TMI Blog2019 (10) TMI 1314X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, the decision in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors., (2015) 7 SCC 321, taking contrary view, is per incuriam in view of the larger Bench decision in Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors, AIR 1966 SC 153 as well as other larger Bench decisions. 2. In Kamalakar Eknath Salunkhe (supra) this Court has opined that issue of limitation cannot be decided as a preliminary issue of jurisdiction Under Section 9, Reference has been made because of divergence in views. 3. The question arises for consideration as to the interpretation of expression 'jurisdiction of the Court to entertain such suit' used in Section 9A of Code of Civil Procedure. Section 9A had been introduced initially by the Code of Civil Procedure (Maharashtra Amendment) Act, 1970 and after that reintroduced with slightly modified terms by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977. After its repeal it had been re-enacted with effect from 19.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practice of granting an injunction without going into the question of jurisdiction has led to grave abuse of the provisions of law. Thus, it was proposed that in case question of jurisdiction is raised at the hearing of any applications for granting or setting aside an order granting interim relief, the Court shall determine that question first. The provisions of Section 9A, as initially introduced in 1970, are extracted hereunder: 9A. (1) If, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia that any amendments made in the Code by a State Legislature before the commencement of that Act shall except in so far as they are consistent with the Code as amended by the Amendment Act, stand repealed. Unless there is an authoritative judicial pronouncement, it is difficult to say which of the State Amendments are inconsistent with the Code as amended by the Central Amendment Act of 1976 and which consequently stand repealed. All the amendments made in the Code by the State Acts, except the amendment made in the proviso to Section 60(1) by the State Act of 1948, are useful and are required to be continued. The amendment made by the State Act of 1948 is no more required because it is now covered by the amendment made in Clause (g) of the said proviso by the Central Amendment Act of 1976. But to leave no room for any doubt whether the remaining State amendments continue to be in force or stand repealed, it is proposed that the old amendments should be repealed formally and in their places similar amendments may be re-enacted, with the assent of the President Under Article 254(2) of the Constitution, so that they may continue to prevail and be available in this State as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction. The provisions of Section 9A enable Court, dealing with the applications for granting or setting aside interim injunction or for appointment of a receiver or otherwise, to deal with the objection as to jurisdiction of the Court to entertain such suit , as preliminary issue and it shall not adjourn the matter to the hearing of the suit. Pending determination of the preliminary issue as to jurisdiction, the Court is competent as per Section 9A(2) to grant interim relief as it may consider necessary. 6. The State of Maharashtra on 27.06.2018 by the promulgation of Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018 has deleted Section 9-A of the Code (in its application to the State of Maharashtra). Section 3 of the Ordinance provided as under: 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 princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry issue, not the question of facts or a mixed question of law and facts, that too, when the case or part may be disposed of by a decision on the issue of law. 9. The amendment in 1976 in Code of Civil Procedure came into force on 1.2.1977. The amended Rule 2 of Order XIV is extracted hereunder: 2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. A significant departure has been made in the amended provisions contained in Order XIV Rule 2. Now it mandates the Court to pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. A perusal of the Statement of Objects and Reasons of the Amendment Act would clarify that Section 9-A talks of maintainability only on the question of inherent jurisdiction and does not contemplate issues of limitation. Section 9-A has been inserted in the Code to prevent the abuse of 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. 21. In the instant case, the preliminary issue framed by the trial court is about the question of limitation. Such issue would not be an issue on the jurisdiction of the court and, therefore, in our considered opinion, the trial court was not justified in framing the issue of limitation as a preliminary issue by invoking its power Under Section 9-A of the Code. The High Court has erred in not considering the statutory ambit of Section 9-A while approving the preliminary issue framed by the trial court and thus, rejecting the writ petition filed by the Appellant. 11. Where in the recent decision of Foreshore Cooperative Housing Society Limited (supra), it has been held that decision in Kamalakar Eknath Salunkhe (supra) is contrary to the law. The word j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court before proceeding with the suit and granting interim relief by way of injunction. 62. At the cost of repetition, we observe that Section 9-A 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 14 Rule 2 Code of Civil Procedure. In other words, the non-obstante Clause inserted by the Maharashtra Amendment Act of 1977 in Section 9-A and the express mandate of the section, the law intends to decide the issue relating to the jurisdiction of the court as a preliminary issue notwithstanding the provision contained in Order 14 Rule 2 Code of Civil Procedure. However, it is made clear that in other cases where the suits are governed by the provisions of Order 14 Rule 2 Code of Civil Procedure, it is the discretion of the court to decide the issue based on the law as a preliminary issue. It has also been observed that where the suits are governed by the provisions of Order XIV Rule 2, it is the discretion of the Court to decide the issue based on the law as a preliminary issue. SUBMISSIONS 12. It has been submitted by Shri F.S. Nariman, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a is the one which can be decided as a preliminary issue Under Section 9A of Code of Civil Procedure. It is submitted that Under Order XIII Rule 1, parties are required to produce the documents in original on or before the settlement of the issues. Under Order XII, parties can give notice for admitting the documents. Under Order XII Rule 6, even a judgment can be given on admitted facts. These are the stages before framing the issue Under Order XIV. 14. Consequently, Under Order XIV Rule 2(2), the Court while trying issues would be entitled to look into the admitted facts in any case. Under Order XIV Rule 4, the Court can examine a witness and documents before framing issues. Therefore, there is no good reason to prevent the Court from deciding issues of limitation based on documents produced, especially if they are admitted documents. 15. It is further submitted on behalf of Respondents that the expression jurisdiction used in Section 9A need not be qualified by the word inherent, that would amount to re-writing the Statute and would be against the contextual meaning to be given to Section 9A. The object for introducing the provision was not limited to objections about inher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. 17. The word jurisdiction is derived from Latin words Juris and dico, meaning I speak by the law and does not relate to rights of parties as between each other but to the power of the court. Jurisdiction relates to a class of cases to which a particular case belongs. Jurisdiction is the authority by which a judicial officer takes cognizance and decides the cases. It only presupposes the existence of a duly constituted court having control over subject-matter which comes within classification limits of the law under which court has been established. It should have control over the parties litigant, control over the parties' territory, it may also relate to pecuniary as well as the nature of the class of cases. Jurisdiction is generally understood as the authority to decide, render a judgment, inquire into the facts, to apply the law, and to pronounce a judgment. When there is the want of general power to act, the court has no jurisdiction. When the court has the power to inquire into the facts, apply the law, render binding judgment, and enforce it, the court has jurisdiction. Judgment within a jurisdiction has to be immune from collateral attack on the ground of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;legal shelter' -- a power to bind despite a possible error in the decision. The existence of jurisdiction does not depend on the correctness of its exercise. The authority to decide embodies a privilege to bind despite the error, a privilege which is inherent in and indispensable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it is wrong. In Malkarjun Bin Shidramappa v. Narahari Bin Shivappa, (1900) 27 IA 216 the executing court had, quite wrongly, held that a particular person represented the estate of the deceased judgment-debtor and put the property for sale in execution. The Judicial Committee said: In so doing the court was exercising its jurisdiction. It made a sad mistake, it is true, but a court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed. 23. In Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, (1972) 2 SCC 692, the word jurisdiction has been interpreted in the context of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction by coming to a wrong conclusion whether it is wrong in law or in fact. The question, whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable at the commencement, not at the conclusion, of the inquiry'. (Rex v. Bolten [1841] I Q.B. 66. Thus, a tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by determining any of those questions incorrectly, but it has no jurisdiction to entertain a claim for reinstatement or damages for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters...... (Halsbury's Laws of England, 3rd Edn. Vol. 11 page 59). The characteristic attribute of judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Court as regards the suit. Order VII Rule 11(d) deals with the rejection of the plaint on the ground being barred by law. Order VIII Rule 3-A(4) provides a Defendant to put forth the objection as to the jurisdiction. Order XIV Rule 2 distinguishes between preliminary issues relating to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Order XXIII Rule 3-A provides that no suit shall lie to set aside a compromise decree. There are various other provisions in which the expression has been used. IN RE: ENTERTAIN THE SUIT 28. When we consider provisions in Section 9A, the word jurisdiction is qualified with to entertain the suit, the expression used is 'jurisdiction to entertain the suit.' The Court has jurisdiction to entertain a suit when it has jurisdiction to receive it for consideration. If at the threshold, the Court cannot consider it, it can be said that the Court has no jurisdiction to entertain the case. It is like a suit is cognizable by Revenue Court, but it is filed in Civil Court, the Court cannot consider it nor can receive it for trial. It is like the jurisdiction to entertain the criminal ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a suit or proceeding is not thrown out in limine but the Court receives it for consideration and disposal according to law, it must be regarded as entertaining the suit or proceeding, no matter whatever the ultimate decision may be; and that a suit is to be regarded as not entertained by the Court only if it is thrown out at its inception and the Court does not decide it on its merits. The learned Judge further observed that Section 14 of the Limitation Act speaks of the inability of the Court to entertain a suit or proceeding on certain specific grounds, which are of a formal nature and that inability to entertain a suit means not inability to grant relief to the Plaintiff but inability to give him a trial at all. In our opinion when a suit is dismissed not because the Court had no jurisdiction to entertain it, or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not one recognised by law as legal in its initiation, then clearly Section 14 of the Act is not attracted to such a suit. This view is amply supported by the cases cited by the learned Counsel for the Appellant and numerous other cases. Now, here, the Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The same view had been taken by the said High Court in Dhoom Chand Jain v. Chamanlal Gupta, AIR 1962 All 543 and Haji Rahim Bux and Sons v. Firm Samiullah and Sons, NUAIR 1963 All 320 and again in Mahavir Singh v. Gauri Shankar, AIR 1964 All 289. These decisions have interpreted the expression entertain as meaning 'adjudicate upon' or 'proceed to consider on merits.' This view of the High Court has been accepted as correct by this Court in Lakshmiratan Engineering Works Ltd. v. Asst. Comm., Sales Tax, Kanpur, AIR 1968 SC 488. We are bound by that decision, and as such, we are unable to accept the contention of the Appellant that Clause (b) of the proviso did not apply to the present proceedings. The word 'entertain' came up for consideration in Hindusthan Commercial Bank Ltd. (supra) in the context of Order XXI Rule 90 as amended by the Allahabad High Court. The expression entertain has been held to mean to adjudicate upon or proceed to consider on merits. IN RE: DIFFERENCE BETWEEN EXISTENCE AND EXERCISE OF JURISDICTION 33. There is a difference between the existence of jurisdiction and the exercise of jurisdiction. In case jurisdiction is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis supplied) 36. In a case, jurisdictional facts, as well as adjudicatory facts, may arise. When jurisdictional facts to entertain are missing, the court/tribunal cannot act at all. In the case of adjudicatory facts, the court can proceed with the trial of the case exercising jurisdiction, and the same implies that the court has the jurisdiction to deal with the matter, that is called the power to examine on merits. Adjudication is the power to proceed to consider on merits. 37. In Bhai Jai Kishen Singh v. Peoples Bank of Northern India (in liquidation) through Bhagwati Shankar, Official Liquidator, AIR 1944 Lah 136, it has been observed that jurisdiction issue is one like preliminary issue not where the proceedings were dismissed on merits. In Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors., (1974) 3 SCC 415 in the context of word jurisdiction, this Court observed thus: 28. We think that neither the decision of this Court in Baidyanath Panjiar v. Sita Ram Mahto, (1969) 2 SCC 447 which took the view that violation of Section 23(3) of the 1950 Act in entering or deleting the names of persons in the electoral rolls after the last date for making nomination relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at exclusion of the jurisdiction of the civil courts is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with, or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word jurisdiction has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter, it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction. (emphasis supplied) 39. Again, in Official Trustee, West Bengal v. Sachindra Nath Chatterj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to carry the judgments into effect ; the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution. (emphasis supplied) 40. In National Thermal Power Corporation Ltd. v. Siemens Atkeingesellschaft, (2007) 4 SCC 451, the question came up for consideration before a Division Bench of the Court concerning what is a jurisdictional question and whether declining to go into the merits of the claim would amount to a refusal to exercise jurisdiction. The Court held that declining to go into the merits of a claim in a particular case may amount to a refusal to exercise jurisdiction. What is jurisdictional question and jurisdiction was also considered by this Court. The question of limitation involving the question of jurisdiction of the Court or Tribunal came up for consideration, as a preliminary objection was raised as to maintainability of the appeal. The relevant portion of discussion is extracted hereunder: 17. In the larger sense, any refusal to go into the merits of a claim may be in the realm of jurisdiction. Even the dismissal of the claim as barred by limitation may, in a sense touch on the jurisdiction of the court or tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the former Code of Civil Procedure, which was replaced by Section 115 of the Code of 1908: The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it. Whether they decided rightly or wrongly, they had jurisdiction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity. In Balakrishna Udayar v. Vasudeva Aiyar, (1917) LR 44 IA 261, 267 the Board observed: It will be observed that the Section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The Section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. In N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, (1948-49) LR 76 IA 73, the Judicial Committee said that Section 115 empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or, in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the Rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity. The dicta of the majority of the House of Lords in the above case would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of jurisdiction. The effect of the dicta, in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s jurisdiction to decide the issue. In case it has no jurisdiction, it cannot decide such an issue on merits at all. IN RE: JURISDICTION TO ENTERTAIN UNDER SECTION 9A, CODE OF CIVIL PROCEDURE 43. The word jurisdiction in Section 9A is qualified with expression to 'entertain' the suit. Thus, it is apparent that the scope of Section 9A has been narrowed down by the legislature as compared to the provisions contained in Order XIV Rule 2(2) by not including the provisions as to a bar created by any other law for the time being in force. 44. Since the expression used in Section 9A as incorporated in Maharashtra, is jurisdiction to entertain that is in a narrower sense and its purport cannot be taken to be comprehensive as laid down in Foreshore Cooperative Housing Society Limited (supra). 45. When we consider what colour expression jurisdiction has in Section 9A, 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the year 1970 and had been re-introduced 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 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 XIV. As per Order XIV 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 XIV Rule 2. In Order XIV Rule 2(1), the Court may decide the case on a preliminary issue. It has to pronounce the judgment on al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count 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 Code of Civil Procedure as amended in Maharashtra. 50. Reliance has been placed on the provisions of Section 3 of the Limitation Act to submit that the Court cannot proceed with the suit which is barred by limitation although limitation has not been set up as a defence. No doubt about it that Section 3 of the Act provides that subject to the provisions contained in Sections 4 to 24 of the Limitation Act, every suit instituted, appeal preferred, and the application made after the prescribed period shall be dismissed, it nowhere provides that Court has no jurisdiction to deal with the matter. Until and unless Court has the jurisdiction, it cannot proceed to dismiss it on the ground of limitation Under Section 3. 51. Within the ken of provisions of Section 9A, Code of Civil Procedure 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 XIV Rule 2 much less it can be allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as comprehensive as that of Order XIV Rule 2. However, the concept of Order XIV Rule 2 with respect to what can be treated as preliminary issue will be applicable Under Section 9A only in case question of jurisdiction to entertain arises, i.e., if it can be decided purely as question of law, at the stage contemplated Under Section 9A, not in case if it is a mixed question of law and fact, no evidence can be recorded to decide the question Under Section 9A, Code of Civil Procedure. 55. In Abdul Rahman v. Prasony Bai and Anr., (2003) 1 SCC 488, the provisions of Order XIV Rule 2 came up for consideration. Where facts are admitted, suit can be disposed of on preliminary issue and no particular procedure need be followed by the Court. It has been held that in particular, if facts are admitted, the issue of res judicata and constructive res judicata and also maintainability of the suit should be decided as a preliminary issue. Following observation is relevant: 21. For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection to territorial jurisdiction before an appellate or revisional court, two conditions precedent must be fulfilled: (i) The objection must be taken in the court of first instance at the earliest possible opportunity; and (ii) There has been a consequent failure of justice. This provision which the legislature has designedly adopted would make it abundantly clear that an objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. Hence, it has to be raised before the court of first instance at the earliest opportunity, and in all cases where issues are settled, on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both these conditions have to be satisfied. 14. The learned Counsel appearing on behalf of the Respondents has submitted that the objection as to the lack of territorial jurisdiction was raised in the written statement before the trial court. But evidently, the suit was decreed ex parte after the Respondents failed to participate in the proceedings. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is an issue of law requiring no evidence to be adduced. Various High Courts have taken a similar view in several decisions in Sunni Central Waqf Board and Ors. v. Gopal Singh Vishrad and Ors., AIR 1991 All 89, Venkatesh R. Desai v. Smt. Pushpa Hosmani and Ors., ILR 2018 Kar 5095, Prithvi Raj v. Munnalal, 1957 RLW 323, Bhag Singh v. Nek Singh, State Trading Corporation of India Ltd. v. Government of the Peoples Republic of Bangladesh, ILR (1997) Del 229, Naresh Chandra Das v. Gopal Chandra Das, AIR 1991 Cal 237, Taj Kerala Hotels Resorts Ltd. v. Easytec India Pvt. Ltd., Madhabananda Govindasamy v. Manickam and Ors., 2016-1-L.W. 49, Angsley Investment Ltd. v. Turus Shipping Service and Ors., AIR 2007 Guj 23; Chandrama Singh v. (D) through LRs v. Ram Kishore Agrawal and Ors., 2016 SCC OnLine Chh 1740, Naresh Chandra Gautam v. Chhote Khan , Ramagya Tiwari v. Shib Kumar Sah and Ors., 2018 SCC OnLine Jah 578, Lalchand Sha and Ors. v. Kalabati Devi and Ors., (2008) 2 Gau LR 561 and J Mnthamma and Anr. v. Bayya Iiglamma and Ors. 61. In Vaish Aggarwal Panchayat v. Inder Kumar and Ors., AIR 2015 SC 3357, the question came up for consideration of rejection of the plaint Under Order VII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts for rejection of the plaint Under Order VII Rule 11(d). In the case of a disputed question of fact, the question of limitation cannot be decided as a preliminary issue without a decision on facts based on the evidence that has to be adduced by the parties. The Court has no jurisdiction Under Order XIV Rule 2 to decide a mixed question of law and facts as a preliminary issue. Following observations have been made: 13. Sub-rule (2) of Order 14 Rule 2 Code of Civil Procedure lays down 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 an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 and it was held as under (SCR p. 421) Under Order 14 Rule 2, Code of Civil Procedure 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed-brother of the Plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the Appellant herein-original Defendant who filed the suit in the year 2001 for partition, and the said suit was filed against his brothers to which the Plaintiff was joined as Defendant No. 10. It appears that the summon of the suit filed by the Defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the Defendant No. 10-Plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e., the period from 1981 till 2001/2003, the suit property was mortgaged by the Appellant herein-original Defendant and the mortgage deed was executed by the Defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the Plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure do not advance the submissions raised on behalf of Respondents. In case averments in the plaint indicate that suit is barred, it is liable to be rejected before the stage of Section 9A of Code of Civil Procedure comes. Thus, the stage at which Order VII Rule 11(d) has to be applied, is at the threshold and the scope of Section 9A is somewhat limited and different. Though the scope of rejection of plaint Under Order VII Rule 11(d) is broad enough which includes rejection of the plaint in case any law bars it, however, only the averments in the plaint have to be seen, nevertheless Section 9A is limited in its operation as to the jurisdiction of the Court to entertain a suit. IN RE: DECISION IN FORESHORE COOPERATIVE HOUSING SOCIETY LIMITED 66. Now we consider decision relied on Foreshore Cooperative Housing Society Limited (supra) in which decision of the Court in Pandurang Dhondi Chougule (supra) and other decisions have been relied on. 67. In Pandurang Dhondi Chougule (supra), a decision of Constitution Bench of this Court, the question of jurisdiction came up for consideration in the context of provisions contained in Section 115 of Code of Civil Procedure to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15, Code of Civil Procedure, the Constitution Bench has observed that plea of limitation is a plea of law, which concerns the jurisdiction of the court which tries the proceedings. The Constitution Bench has not laid down that question of limitation, and res judicata have to be tried as a preliminary issue. It cannot be disputed as observed by this Court that the question of res judicata and limitation pertains to the question of jurisdiction of the Court to pass a decree in the proceeding. In case proceeding is barred by limitation, the Court has no jurisdiction to pass a decree. The court had inherent jurisdiction and in the course of proceeding how the jurisdiction is to be exercised and what amounts to a case of a wrong decision in the course of the exercise of jurisdiction is another colour in which jurisdictional error has been gauged in Pandurang Dhondi Chougule (supra). It was not a case of want of the existence of jurisdiction to decide the issue. The question of limitation and res judicata, are to be decided within the realm of exercise of jurisdiction following the law. The finding on the pleas mentioned above may oust the jurisdiction of the Court to pass a decree as ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh bound to decide right may decide wrong; and that even though it decided wrong, it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject matter, and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong, and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned Counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85 and contended that since the court is bound under the provisions of Section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that the court has to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cised by the High Court in a case in which no appeal lies to it from the decision of a subordinate court if it appears to it that the subordinate court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity. The exercise of revisional jurisdiction is thus confined to questions of jurisdiction. While in a first appeal the court is free to decide all questions of law and fact which arise in the case, in the exercise of its revisional jurisdiction the High Court is not entitled to reexamine or reassess the evidence on record and substitute its findings on facts for those of the subordinate court. In the instant case, the Respondents had raised a plea that the Appellant's application Under Rule 13 of Order IX was barred by limitation. Now, a plea of limitation concerns the jurisdiction of the court which tries a proceeding, for a finding on this plea in favour of the party raising it would oust the jurisdiction of the court. In determining the correctness of the decision reached by the subordinate court on such a plea, the High Court ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) 12 SCC 577, in which question arose for consideration as to the finding of the trial court which held that the suit was barred by limitation though the judgment was reversed by the First Appellate Court. The previous finding was not dealt with by the First Appellate Court or the High Court. This Court held that plea of limitation maybe a mixed question of law and facts. This Court considered the provisions of limitation and Order VII Rule 11(d) and observed that in case of suit appears from the statement made in the plaint to be barred by law of limitation, the question of law as to jurisdiction of a Court goes to the very root of the court's jurisdiction to entertain and decide a matter as otherwise decision rendered without jurisdiction will be a nullity. The expression nullity used by Division Bench in Kamlesh Babu (supra) cannot be said to be in the context of the limitation, but the question of jurisdiction when the Court has no power to try the suit. In our opinion, a wrong decision on the question of limitation will not render judgment a nullity. With great respect we observe that the expression used by this Court in para 23 that wrong decision on the question of limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to a suit and to adjudicate or exercise any judicial power over them ; the power to hear, determine and pronounce judgment on the issues before the court ; the power or authority which is conferred upon a court by the legislature to hear and determine causes between parties and to carry the judgments into effect ; the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution .' (Mukherjee, Acting C.J., speaking for the Full Bench of the Calcutta High Court in Hirday Nath Roy v. Ram Chandra Barna Sarma, 1920 SCC OnLine Cal 85: ILR (1921) 48 Cal 138, SCC OnLine Cal) In Indian Farmers Fertilizer Cooperative Limited (supra), it is further observed that if the Court having jurisdiction, has decided the question wrongly, it cannot be said that Court had no jurisdiction to do so and erroneous decision on question of jurisdiction or res judicata would not oust the jurisdiction of the Court and render the decision a nullity liable to collateral attack. 74. The decisions of Bombay High Court have also been relied upon by the learned senior Counsel appearing for the Respondents. In Smithkline Beecham Consumer Healthcare (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be a statutory provision, which causes great hardship or inconvenience to either the party concerned, or to an individual, but the court has no choice but to enforce it in full rigour. It is a well-settled principle of interpretation that hardship or inconvenience caused cannot be used as a basis to alter the meaning of the language employed by the legislature if such meaning is clear upon a bare perusal of the statute. If the language is plain and hence allows only one meaning, the same has to be given effect to, even if it causes hardship or possible injustice. [Vide CIT (Ag) v. Keshab Chandra Mandal AIR 1950 SC 265 and D.D. Joshi v. Union of India (1983) 2 SCC 235.] 24. In Bengal Immunity Co. Ltd. v. State of Bihar AIR 1955 SC 661 (SCC p. 685, para 43) it was observed by a Constitution Bench of this Court that, if there is any hardship, it is for the legislature to amend the law, and that the court cannot be called upon to discard the cardinal Rule of interpretation for the purpose of mitigating such hardship. If the language of an Act is sufficiently clear, the court has to give effect to it, however inequitable or unjust the result may be. The words, dura lex sed lex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are not part of it, especially when a literal reading of the same produces an intelligible result. (Vide Nalinakhya Bysack v. Shyam Sunder Haldar, AIR 1953 SC 148, Sri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459, M. Pentiah v. Muddala Veeramallappa, AIR 1961 SC 1107, Balasinor Nagrik Coop. Bank Ltd. v. Babubhai Shankerlal Pandya (1987) 1 SCC 606 and Dadi Jagannadham v. Jammulu Ramulu, (2001) 7 SCC 71. SCC pp. 78-79, para 13.) 28. The statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The courts have to administer the law as they find it, and it is not permissible for the court to twist the clear language of the enactment in order to avoid any real or imaginary hardship which such literal interpretation may cause. 29. In view of the above it becomes crystal clear that under the garb of interpreting the provision, the court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation. Further, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (supra) 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 (supra) 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 (supra) has been correctly decided and cannot be said to be per incuriam, as held in Foreshore Cooperative Housing Society Limited (supra). 77. (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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