Bombay High Court
Mr. Palli Kishore Mavani And Anr vs Damodar Bhavan Co.Op. Housing Society ... on 7 March, 2025
2025:BHC-AS:10755
fa360-2017f
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.360 OF 2017
1. Palli Kishore Mavani, ]
aged about 53 years, ]
An adult, Indian Inhabitant, ]
Occu.: Business, ]
2. Dhanisha Kishore Mavani, ]
Aged about 41 years, ]
An adult, Indian Inhabitant, ]
Occu.: Business, ] ... Appellants
Versus
1. Damodar Bhavan Co.op. Housing Society ]
Limited, Damodhar Bhavan, ]
35, Vallabhbhai Road, Vile Parle (West), ]
Mumbai 400 056 ]
2. Pravin Dwarkadas Mavani (since deceaed) ]
aged about 80 years, Occ. Retired, ]
Indian Inhabitant, residing at ]
Flat No.D-36, Damodar Bhavan, ]
Vallabhbhai Road, Vile Parle (West), ]
Mumbai 400 056 ]
2.1 Shishir Pravin Mavani, ]
aged about 60 years, Adult, ]
Indian Inhabitant, having his address at ]
D/36, Damodhar Bhavan, ]
Vallabhbhai Road, Vile Parle (West), ]
Digitally
Mumbai 400 056 ]
signed by
SANJAY
SANJAY ASARAM
ASARAM MANDAWGAD
MANDAWGAD Date:
2025.03.07
14:44:43
+0530
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2.2 Mr.Neeta Manoj Rajani, ]
aged about 58 years, Adult, ]
Indian Inhabitant, having his address at ]
D/36, Damodhar House No.832, ]
Dayanand Bandodkar Marg, ]
Miramar Circle, Tiswadi, Panaji, ]
Goa - 403 001. ]
2.3 Mrs.Trupti Suketu Rai, ]
Aged about 51 years, Adult, ]
Indian Inhabitant, having his address at ]
Bapurbhai Vashi Road, ]
Opp. Nutan Nursing Home, ]
Vile Parle (West), Mumbai 400 056 ] ... Respondent.
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Mr. Harsh S. Trivedi for the Appellants.
Mr.Aditya Lele a/w. Ms.Aishwarya Gaikwad for Respondent No.1.
Ms. Nupur Desai i/by M/s.Markand Gandhi and Co. for legal heirs of
Respondent No.2.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : March 03, 2025
Pronounced on : March 07, 2025
JUDGMENT:
1. The First Appeal is at the instance of the original Plaintiff challenging the order dated 10th August, 2016 passed by the City Civil Court, Borivali Division, Dindoshi, Goregaon, Mumbai in S.C.Suit No.2432 of 2013, answering the preliminary issue of limitation framed under Section 9A of the Code of Civil Procedure, 1908 (for short, "CPC") against the Plaintiff, resulting in dismissal of the suit.
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2. S.C. Suit No.2432 of 2013 was filed for declaration that the consent terms dated 26th September, 1984 filed in Suit No.1782 of 1984 are based on misrepresentation and fraud and liable to be quashed and set aside. An Application below Exhibit "8" came to be filed by Defendant No.1-Society on 30 th August, 2013 seeking framing of preliminary issue under Section 9A of CPC as to the maintainability of suit in view of law of limitation and whether the suit is filed within the period of limitation.
3. The Application pleads that the suit claim is not maintainable as the declaration was made in the year 1990 and the prayer clause (a) seeks time barred declaration being beyond period of three years.
4. The Application came to be resisted by the Plaintiff claiming that the Defendant No.1 cannot claim any benefit from the consent terms which were not executed by the Defendant No.1. An Affidavit in rejoinder was filed by the Defendant No.1 seeking framing of preliminary issue of maintainability alongwith the issue of limitation. Vide order dated 30 th April, 2014 passed on Exhibit "8", the Trial Court passed the following order:
"Order on Exhibit 8. Heard both sides. It is submitted that the Plaintiff's claim is not within limitation. However as per Plaintiff disputed consent decree was never acted upon and it is not enforced. Same cannot be executed. However def submitted that after gap of so many years this suit is filed. Same is not within limitation. Keeping open all the relevant points, it is to be seen whether claim is within limitation or sa_mandawgad 3 of 16 ::: Uploaded on - 07/03/2025 ::: Downloaded on - 08/03/2025 10:28:18 ::: fa360-2017f not. For that purpose issue can be framed and same can be considered as preliminary issue. However regarding another point about maintainability of the suit, I am of the view that same point can be taken into account while determining suit finally. But is not proper to frame any preliminary issue about it. Hence Exh.8 is partly allowed. Issue is hereby framed as :-
Whether Plaintiff's claim is within limitation. This issue is hereby considered as preliminary issue. Both parties are given opportunity of hearing on this issue."
5. The Trial Court by order dated 30 th April, 2014 framed the following as preliminary issue under Section 9A of CPC:
"Whether the suit is filed within limitation ?"
6. After hearing oral arguments, the Trial Court held that the suit is not within limitation as well as not maintainable in view of Order XXIII Rule 3A of the CPC and hence, dismissed the same.
7. Learned counsel appearing for the Appellants would submit that the suit came to be dismissed on ground of limitation by framing preliminary issue under Section 9A when the provision was on statute book. He submits that the Hon'ble Apex Court in Nusli Neville Wadia vs. Ivory Properties, (2020) 6 SCC 557, has specifically held that the issue of limitation cannot be framed as a preliminary issue under Section 9A of the CPC. He submits that in view of the decision, the suit will have to be restored to file for adjudication.
8. Per contra, learned counsel appearing for the Respondent No.1 would point out paragraph 52 of the decision of Nusli Neville Wadia (supra) and would submit where the facts are not disputed, sa_mandawgad 4 of 16 ::: Uploaded on - 07/03/2025 ::: Downloaded on - 08/03/2025 10:28:18 ::: fa360-2017f the issue of limitation can be decided as preliminary issue. He submits that the facts of present case does not require evidence to be led as the averments in the plaint would make it evident that the suit is barred by limitation. He submits that admittedly the consent terms of the year 1984 were sought to be challenged in the year 2013 and therefore, the same could have been decided as preliminary issue under Section 9A.
9. The following point arises for determination:
(i) Whether the impugned decision on the preliminary issue of limitation framed under Section 9A of CPC by the Trial Court is required to be set aside in view of the decision in Nusli Neville Wadia vs. Ivory Properties reported in (2020) 6 SCC 557 ?
AS TO POINT NO.(i):
10. The Application and the Affidavit in Rejoinder preferred by the Defendant No.1 sought framing of two issues as preliminary issues under Section 9A of CPC, first the issue of limitation and secondly the issue of maintainability. Vide order dated 30th April, 2014, the Application came to be partly allowed and only issue of limitation was framed as preliminary issue, whereas the issue of maintainability was relegated to be decided with the other issues. Pursuant to the said order, the Trial Court framed the issue of limitation as preliminary issue under Section 9A of CPC.
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11. Section 9A of CPC was firstly introduced in the statute book in the year 1970 and was re-enacted by the CPC (Maharashtra Amendment Act, 1977) and read as under:
"9A. 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 be 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 the jurisdiction."
12. The State of Maharashtra promulgated an Ordinance on 27 th June, 2018 deleting Section 9A. The Ordinance was replaced by Code of Civil Procedure (Maharashtra Amendment) Act, 2018. Then came the second Amendment Act which replaced Clause (1) of Section 3 of the First Amendment. Relevant for our purpose is Section 3 (3) of the Amendment Act which reads as under:
"In all cases, where a preliminary issue framed under Section 9A has been decided, holding that the Court has no sa_mandawgad 6 of 16 ::: Uploaded on - 07/03/2025 ::: Downloaded on - 08/03/2025 10:28:18 ::: fa360-2017f jurisdiction to entertain the suit, and a challenge to such decision in 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 principal Act shall apply."
13. In the present case, the issue was framed and decided against the Plaintiff in the year 2016 i.e. prior to the deletion of Section 9A. According to the Amendment Act, the appellate proceedings are to continue as if Section 9A has not been deleted. Notwithstanding the amendments by which Section 9A came to be deleted, the legal position, as regards the pendency of determination of Section 9A before the Trial Court and the pendency of appellate proceedings against a decision rendered under Section 9A holding that the Court does not have the jurisdiction, is the same i.e. to proceed as if Section 9A has not been deleted. Thus the validity of the impugned judgment has to be tested as if Section 9A still continued on the statute book.
14. Section 9A provides that where an objection is taken to the jurisdiction of the Court to entertain the suit, the Court shall determine the issue of jurisdiction as a preliminary issue. Whether sa_mandawgad 7 of 16 ::: Uploaded on - 07/03/2025 ::: Downloaded on - 08/03/2025 10:28:18 ::: fa360-2017f the issue of jurisdiction will include an issue of limitation is the question answered by the Hon'ble Apex Court in Nusli Neville Wadia (supra), where the Hon'ble Apex Court was deciding the issue referred by Hon'ble Division Bench of the Apex Court doubting the correctness of the view taken in Foreshore Coop Housing Society Ltd vs Praveen D. Desai, (2015) 6 SCC 412, as to the interpretation of expression "jurisdiction of the Court to entertain such suit used in Section 9A of CPC". The Apex Court noted the view taken in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar, (2015) 7 SCC 321 that the issue of limitation cannot be decided as preliminary issue of jurisdiction and Foreshore Coop. Housing Society Ltd. (supra), which had opined that the word "jurisdiction" used in Section 9A is wide enough to include the issue of limitation.
15. The Hon'ble Apex Court noted that the word jurisdiction occurring in Section 9A is qualified with the words "to entertain the suit" and that the words" jurisdiction to entertain" has been used in a narrower sense, and, held in paragraphs 50, 51, 52, 53, 54 and 56 as under:
50. When we consider what colour expression "jurisdiction" has in Section 9-A, it is clearly in the context of power to entertain, jurisdiction takes colour from accompanying word "entertain" i.e. the court should have jurisdiction to receive a case for consideration or to try it. In case there is no jurisdiction, court has no competence to give the relief, but if it has, it cannot give such relief for the sa_mandawgad 8 of 16 ::: Uploaded on - 07/03/2025 ::: Downloaded on - 08/03/2025 10:28:18 ::: fa360-2017f reason that claim is time-barred by limitation or is barred by the principle of res judicata or by bar created under any other law for the time being in force. When a case is barred by res judicata or limitation, it is not that the court has no power to entertain it, but it is not possible to grant the relief. Due to expiry of limitation to file a suit, extinguishment of right to property is provided under Section 27 of the Limitation Act.
When court dismisses a suit on the ground of limitation, right to property is lost, to hold so the court must have jurisdiction to entertain it. The court is enjoined with a duty under Section 3 of the Limitation Act to take into consideration the bar of limitation by itself. The expression "bar to file a suit under any other law for the time being in force" includes the one created by the Limitation Act. It cannot be said to be included in the expression "jurisdiction to entertain" suit used in Section 9-A. The court has to receive a case for consideration and entertain it, to look into the facts constituting limitation or bar created by any other law to give relief, it has to decide the question on merits; then it has the power to dismiss the same on the ground of limitation or such other bar created by any other law. Thus, the meaning to be given to jurisdiction to entertain in Section 9-A is a narrow one as to maintainability, the competence of the court to receive the suit for adjudication is only covered under the provisions. The word "entertain" cannot be said to be the inability to grant relief on merits, but the same relates to receiving a suit to initiate the very process for granting relief.
51. The provision has been carved out under Section 9-A CPC to decide, question of jurisdiction to entertain, at the stage of deciding the interim application for injunction and the very purpose of enactment of the same was that the suits were being instituted without serving a notice under Section 80, which at the time of initial incorporation of provisions could not have been instituted without serving a notice of two months. There was a bar to institute a suit. It became a practice that after obtaining injunction, suit was allowed to be withdrawn with liberty to file fresh suit after serving the notice. To take care of misuse of the provisions, Section 9-A was introduced in the year 1970 and had been reintroduced again in 1977 to consider question of jurisdiction to entertain at the stage of granting injunction or setting aside. The provision has been inserted having the narrow meaning as at the stage of granting ex parte injunction; the question can be sa_mandawgad 9 of 16 ::: Uploaded on - 07/03/2025 ::: Downloaded on - 08/03/2025 10:28:18 ::: fa360-2017f considered. The written statement, set-off and counterclaim are not filed, discovery, inspection, admission, production and summoning of the documents stage has not reached and after the stages described above, framing of issues takes place under Order 14. As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.
52. In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976.
53. The suit/application which is barred by limitation is not a ground of jurisdiction of the court to entertain a suit. If a plea of adverse possession has been taken under Article 65 of the Limitation Act, in case it is successfully proved on facts; the suit has to be dismissed. However, it is not the lack of the sa_mandawgad 10 of 16 ::: Uploaded on - 07/03/2025 ::: Downloaded on - 08/03/2025 10:28:18 ::: fa360-2017f jurisdiction of the court that suit has to be dismissed on the ground of limitation, but proof of adverse possession for 12 years then the suit would be barred by limitation such question as to limitation cannot be decided as a preliminary issue.
54. What is intended by Section 9-A of the Code of Civil Procedure, 1908 (CPC) is the defect of jurisdiction. It may be inter alia territorial or concerning the subject-matter. The defect of jurisdiction may be due to provisions of the law. In Raghunath Das v. Gokal Chand [Raghunath Das v. Gokal Chand, AIR 1958 SC 827] , the execution of award of the decree was dismissed by the Court on the ground that decree was a nullity. The Court had no jurisdiction to pass a decree of the partition of agricultural land. It held that defect of the jurisdiction in the court that passed decree became attached to decree itself as dismissal of the suit was on account of the defect of jurisdiction. Thus, in our considered opinion, it is only the maintainability of the suit before the court which is covered within the purview of Section 9-A CPC as amended in Maharashtra.
56. Within the ken of provisions of Section 9-A CPC, jurisdiction of the court to entertain the suit has to be decided without recording of evidence. Recording of evidence is not contemplated even at the stage of framing issue under Order 14 Rule 2 much less it can be allowed at the stage of grant of injunction, it would be the grossest misuse of the provisions of the law to permit the parties to adduce the evidence, to prove facts with respect to a preliminary issue of jurisdiction to entertain a suit. In case it is purely a question of law, it can be decided within the purview of Section 9-A CPC as applicable in Maharashtra. The scope of Section 9-A is not broader than Order 14 Rule 2(2) CPC. The scope is a somewhat limited one. Two full-fledged trials by leading evidence are not contemplated in CPC, one of the preliminary issue and another on other issues. Until and unless the question is purely of law, it cannot be decided as a preliminary issue. In our opinion, a mixed question of law and fact cannot be decided as a preliminary issue, either under Section 9-A or under Order 14 Rule 2 CPC. Before or after its amendment of CPC concerning both provisions, the position is the same."
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16. The Hon'ble Apex Court has held that the suit which is barred by limitation is not a ground of jurisdiction of the Court to entertain the suit. The Hon'ble Apex Court upheld the view taken in Kamalakar Eknath Salunkhe (supra) that the issue of limitation cannot be decided as preliminary issue of jurisdiction under Section 9A.
17. The Apex Court has further held in paragraph 88 and 89 as under:
"88. Given the discussion above, we are of the considered opinion that the jurisdiction to entertain has different connotation from the jurisdictional error committed in exercise thereof. There is a difference between the existence of jurisdiction and the exercise of jurisdiction. The expression "jurisdiction" has been used in CPC at several places in different contexts and takes colour from the context in which it has been used. The existence of jurisdiction is reflected by the fact of amenability of the judgment to attack in the collateral proceedings. If the court has an inherent lack of jurisdiction, its decision is open to attack as a nullity. While deciding the issues of the bar created by the law of limitation, res judicata, the court must have jurisdiction to decide these issues. Under the provisions of Section 9-A and Order 14 Rule 2, it is open to decide preliminary issues if it is purely a question of law not a mixed question of law and fact by recording evidence. The decision in Foreshore Coop. HousingSociety Ltd. [Foreshore Coop. Housing Society Ltd. v. Praveen D. Desai, (2015) 6 SCC 412 : (2015) 3 SCC (Civ) 333] cannot be said to be laying down the law correctly. We have considered the decisions referred to therein, they are in different contexts. The decision of the Full Bench of the High Court of Bombay in Meher Singh [Meher Singh v. Deepak Sawhny, 1998 SCC OnLine Bom 452 : (1998) 3 Mah LJ 940] holding that under sa_mandawgad 12 of 16 ::: Uploaded on - 07/03/2025 ::: Downloaded on - 08/03/2025 10:28:18 ::: fa360-2017f Section 9-A the issue to try a suit/jurisdiction can be decided by recording evidence if required and by proper adjudication, is overruled. We hold that the decision in Kamalakar Eknath Salunkhe [Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar, (2015) 7 SCC 321 :
(2015) 3 SCC (Civ) 595] has been correctly decided and cannot be said to be per incuriam, as held in Foreshore Coop. Housing Society Ltd. [Foreshore Coop. Housing Society Ltd. v. Praveen D. Desai, (2015) 6 SCC 412 : (2015) 3 SCC (Civ) 333] "89. Section 2 of the Maharashtra Second Amendment Act, 2018 which provides that where consideration of preliminary issue framed under Section 9-A is pending on the date of commencement of the CPC, the said issue shall be decided and disposed of by the court under Section 9-A as if the provision under Section 9-A has not been deleted, does not change the legal scenario as to what can be decided as a preliminary issue under Section 9-A CPC, as applicable in Maharashtra. The saving created by the provision of Section 2 where consideration of preliminary issue framed under Section 9-A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018, can be decided only if it comes within the parameters as found by us on the interpretation of Section 9-A. We reiterate that no issue can be decided only under the guise of the provision that it has been framed under Section 9-A and was pending consideration on the date of commencement of the (Maharashtra Amendment) Act, 2018. The reference is answered accordingly."
18. The decision of Hon'ble Apex Court takes the issue of limitation out of purview of Section 9A of CPC and that being the enunciation of law, the Trial Court could not have decided the issue of limitation as preliminary issue under Section 9A of CPC.
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19. The reliance placed by Learned Counsel for Respondents on paragraph 52 of the decision in Nusli Neville Wadia (supra) to submit that issue of limitation can be decided as preliminary issue based on admitted facts is misplaced as it overlooks that the determination is in context of framing of preliminary issue under Order XIV Rule 2(2)(b) of CPC once the entire procedure of filing of written statement, discovery, inspection etc. is completed and the issues are framed under Order XIV of CPC.
20. Perusal of the impugned judgment would indicate that apart from the finding of limitation against the Plaintiff, the Trial Court has dismissed the suit on the ground of maintainability in view of Order XXIII Rule 3A of CPC. Despite the Trial Court partly allowing the application by the order of 30 th April, 2014 and framing only the issue of limitation, the Trial Court has proceeded to dismiss the suit summarily on ground of maintainability also which was not framed and argued. The finding on the maintainability cannot be sustained for this reason alone and Learned Counsel for Respondent No.1 has fairly not advanced any submission to support the finding of Trial Court on maintainability.
21. Even assuming arguendo that the issue of maintainability was considered by the Trial Court as preliminary issue, the objection to the maintainability was in the context of bar created by Order XXIII Rule 3A of CPC which provides that no suit shall lie to set aside the sa_mandawgad 14 of 16 ::: Uploaded on - 07/03/2025 ::: Downloaded on - 08/03/2025 10:28:18 ::: fa360-2017f decree on the ground that the compromise on which the decree id based was not lawful. The Hon'ble Apex Court in Nusli Neville Wadia (supra) has held that the word "jurisdiction" occurring in Section 9A is qualified with the words "to entertain the suit" and the Court has jurisdiction to entertain a suit when it has jurisdiction to receive it for consideration. In the present case, the issue of maintainability was not linked to the competence of the Court to receive the suit for adjudication as inherent defect in jurisdiction but as being barred by Order XXIII Rule 3A of CPC. Pertinently, the Hon'ble Apex Court in Nusli Neville Wadia (supra) considered the decision of Division Bench of Bombay High Court in Smithkline Beecham Consumer Healthcare vs Hindustan Lever Ltd. [(2002) SCC Online Bom. 1337]. In that case the Trial Court had framed preliminary issue under Section 9A as to whether the suit was not maintainable as being barred under Order II Rule 2 of CPC in view of pending suit before the Delhi High Court. The Division Bench held that the Court is required to consider the bar to the maintainability of the suit under Section 9A of CPC. The Hon'ble Apex Court has expressly overruled the said decision.
22. If the facts are admitted, it is open for the issue of maintainability to be decided as preliminary issue of law under Order XIV Rule 2 of CPC. However, the issue of maintainability which is not concerning the jurisdiction of the Court to receive the sa_mandawgad 15 of 16 ::: Uploaded on - 07/03/2025 ::: Downloaded on - 08/03/2025 10:28:18 ::: fa360-2017f suit for consideration cannot be decided as preliminary issue under Section 9A of CPC.
23. Point No.(i) is accordingly answered in favour of the Appellant.
24. Resultantly, the following order is passed:
- ORDER -
(a) First Appeal stands allowed.
(b) The impugned Judgment and order dated 10th August,
2016 passed by the Trial Court on preliminary issue of limitation framed under Section 9A of CPC is hereby quashed and set aside.
(c) S.C. Suit No.2432 of 2013 is restored to the file of Trial Court to be decided afresh.
25. In view of the disposal of Appeal, pending Interim/Civil Applications, if any, do not survive for consideration and stands dismissed.
[Sharmila U. Deshmukh, J.]
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