[64
of 1977] [09th
December 1977] An Act further to amend the
Code of Civil Procedure. 1908, in its application to the State of Maharashtra WHEREAS extensive amendments
have been made in the Code of Civil Procedure, 1908, by the Code of Civil
Procedure (Amendment) Act, 1976, enacted by Parliament; AND WHEREAS section 97 of
this Amendment Act of 1976 provides inter alia that any amendments made in the
said Code by a State Legislature before the commencement of that Act shall,
except in so far as they are consistent with the said Code as amended by that
Act, stand repealed; AND WHEREAS certain
amendments have been made in the said Code in its application to the State of
Maharashtra, or a part thereof, by the State Legislature; AND WHEREAS it is expedient
to delete from the said Code in its application to this State the amendments
made by the State Legislature which have become inoperative or redun dant and
to leave no room for any doubt, to re-enact such of them which may be
inconsistent with the said Code as amended by the Amendment Act of 1976 but
which are considered necessary in this State; AND WHEREAS it is therefore
expedient further to amend the said Code in its application to this State for
the purposes hereinafter appearing; It is hereby enacted in the Twenty-eighth
Year of the Republic of India as follows. For Statement of Objects and
Reasons, see Maharashtra Government Gazette, 1977, Part V, Extraordinary, pp.
350-51. This Act may be called the
Code of Civil Procedure (Maharashtra Amendment) Act, 1977. The Code of Civil Procedure
(Maharashtra Amendment) Act. 1970 is hereby repealed; and section 9A inserted
by that Act in the Code of Civil Procedure, 1908, in its application to the
State of Maharashtra (here in after referred to as the principal) Act shall
also stand repealed, without prejudice to the validity anything previously done
or omitted to be done under that section. After section 9 of the
principal Act, the following section shall be inserted, namely : "9A.
Where at the hearing of application relating to interim relief in a suit,
objection to jurisdiction is taken, such issue to be decided by the Court as a
preliminary issue.- (1)
Not with standing anything contained in this
Code or any other law for the time being in force, if, at the hearing of any
application for granting or setting aside an order granting any interim relief,
whether by way of stay, 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 suit. (2)
Notwithstanding anything contained in
sub-section (1), at the hearing of any such application, the Court may grant
such interim relief as it may consider necessary, pending determination by it
of the preliminary issue as to the jurisdiction". NOTES Section 9 refers to suits in
general, in section 9 of the Civil Procedure Code, jurisdiction of the Civil
Courts is elaborated. Categories of
Jurisdiction.-Jurisdiction are of various nature and they are as follows :
Subject matter, Consensual, Local, Personal, pecuniary. Appellate, etc. Meaning of
Jurisdiction.-Jurisdiction consists of taking of a case involving the
determination of some jural relation in ascertaining the essential points of it
and in pronouncing upon them. It means the legal authority
to administer justice according to the means which the law has provided and
subject to the limitations imposed by that law upon the Judicial authority. Inherent powers of the
Court.-A Court is always clothed with jurisdiction to see whether it has
jurisdiction to try the cause submitted to it. The power and Jurisdiction of a
Civil Court to decide a particular matter rests on the general law.
Jurisdiction is the power to hear and determine, it does not depend upon
regularly of the exercise of that power or upon correctness of the decision
pronounced, for the power to decide necessarily carries with it the power to
decide wrongly as well as rightly. AIR 1962 SC 1621. Preliminary Issues.-Whether
Court has Jurisdiction or not has to be decided with reference to the initial
assumption of jurisdiction by the Court. AIR 1062 SC 1621. An inquiry, however whether
Court has jurisdiction or not, in any particular case, is not as exercise of
Jurisdiction, over the case itself. It is really an investigation as to whether
the conditions of cognizance are satisfied. AIR 1953 SC 16(19). In which case provisions of
section 9A are attracted.-Where the Court is of the opinion that the case or
any part of it can be disposed of only on an issue of law, it may try that
issue first if it relates to the jurisdiction of the Court or a bar created to
the suit by any law for the time being in force. Section 9A is a departure from
the procedure for deciding a preliminary issue under order 14, rule 2 because
it is prefaced by a non obstante clause which gives it effect notwithstanding
anything contained to the contrary in the Code or in any law for the time being
in force. Fedroline Antoney Joseph v. Vinod Vishaji Dharod and Hazol Rodriques
and Ors. 2002 (9) L. J. Soft 86. If the cause of action having arisen on or
about 4.10.1976 and as per the statutory provision, on that date, if there was
no bar to the filing of the .suit, the amendment being not retrospective, certainly
the suit would lie. The order passed by the Trial Court under order VII. rule
11 of rejecting the plaint, therefore, cannot be sustained. Anant Mahadeo
Godbole v. Achut Ganesh Godbole & Ors., 2000(1) Bom. C. R. 121 : 2000 (8)
L.J. Soft 53. Objections to the
jurisdiction of the Civil Court.-Where the jurisdiction of the Court is
challenged, it cannot refuse to enquire into question on which its jurisdiction
depends.- AIR 1962 SC 1621. In fact, a judicial
investigation of all allegations and facts, sufficient to guide the Court,
should precede the admission or negation of jurisdiction and on question of
hardship or no consideration of technicality can be permitted to affect the
judgment. The presumption is in favour
of giving jurisdiction to the highest Court, and it is the duty of party
alleging want of jurisdiction to prove his allegation. Scope of the
Jurisdiction.-As explained in C.P.C. section 15, the jurisdiction of a Court to
try a suit is of three kinds viz. (a) with reference to the nature of the suit,
(b) pecuniary jurisdiction, (c) territorial jurisdiction. Where the Court has
jurisdiction to try a suit. It has jurisdiction to decide every question
arising out of it and its decree, thoughtly may be wrong, is binding on the
parties until It is reversed in some manner provided by Law.- (1901) 25 Bom.
337. But where a suit is
instituted In a Court having no jurisdiction to try to it, the defect is a
fatal one and cannot be curred by its subsequent transfer to a Court, having
jurisdiction. See section 21 of C.P.C. for
qualification to this rule. Once Jurisdiction is
acquired by a Court over a suit, it continues in all matters in the suit that
are brought within its cognizance by the Civil Procedure Code. The Civil Court takes
cognizance of the matter because it possesses jurisdiction to do so under
section 9 of Civil Procedure Code. If there is no jurisdiction
of the Court.-Generally, in such cases, the judgment and order of the Court,
even though they are precise, certain and technically correct are merely
nullities and not only voidable but are void. This general rule is subject to
two exceptions i.e. section 12 of the Civil Procedure Code and section 11 of
the Suits Valuation Act. There is a difference
between exercise of jurisdiction and the existence of the jurisdiction. When condition, pecuniary,
territorial and subject matter with reference to jurisdiction are fulfilled,
the Court can be said to have jurisdiction. Under section 9A, it is the
duty of the Court to hear the application forthwith, for granting or setting
aside the order granting an interim relief and determine the question of the
jurisdiction of the Court wherever it is taken.- AIR 1974 Bom. 288 (290). The section is mandatory.
The issue as to jurisdiction of the Court must be decided expeditiously as a
preliminary issue.- 1980 Mah. L. J. 203. However, clause (21 of
section 9A. refers to the situation under which even during this interim period
till the adjudication of the preliminary issue, the Court is empowered to grant
interim relief on interim basis.- AIR 1982 Bom. 263. See for the situation arises
at the time of Notice of Motion when the question of jurisdiction is raised.-
AIR 1977 Bom. 35. Section 9-A. Confers
jurisdiction upon the Courts to pass interim orders and to grant interim
reliefs even though Courts has no jurisdiction to entertain and try the suit as
such.- Kapli P. Mohmed v. Anthony, (1984) 2 Bom. C. R. 199. While deciding the scope and
the applicability of section 9A, it was held that the scheme of the said
provision unmistakably indicates that the Court is expected to determine the
objection to jurisdiction as an issue in the suit which should be treated as a
preliminary issue and having regard to the concept of pleading, the issues
arising therefrom and the determination of such issues on evidence and on the
anvil of procedure as prescribed under the Code, it would be clear that the
determination of such issue even at that stage would be on the consideration of
all aspects in which the said issue was framed at the trial, and lastly, the
determination of such issue even at that stage would get a label of finality in
so far as that proceeding and the suit is concerned. Therefore, the
permissibility and desirability of such feature of composite hearing are two
seperable features and the course to be adopted can well be left to the
Presiding Judge in context of the fact and circumstances of each case. IF it is
decided to consider only the said preliminary issue and to keep back for the
time being the interim application, then the possibility of any irreperable
harm being caused, to either side can well be avoided as clause (2) takes care
of such a situation under which even during this interim period till the
adjudication of the preliminary issue, the Court is empowered to grant the
interim relief purely on interim basis.- Kranti Mohan Mehra v. Fatehchand
Vasuram Behl. 1983 Hah. L.J. 141. Issue of Jurisdiction.-The
question whether the suit is barred by limita tion, is a question which would
expressly touch upon the issue of jurisdiction of the Court, for, if the suit
is barred by limitation, the Court trying such a suit is precluded to pronounce
upon the merits of the contentions. With a view to avoid multiplicity of
proceedings, as observed by the Division Bench of this Court, it would be,
therefore, essential that issue of jurisdiction in the context of suit being
barred by limitation, is framed and decided in the first instance before proceed
ing to decide the suit on any other issue. If the said issue is answered
against the plaintiff, then it would be wholly unnecessary for the Trial Court
to undertake the extensive exercise of recording of evidence with regard to the
rival stand on the merits of the case. This would enable the Court to decide
the proceedings with utmost dispatch and would subserve the purpose with which
section 9-A has been introduced by the Maharashtra Amendment Act, 1977. Sudesh
w/o Sushilkumar Handa v. Abdul Ajiz s/o Umarbhai & Anr., 2001 (1) Mah. L.J.
324 : 2001 (1) All M. R. 670. See also Meher Singh v. Deepak Sawhny. 1999 (1)
Bom. C. R. 107. The Code of Civil Procedure
(Bombay Amendment) Act, 1948, is hereby re pealed; and the amendments made by
the said Act in the principal Act shall also stand repealed, without prejudice
to the validity of anything previously done or omitted to be done under the
said amendments. The Code of Civil Procedure
(Hyderabad Amendment) Act, 1953 and the Code of Civil Procedure (Extension of
Hyderabad Amendment) Act, 1964, and the Code of Civil Procedure (Hyderabad
Second Amendment) Act, 1953 are hereby repealed; and the amendments made by the
two Hyderabad Acts in the principal Act shall also stand repealed without
prejudice to the validity of anything previ ously done or omitted to be done
under the said amendments. In section 60 of the
principal Act, in sub-section (1), in the proviso- (a)
after clause (g), the following clause shall
be inserted, namely. "(gg)
in the Hyderabad area of the State of Maharashtra, any pension granted or
continued by the Central Government of the Government or the former State of
Hyderabad or any other State Government, on account of past services or present
infirmities or as a compassionate allowance, which is not covered by clause
(g)". (b)
after clause (kb), the following clause shall
be inserted namely. "(kbb)
the amounts payable under the policies issued in pursuance of the rules for the
Hyderabad State Life Insurance and Provident Fund, which are not covered under
clause (ka) or (kb)". Explanation.-Where any sum
payable to a Government servant is exempt from attachment under this clause or
clause (gg). such sum shall remain exempt from attachment, notwithstanding the
fact that owing to the death of the Government servant the sum is payable to
some other person.The
Code Of Civil Procedure (Maharashtra Amendment) Act, 1977
PREAMBLE