LexFORESHORE CO-OPERATIVE HOUSING SOCIETY LIMITED versus PRAVEEN D.DESAI (DEAD) THR. LRS. AND OTHERS
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[2015] 5 S.C.R.1075 FORESHORE CO-OPERATIVE HOUSING SOCIETY A LIMITED v. PRAVEEN D.DESAI (DEAD) THR. LRS. AND OTHERS (Civil Appeal No. 7732 of 2011) APRIL08, 2015 [M.Y. EQBALAND KURIAN JOSEPH, JJ.] B c Code of Civil Procedure, 1908: s.9A [as inserted by CPC (Maharashtra Amendment) Act, 1977]- Scope of s. 9A vis-a-vis Order XIV r. 2 - Preliminary objection to the jurisdiction of Court to entertain a suit whether include an D objection with regard to /imitation- Held: s.9A of Maharashtra Amendment Act is a complete departure from the procedure provided u/Order XIV r.2- Non obstante clause inserted by Maharashtra Amendment Act in s.9A and express mandate of the section is to decide the issue relating to jurisdiction of E the Court as a preliminary issue notwithstanding the provision contained in Order XIV r.2- Limitation - Jurisdiction. Words and phrases: Word Jurisdiction' - Meaning of - Discussed. Dismissing the appeals, the Court F HELD: 1. Order XIV Rule 2, CPC confers power upon the Court to pronounce judgment on all the issues. But there is an exception to that general Rule i.e., where G 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 the issue of law, it may try that issue first if that issue relates to the jurisdiction 1075 H 1076 SUPREME COURT REPORTS [2015] 5 S.C.R. A of the Court or a bar to the suit created by any law. A comparative reading of Order XIV Rule 2 as it existed earlier to the amendment and the one after amendment would clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made B permissible only in limited cases. In the un-amended Code, the categorization was only between issues of law and of fact and it was mandatory for the Court to try the issues of law in the first instance and to postpone the settlement of issues of fact until after the issues of law C had been determined. On the other hand, in the amended provision there is a mandate to the Court that notwithstanding that a case may be disposed of on a preliminary issue, the Court has to pronounce judgment 0 on all the issues. The only exception to this is contained in sub-rule (2). This sub-rule relaxes the mandate to a limited extent by conferring discretion upon the Court that if the Court is of opinion that the case or any part thereof may be disposed of "on an issue of law only", it E may try that issue first. The exercise of this discretion is further limited to the contingency that the issue to be so tried must relate to the jurisdiction of the Court or a bar to the suit created by a law in force. [Paras 32, 34] [1095- F G H F-G; 1096-C-F] Mathai vs. Varkey Varkey (1964) 1 SCR 495; Ramesh B. Desai and Ors. vs. Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638: 2006 (3) Suppl. SCR 414; Official Trustee WB. vs. Sachindra (1969) SC 823; National Thermal Power Corporation Ltd. vs. Siemens Atkeingesellschaft (2007) 4 SCC 451: 2007 (3) SCR 399; ITW Signode India Ltd vs. Collector of Central Excise (2004) 3 SCC 48: 2003 (5) Suppl. SCR 751; Manick Chandra Nandy vs. Debdas Nandy and Ors. (1986) 1 SCC 512; Kamlesh Babu and Others vs. FORESHORE CO-OPERATIVE HOUSING SOC. LTD. v. 1077 PRAVEEN D.DESAI (D) THR. LRS. Lajpat Rai Sharma and Ors. (2008) 12 SCC 577: 2008 A (6) SCR 653; Meher Singh vs. Deepak Sawhny 1998 (3) MhLJ 940: 1999 (1) Born CR 107 - referred to. 2. From reading of the aims and object of the Bill whereby Section 9A was inserted, the term 'jurisdiction' B is used in a wider sense and is not restricted to the conventional definition either pecuniary jurisdiction or territorial jurisdiction. The term 'jurisdiction' is a term of art; it is an expression used in a variety of senses and draws colour from its context. Therefore, to confine the C term 'jurisdiction' to its conventional and narrow meaning would be contrary to the well settled interpretation of the term. [Paras 40 to 41) [1099-B-D] 3. In a case where the Court has no jurisdiction; it D cannot confer upon it by consent or waiver of the parties. Section 3 of the Limitation Act, 1963 clearly provides that every suit instituted, appeal preferred and application made after the prescribed period of limitation, subject to the provisions contained in Sections 4 to 24, shall be E dismissed although the limitation has not been set up as a defence. [Para
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