2019 (10) TMI 1314 - SUPREME COURT

Interpretation of statute - interpretation of expression 'jurisdiction of the Court to entertain such suit' used in Section 9A of Code of Civil Procedure - insertion by the Maharashtra Amendment Act, 1977 - It has been opined that the word "jurisdiction" Under Section 9A is wide enough to include the issue of limitation as the expression has been used in the broader sense and is not restricted to conventional definition under pecuniary or territorial jurisdiction.

HELD 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 Code of Civil Procedure 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 9A and Order XIV 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 Cooperative Housing Society Limited [2015 (4) TMI 1230 - SUPREME COURT ] 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 [1999 (9) TMI 978 - BOMBAY HIGH COURT ] holding that Under Section 9A 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 Kamlakar Shantaram [1975 (8) TMI 148 - SUPREME COURT ] has been correctly decided and cannot be said to be per incuriam, as held in Foreshore Cooperative Housing Society Limited.

Section 2 of Maharashtra Second Amendment Act, 2018 which provides that where consideration of preliminary issue framed Under Section 9A is pending on the date of commencement of the Code of Civil Procedure, the said issue shall be decided and disposed of by the court Under Section 9A as if the provision Under Section 9A has not been deleted, does not change the legal scenario as to what can be decided as a preliminary issue Under Section 9A, Code of Civil Procedure, as applicable in Maharashtra - The saving created by the provision of Section 2 where consideration of preliminary issue framed Under Section 9A 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 9A. We reiterate that no issue can be decided only under the guise of the provision that it has been framed Under Section 9A and was pending consideration on the date of commencement of the (Maharashtra Amendment) Act, 2018.

Let the matters be placed before an appropriate Bench for consideration on merits.