Division bench decision of supreme court on 9a cpc
rajesh karnik
(Querist) 13 January 2016
This query is : Resolved
Respected Sir,
the Division Bench of supreme court while interpreting the provisions of 9A of CPC 1908 in Foreshore Cooperative Housing Society Limited vs Praveen D Desai (D) Thr.Lrs. & Ors on 8 April, 2015 held that the
the provision of Section 9A as introduced by (Maharahtra Amendment) Act is mandatory in nature. It is a complete departure from the provisions of Order XIV, Rule 2, C.P.C.
Mr. Nariman, learned senior counsel appearing for the appellant put heavy reliance on the decision in the case of Ramesh B. Desai vs. Bipin Vadilal Mehta, (2006) 5 SCC 638, for the proposition that a plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. In our considered opinion, in the aforesaid decision this Court was considering the provision of Order XIV Rule 2, CPC. While interpreting the provision of Order XIV Rule 2, this Court was of the view that the issue on limitation, being a mixed question of law and fact is to be decided along with other issues as contemplated under Order XIV, Rule 2, CPC. As discussed above, Section 9A of Maharashtra Amendment Act makes a complete departure from the procedure provided under Order 14, Rule 2, CPC. Section 9A mandates the Court to decide the jurisdiction of the Court before proceeding with the suit and granting interim relief by way of injunction.
However, it is made clear that in other cases where the suits are governed by the provisions of Order XIV Rule 2 CPC, it is the discretion of the court to decide the issue based on law as preliminary issue.
It means that when any objection is taken under 9 - A of cpc which goes to the root of jurisdiction of court, It is mandatory for the court to frame & decide preliminary issue even if it is a mixed question of fact & law ?
P. Venu
(Expert) 14 January 2016
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