Summary
Answering a reference concerning Maharashtra’s Section 9A of the Civil Procedure Code, the Court distinguished authority to entertain a suit from errors in exercising existing jurisdiction. Limitation did not fall within that provision’s narrow threshold inquiry. Preliminary determination could not involve a separate evidentiary trial of disputed facts, and the 2018 saving of pending issues did not enlarge the provision’s scope.
Issues
- Whether limitation could be tried as a preliminary jurisdictional issue under Maharashtra’s Section 9A.
- Whether disputed facts could be tried through evidence as a preliminary issue and whether the 2018 saving altered that position.
Provisions considered
- Section 9A, Code of Civil Procedure, 1908, as amended in MaharashtraJurisdiction to entertain meant threshold competence to receive the suit, not inability to grant relief because of limitation or res judicata. (¶¶ 5, 43, 44, 45, 49, 51)
- Order XIV Rule 2, Code of Civil Procedure, 1908A preliminary issue must be a pure question of law; limitation based on admitted facts may be considered under Rule 2(2)(b), but disputed facts requiring evidence cannot be separately tried as a preliminary issue. (¶¶ 9, 46, 47, 51, 54)
- Section 2, Code of Civil Procedure (Maharashtra Amendment) (Amendment) Act, 2018Saving pending Section 9A issues preserved only issues within that provision’s properly construed scope. (¶¶ 7, 77(b))
Held
- Jurisdiction to entertain is distinct from an error committed in exercising jurisdiction. A court with authority over the suit does not render its decree a nullity merely by deciding limitation incorrectly; appropriate appellate or revisional correction is distinct from collateral attack for inherent lack of jurisdiction. (¶¶ 33, 41, 42, 45, 68, 71, 77(a))
- Section 9A concerned threshold competence, not limitation or res judicata. Its jurisdictional inquiry could be decided as a pure legal question without recording evidence; mixed questions requiring proof of disputed facts could not be tried as preliminary issues under it or Order XIV Rule 2. (¶¶ 43, 44, 45, 47, 49, 50, 51, 54, 58, 77(a))
- Limitation apparent from the plaint may support rejection under Order VII Rule 11(d), using the plaint’s averments rather than the defence or other evidence. That distinct procedure did not broaden Section 9A. (¶¶ 62, 63, 64, 65(c))
- Foreshore Cooperative Housing Society did not state the law correctly, and the contrary Full Bench view in Meher Singh was overruled. The earlier Kamalakar decision excluding limitation from Section 9A was approved. Pending issues saved by the 2018 amendment remained subject to these limits. (¶¶ 10, 74, 75, 77(a), 77(b))
Result
The reference was answered. The matters were directed to be placed before an appropriate Bench for consideration on merits; the underlying disputes were not finally decided.