal would confer substantial benefit of a swift disposal of the trial to the litigants;::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 :::
Varsha 19/21 52 s 215.1 iii. The Second Amendment proceeded on the contrary and inconsistent basis that the removal of Section 9A had itself caused delays and bottlenecks and that its re-insertion would confer the substantial benefit of expeditious disposal of the jurisdictional challenge, towards the expeditious disposal of the suit;
iv. Both the First Amendment Act and Second Amendment Act therefore aimed at furthering the rights of litigants to expeditious disposal of the suit a substantial right, and given the considerable pendency of suits, a very meaningful one;
v. As is evident from the Statement of Objects and Reasons of both Amendment Acts, the method of seeking to achieve that objective is inconsistent, i.e., the First Amendment Act seeks to do away with Section 9A (subject to transitioning and sun setting provisions) whereas the Second Amendment Act seeks to re-insert Section 9A;
vi. The effect of the Second Amendment Act, is also to re- insert Section 9A partially; it does not altogether delete the provisions of the First Amendment Act; as such, we have two different Acts which seek to achieve a common objective in a contrary and inconsistent manner operating together; this itself is arbitrary and unreasonable in law;
vii. The creation of the various classes of litigants (mentioned above) depending on when the challenge is filed, whether the issue is framed, and what the finding of the Court was and whether the party has challenged such finding in revision and/ or appeal is also completely arbitrary;
viii. Why for instance should Section 9A stand attracted merely because an issue has been framed, as opposed to other cases where it has already been raised but no issue is framed;
ix. Further, if the objective of the Second Amendment Act is to be furthered, why are revisions (against an order rejecting the jurisdictional challenge under Section 9A) by Section 3(2) of the First Amendment Act abated and the issue to be decided in the appeal against the final order in the suit. Logically if the provisions of Section 9A were ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 20/21 52 s 215.1 salutary, such revisions should be available to the party in revision (revision being a continuation of the original proceeding under Section 9A);
x. Lastly, if Section 9A is salutary and desirable, why should all litigants not have the benefit of it; why should only those who have issues framed which are pending for determination have the benefit of the provision.
xi. The judgement dated 12th December 2018 of the Aurangabad Bench of this Court in Writ Petition No.12607 of 2017 with Writ Petition No.14076 of 2017 is before the Second Amendment act was published and notified. The Government of Maharashtra does not appear to have considered the said judgement.
7 POWERS OF THE SINGLE JUDGE TO REFER A MATTER TO THE CHIEF JUSTICE :
7.1 Rule 28, Part II, Chapter I of the Bombay High Court (Original Side) Rules, 1980 reads as under :
"28. Reference to two or more Judges: - If it shall appear to any Judge either on the application of a party or otherwise, that a suit or matter can be more advantageously heard by a bench of two of more Judges, he may report to that effect to the Chief Justice, who shall make such order thereon as he shall think fit."
7.2 The provisions of Rule 28 provide that if any judge feels that a suit or matter can be more advantageously heard by a bench of two or more Judges, he may report to that effect to the Chief Justice, who shall make such order thereon as he thinks fit;
7.3 Rule 28 merely requires that the Judge should take the view that the matter can be more advantageously heard by a bench or two or ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 ::: Varsha 21/21 52 s 215.1 more Judges.
8 In my view, there are good reasons for a view that it would be advantageous to have the matter heard by a bench of two or more Judges, viz., the effect of the First Amendment Act and Second Amendment Act should be conclusively decided as a matter of public interest; and if a constitutional issue is to be raised with respect to these Acts it would have to be heard by a Division Bench.
9 As there are many suits in which this will have a bearing, the Registrar General to place this order immediately before the Hon'ble the Chief Justice for consideration and making such order thereon as he shall think fit.
(K.R. Shriram, J.) ::: Uploaded on - 28/02/2019 ::: Downloaded on - 21/03/2019 01:53:28 :::