IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.75 OF 2006
NOTICE OF MOTION NO.1222 OF 2004
SUIT NO.2939 OF 1999
Foreshore Co-operative Housing
Society Limited, A Co-operative Society
registered under the Maharashtra
Co-operative Societies Act,1960, having
its registered office at 'ADVENT', at 12-A,
Gen.Jagannathrao Bhosale Marg, ..Appellants/ Bombay - 400 021. Ori.Plaintiffs
1. Shri.Praveen D.Desai,
Indian Inhabitant of Bombay,
residing at 207, Panchasheel,
`C' Road, Churchgate,
Bombay - 400 020.
2. Advent Corporation Pvt.Ltd.
A Private Limited Company
incorporated under the
Companies Act,1956, having its
office at 5/64, Bombay Mutual Chambers,
19/21, Ambalal Doshi Marg, Fort,
3. Shri N.L.Mehta,
Indian Inhabitant of Bombay,
residing at 301/2, Jupiter Apartments,
Cuffe Parade, Bombay - 400 005.
4. Shri.Pankaj Mehta
Indian Inhabitant of Bombay,
residing at 301/2, Jupiter Apartments,
Cuffe Parade, Bombay - 400 005.
5. Messrs Sharan & Mehta
a partnership firm, carrying on
business at and from Atlanta, 7th Floor,
Nariman Point, Bombay - 400 021.
6. Sterlite Industries Ltd.
A public limited Company incorporated
under the Companies Act,1956 having
its office at Maker Chambers III,
Nariman Point, Bombay - 400 021.
7. The Municipal Corporation of Greater
Bombay, a Statutory Body Incorporated
under the Bombay Municipal Corporation
Act,1889, having its Head Office at
Bombay Municipal Corporation,
Mahapalika Marg, Bombay.
8. Gaurav Overseas Pvt.Ltd.
A Private Limited Company incorporated
under the Companies Act,1956 having
its office at Maker Chambers III, ..Respondents Nariman Point, Bombay - 400 021. /Original Defendants)
Mr.S.Doctor, M.Doctor, Aloukik Pai, Sagar Ghogane, Sandeep Aole i/b. Udwadia & Udeshi for the Appellants.
Mr.Ravi Kadam, Advocate General, V.B.Naik, Vikram Trivedi, Faisal Sayyed and Mr.Durgesh Khanapurkar i/b.M.K.Ambalal & Co. for Respondent Nos.3 and 4.
Mr.Gaikwad for Respondent No.7.
Mr.D.D.Madon, Senior Counsel with Cyrus Ardishir and Paritosh Jaiswal i/b. Kanga & Co. for Respondent No.8.
CORAM : DR.S.RADHAKRISHNAN &
ANOOP V. MOHTA,JJ.
JUDGMENT RESERVED ON : 17TH DECEMBER,2007
JUDGMENT PRONOUNCED ON : 17TH OCTOBER,2008
JUDGMENT (PER : DR.S.RADHAKRISHNAN,J.)
1. This is an appeal against the judgment and order dated 20.1.2006, passed by the Learned Single Judge of this Court. The Learned Single Judge has held that the question of limitation could be tried as a preliminary issue under Section 9A of the Code of Civil Procedure, 1908. The learned Single Judge did not allow the Appellants to claim the benefit of Section 14, Limitation Act, 1963 on the ground that the appellant had not proved the 'institution' of Suit No.6734/1994 at the Bombay City Civil Court to be "in good faith". The sequence of facts in the case are as follows:
i) On 17.03.1958, the Golwalas, who were the original lessees of the suit property, entered into an agreement with Respondent No.1 ,under which he was granted right of development of a portion of the suit property. These development rights were transferred in favour of his company, ie, Respondent No.2. Pursuant to the power of attorney executed in favour of Respondent No.1 by the Golwalas, Respondent No.1 and/or 2 completed the construction of the building 'Advent' and sold flats therein to various persons on ownership basis. In 1966, the flat purchasers formed a co-operative society registered in the name of Foreshore Co-operative Housing Society Ltd., the Appellants in the present case.
ii) Following this, an I.O.D. and commencement certificate for 'Divya Prabha' were granted by Respondent No.7 to Respondent No.1. The R.C.C. framework was constructed till 1968 by Respondent No.1 and 2. On 10.4.1968, notices were issued by 5
Respondent No.7 to stop work and to remove the unauthorized 10th floor slab and other irregularities. These notices were challenged by the Respondent No.1 in Suit No.6551 of 1968. The aforesaid suit was returned for presentation to the proper court and thereafter the same was abandoned by Respondent No.1 and 2.
iii) In 1968-69, serious disputes arose between the Golwalas and Respondent Nos.1 and 2 regarding the failure of consideration and the breaches of terms and conditions of the agreements entered into between them. Notice was given to the B.M.C. and a public notice given in the newspaper regarding the termination of the Power of Attorney given to the Respondent no. 1 by Golwalas. On 25.03.1969, the original lessees assigned all their leasehold interest in the plot of land. On 25.03.1969, the Appellants by an unregistered agreement handed over the swimming pool on the property to Khurshed and Lily Golwala. On 28.06.1972, Respondent No.7 confirmed the Appellants as lawful assignees of the suit property. On 6.10. 1980, Respondent No.2 is alleged to have transferred his right in 'Divya Prabha' to Respondent no. 3 by virtue of alleged writing styled as Heads of Agreement. In August 1987, Respondent No.3 started gunniting work only on the R.C.C. shell framework of 'Divya Prabha'. On 14.11.1987, Respondent No.7 issued a stop work notice to Respondent No.3, who challenged the same as being ultra vires and illegal and prayed for an injunction in the City Civil Court. Application for revalidation and/or further construction made by Respondent No.3 was rejected by Respondent No.7.
iv) On 14.10.1994, an agreement is alleged to have been entered into between Respondent Nos. 1-6 and Respondent No.8, whereby the former have purported to sell 'Divya Prabha' in favour of the latter. On 8.11.1994, the Appellants filed a suit No.6734 of 1994 for reliefs prayed therein in the Bombay City Civil Court. On 28.06.1996, the first revalidation of the I.O.D and commencement certificate was granted valid upto 19.06.1997. On 29.01.1997, the Appellants amended their plaint to challenge the aforestated revalidation. On 10.3.1997, an injunction was granted in suit No.6734 of 1994 with regard to the said revalidation. On 16.10.1997, the Respondent Nos. 1-6 and Respondent No.8, were allowed by the order of a Learned Single Judge of this Court to apply for permission since the revalidation letter had expired on 19.06.1997. The order also directed that a copy of any order that may be passed by the Respondent No.7 should be given to the Appellants. The Appellants allege that without communicating any permission granted, and in breach of the aforesaid order, Respondent No.8 entered onto the suit property forcibly and purported to carry out construction works in respect of 'Divya Prabha'. The Appellants filed Civil Suit No.9957/1998 in this Court for injunction and for disclosure of any permission, if any, as per the aforesaid order. Revalidation certificates dated 28.9.1998 and 5.10.1998 were handed over by the Respondents. On 12.11.1998, an injunction order was granted by this Court in the abovementioned application for a period of six weeks from the date of the said order. 7
v) The Appellants took out a Chamber Summons No.1531 of 1998 in the City Civil Court for amendment of their plaint inter alia to challenge the alleged revalidation permission dated 18.9.1998 and 5.10.1998. The Appellants also took out a Notice of Motion No.1285 of 1999 inter alia praying for an injunction restraining Respondent Nos. 1-6 and Respondent No.8, from carrying out of construction in respect of shell structure 'Divya Prabha'. This notice of motion was granted. On 17.03.1999, when the suit was on board for final hearing, the Respondent Nos.1 and 2 took out a Notice of Motion No.1435 of 1998 for framing a preliminary issue as to jurisdiction. On 16.04.1999, an order was passed by the learned City Civil Court Judge returning the plaint in Suit No.6734 of 1994 for presentation to this Court. On 18.05.1999, the Appellants filed the above Suit No.2939 of 1999 in this Court and ad-interim reliefs were refused.
vi) As the order of injunction was in operation only till 26.05.1999, the Respondents entered upon the property on 27.05.1999 and carried out construction works until 1.07.1999. Respondent No.7, on 8/9.03.2004, granted revalidation certificate of the said I.O.D and Commencement Certificate. The Appellants took out a Chamber Summons No.478 of 2004 for amendment of the plaint to bring the aforesaid revalidation letter on record. An application was also made for ad-interim reliefs before the learned Single Judge which were refused. On 29.03.2004, Appeal No.235 of 2004 was filed against the aforesaid order and ad-interim reliefs were granted by the Division Bench of this Court. On the same date, a statement was 8
made by the officer of B.M.C that no commencement certificate had been issued in pursuance of the said revalidation. On 5.04.2004, the Division Bench while disposing off the appeal No.235 of 2004 were pleased to continue the injunction until 26.04.2004. On 6.05.2004, an ad-interim order was passed in Notice of Motion No.1222 of 2004 by this Court in favour of Appellants.
vii) On 18.03.2005, a preliminary issue of jurisdiction under Section 9A of the Code of Civil Procedure was framed on the application of Original Defendant No.8. On 20.01.2006, an order was passed dismissing the suit of the Appellants on the ground of limitation. The present Appeal arises out of the said order.
2. Learned Senior Counsel Mr.Doctor appeared on behalf of the Appellants. This appeal has been filed against an order dated 20.1.2006, made by a Learned Single Judge of this Court. Mr.Doctor submitted that the Appellants have two main grievances against the abovementioned order:
a. The Learned Single Judge has held that the present suit of the Appellants is barred by the Law of Limitation pursuant to an application made by Respondent No.8 under Section 9A of the Code of Civil Procedure, 1908.
b. The Learned Single Judge had ignored the contention of the Appellants that the suit was within time, even without providing for the exclusion of time under Section 14 of the Limitation Act, 1963. The Learned Single Judge had erroneously held that the Appellants were required to plead and prove that the previous suit filed by the 9
Appellants in the Bombay City Civil Court in November, 1999 was "instituted" in good faith, to seek the benefit under Section 14 of the Limitation Act.
3. Mr.Doctor, the learned Senior Counsel submitted that Section 9A of the Code of Civil Procedure, pursuant to which the application made by Respondent No.8 was decided by the Learned Single Judge, has been repealed by Section 32, CPC (Amendment) Act, 1999 and Section 16, CPC (Amendment) Act, 2002. These amendments repeal any provisions of the Code of Civil Procedure, added by the State Legislatures or the High Courts, which are inconsistent with the CPC as originally enacted. Section 9A was inserted by an act of the Maharashtra State Legislature. Therefore in the light of the above amendments, Section 9A should be deemed to have been repealed. Mr.Doctor for the Appellants relied on a judgment of this Court dated 29 November, 2007, Madhuri Prabhakar Patole v. Aruna SatishChandra Gaikwad in support of this contention. In response, Mr.Madon, the learned Senior Counsel for the Respondents cited another judgment, M.Bagasarwalla v. Hind Rubber Industries (1997 3 SCC 443, para 16) to point out that there is no inconsistency between the provisions of Section 9A and Order XIV, Rule 2, CPC. However, Mr.Doctor for the Appellants distinguished the judgment cited by the Respondents. It was argued that it only analyses the power of courts to pass an interim order in a case where the defendant raises a plea pertaining to jurisdiction. It does not deal with the conflict between Section 9A and Order XIV, Rule 2. Moreover, this judgment relied upon by the Respondents was passed prior to the Amendment Acts of 1999 and 2002. However, a Division Bench of 10
this Court in Madhuri Prabhakar Patole Vs. Aruna Satishchandra Gaikwad 2008(1) Bom.C.R.709 has categorically held that the Code of Civil Procedure Amendment Act,2002, does not repeal Section 9A of Code of Civil Procedure. Hence, the above objection of Mr.Doctor cannot be sustained.
4. Mr.Doctor, the learned Senior Counsel for the Appellants Firstly very strongly contended that the bar of limitation cannot be regarded as an objection to the jurisdiction of the Court under Section 9A of the Code of Civil Procedure,1908.
i) The term 'jurisdiction' as used in Section 9A of the Code of Civil Procedure,1908 must be construed harmoniously with Section 9, CPC. This was upheld in Smithkline Beechan Consumer Health Care v. Hindustan Lever Ltd and Others [2003 105 (2) Bom L.R. 547] ii) Mr.Doctor, cited judgments of Learned Single Judge of this Court pertaining to the question of limitation as a preliminary issue under Section 9A, CPC. In Sudesh w/o Sushilkumar Handa v Abdul Aziz, s/o Umarbhai and Another [2001 (1) Mh.L.J.324] wherein it was held that limitation can be decided as a preliminary issue under Section 9A. However, Mr.Doctor contended that in that case, the point of limitation was raised on the basis of pleadings in the plaint itself. Therefore, it could not be applied to cases where limitation was decided by allowing parties to lead evidence. Mr.Doctor for the Appellants also cited Fedroline Anthony Joseph v. Vinod Vishanji Dhanod and Others [2002 (3) Bom. L.R. 582, paras 5-13] and Shraddha Associates 11
and another v. St. Patrick's Town Co-operative Housing Society Ltd. and others [2003 (3) Bom L.R. 814, paras 8- 21]. These cases have held that limitation cannot be decided as a preliminary issue under Section 9A of the Code of Civil Procedure,1908. Mr.Doctor also very strongly relied on a judgment delivered by a four-Judges bench of the Hon'ble Supreme Court in Ittyavira Mathai v. Varkey Varkey [AIR 1964 SC 907] wherein it was held that an objection to limitation is not an objection as to jurisdiction. Mr.Doctor submitted that the Learned Single Judge has failed to appreciate the ratio in Varkey's case, confusing the ratio with the finding. In Varkey's case, the decreeing of a suit barred by time is not a case of acting without jurisdiction, but is merely an act rendering the judgment illegal, and not a nullity. Mr.Doctor submitted that the Supreme Court has thus drawn a distinction between jurisdiction and limitation.
iii) Mr.Doctor, the learned Senior Counsel for the Appellant submitted that the larger bench judgment in Pandurang Dhondi Chougule and others v. Maruti Hari Jadhav and others[AIR 1966 SC 153] is not relevant since it was passed in the context of revisional jurisdiction under Section 115 of Code of Civil Procedure. 'Jurisdiction' in Section 115 is applicable not only to suits, but other civil proceedings also. Therefore, it is used in an entirely different context from Section 9 of the Code of Civil Procedure,1908.
iv) The learned Senior Counsel pointed out that the other judgments cited by the Respondents in support of equating a bar on limitation with exclusion of jurisdiction are not relevant as they have no 12
bearing on the interpretation of 'jurisdiction'. These judgments pertain to matters under tribunals, statutory authorities under the Industrial Disputes Act, 1947 and the Indian Trusts Act, 1882.
v) In Smithkline Beechan's case, Mr.Doctor submitted that the question raised was as to whether a bar to a suit under the provisions of Order II, Rule 2, was a question of jurisdiction under Section 9A. Mr.Doctor submitted that this decision is not applicable as Order II, Rule 2 of the Code of Civil Procedure,1908 creates a complete bar, while limitation issue does not create a complete bar.
vi) Mr.Doctor, the learned Senior Counsel for the Appellants also sought to demonstrate the distinction between limitation and a complete bar to jurisdiction by citing the provisions in several statutes, including Section 33, Maharashtra Rent Control Act, 1999 and Section 164 of the Maharashtra Co-operative Societies Act, 1960.
vii) The learned Senior Counsel submitted that the question of limitation is generally one of both law and of fact. Therefore, based on the provisions of Order XIV, Rule 2 of the Code of Civil Procedure,1908, which requires judgment on all issues, while deciding a question of limitation, the Court must also decide all other issues. The same is mandatory even if the Court concludes that the suit to be barred by limitation. Thus, limitation cannot be said to create a bar as to jurisdiction.
5. Mr.Doctor, the learned Senior Counsel, Secondly contended that the suit framed and filed before the High Court was within time even without the benefit of Section 14 of Limitation Act, 1963.
i) The Appellants claim that their causes of action are the letter of revalidation and the certificate issued by Respondent No.7 on 18.9.1998 and 5.10.1998 respectively, as also the alleged acts of trespass committed on 12.10.1998, 22.10.1998 and 24.10.1998. The main relief prayed for is an injunction, while the prayer for declaration of title is only ancillary. Therefore, Article 58, Limitation Act, 1963, upon which Respondent No.8 has relied, has no application.
ii) The plea of adverse possession has been taken by the Respondents for the first time in the appeal. The same is mutually incompatible with their plea of ownership. The Appellants submit that the plea of adverse possession must be specifically pleaded and proved. The Respondents contend that the Appellants did not specifically state that the Respondents had removed themselves from the property. The Appellants submit that this stand is incorrect. They have stated that the property was formerly abandoned and that the Respondents have forcibly entered onto the property.
6. Mr.Doctor, the learned Senior Counsel, thirdly contended that the Appellants are entitled to claim the benefit of Section 14, Limitation Act, 1963, for the time spent in prosecuting Suit No.6734/1994 in the Bombay City Civil Court.
i) The Appellants submit that they have tendered evidence to show the prosecution of their suit in good faith, including inter alia, submitting the roznama, showing the numbering of the plaint and pointing out that no objection was taken to the pecuniary jurisdiction of the court by the Respondents.
ii) The Learned Single Judge has, however, come to the conclusion that there is no material to show that the suit was 'instituted' in good faith.
iii) In Vijaykumar Rampal and others v. Diwandari and others (AIR 1985 SC 1669), it was held that error in valuing a suit has nothing to do with the demonstration of the prosecution of the suit in good faith. This was followed in Deena v. Bharat Singh [2002(6) SCC 336]
iv) The Appellants submit that there is no need to lead oral evidence as documentary evidence is sufficient in that behalf.
v) The Respondents themselves allege that the court ceased to have jurisdiction only after the amendment of 1997. Thus, there can be no question of instituting the suit mala fide and the burden of proving this is on the Respondents.
vi) The Appellants contend that the judgments cited by the Respondents to prove that the suit must be "instituted" in good faith to claim the benefit of Section 14 are all prior to the amendment of Order VII, Rule 6. Also, they are all cases of gross negligence on the part of the advocates and mala fide,which is not so in the present case.
vii) The Appellants have also cited a judgment of the Madhya Pradesh High Court in Binodilal v. Satyendra Singh [AIR 1956 M.P.97, para 3] to show that an endorsement on the plaint showing the date when the suit was originally instituted and an endorsement showing the date of return of the plaint for presentation to the proper court were held to be sufficient to claim the benefit of Section 14.
viii) The Appellants have also distinguished Madhavrao Narayanrao [AIR 1958 SC 767] which was cited by the Respondents. In the present case, the valuation was mentioned in the plaint and the application for return of the plaint was made by the Respondents. Thus, the suit cannot be said to have been instituted in bad faith.
7. Learned Senior Counsel for the Respondent, Mr.Madon, put forth the following contentions:
a) The bar of limitation can be raised as a preliminary issue as to jurisdiction under Section 9A, Code of Civil Procedure,1908.
i) The learned Senior Counsel contended that a question of limitation is a question of jurisdiction and therefore ousts the court's jurisdiction to decide the matter on merits. Therefore, a 16
question of limitation can be tried as a preliminary issue under Section 9A of Code of Civil Procedure,1908.
ii) To support the contention that limitation ousts the jurisdiction of the court, it was submitted that Section 3, Limitation Act, 1963, provides that a suit, application or appeal after the prescribed period shall be dismissed even though limitation is not set up as a defence.
iii) Mr. Madon cited several cases in support of his argument. For instance, in Pandurang Dhodi Chougule and others v. Maruti Hari Jadhav and others[AIR 1966 SC 153] a five-Judge bench of the Hon'ble Supreme Court has categorically held that limitation was a plea of law concerning jurisdiction and a finding in favour of the party raising it would oust the court's jurisdiction. The same was reiterated in Manish Chandra Nandy v. Debdas Nandy [AIR 1986 SC 446].
iv) In Official Trustee W.B.and others v. Sachindranath Chatterjee and others [1969 (3) SCC 92] the Supreme Court held that jurisdiction is the power of the court to hear and determine a cause, to adjudicate and exercise any power in relation to it. In view of this ruling, Mr. Madon has argued that where a suit is barred by limitation, the court does not have the authority to pass the order sought for, and hence, 17
jurisdiction is ousted. In Sudesh w/o. Sushilkumar Handa v Abdul Aziz, s/o Umarbhai and Another [2001 (1)
Mh.L.J.324] a Learned Single Judge of the Bombay High Court has held that limitation would expressly touch upon the question of jurisdiction. In Smithkline Beechan Consumer Health Care Vs. Hindustan Lever Ltd. and Others [2003 105 (2) Bom L.R. 547] a Division Bench of this Court held that Section 9A applies when a suit is barred by any statute. Therefore, Mr.Madon pointed out that "any statute" would also include Limitation Act.
v) Mr.Madon, the learned Senior Counsel also sought to distinguish certain cases cited by the Appellants. For instance, in Fedroline Anthony Joseph v. Vinod Vishanji Dhanod and Others [2002 (3) Bom. L.R. 582],it was submitted that the judgment does not decide the question whether limitation can be tried as a preliminary issue under Section 9A. Similarly, the judgment in Shraddha Associates and another v. St. Patrick's Town Co-operative Housing Society Ltd. and others [2003 (3) Bom L.R. 814] is per incuriam as it does not consider the Supreme Court Judgment in Chougule's case. Moreover, in the Joseph case, a contrary view to Sudesh' s case is not taken, as in that case, limitation was raised on the basis of pleadings in the plaint itself and,therefore cannot be applied to cases where the question is to be decided by allowing parties to lead evidence. The case of Ittyavira Mathai v. Varkey [AIR 18
1964 SC 907] would not hold in view of Chougule's case, which was decided by a larger bench of the Hon'ble Supreme Court.
8. The learned Senior Counsel submitted that the present suit filed by the Appellants, as also the suit filed in the City Civil Court were clearly barred by limitation. In National Bank v. Surendra Prasad Sinha [1993 (1) Supp. SCC 499] it was held that after the period of limitation has elapsed, the right to property is extinguished and the same is provided by Section 27, Limitation Act, 1963. The plaint in the first and the present suit reveals that the claims are based on the appellant's alleged title to the said property, which right was extinguished by Section 27 of Limitation Act.
9. Mr.Madon, the learned Senior counsel for the Respondent submitted that the Appellants cannot avail of the benefit of Section 14 Limitation Act, 1963. Mr.Madon contends that the amendment to the plaint, adding paragraph 31(C) was done only as an afterthought to comply with the requirement of Section 14 and not substantiated by leading any oral evidence, even though they were given an opportunity to do so. In Ghisulat Gameshi Lal v. Gumbhimull Pandya [AIR 1938 Cal 377] it was held that just because a person engages a lawyer, it does not, by itself mean that he had acted in a bonafide manner and even if the lawyer gives improper or incorrect advice, it cannot be said that he acted in good faith. In Kandepre Raghavayya v. Elukonic Vasudevayya Chetty [AIR 1944 Mad. 47] it was held that whether the advocate has shown due care and attention is a question of fact to be decided on the basis of evidence adduced. In the present case, no evidence was led, nor was the name of the advocate who 19
advised the Appellants is disclosed. In Deena V. Bharat Singh [2002 (6) SCC 336] it was held that the finding of good faith under Section 14 was a question of fact. The judgment cited by the Appellants in Dasrath Behera v. Kataidei [AIR 1961 Ori.160] is per incuriam. The Appellants' reliance on Bomi Munchershaw v. Kesharwani Co-operative Housing Society Ltd. [1993 (2) Bom. C.R. 301] is misconceived, as in that case, the lawyer who had advised the plaintiffs was cross-examined, which is not the case in the matter at hand.
10. Mr.Ravi Kadam, the learned Advocate General made briefly the following submissions on behalf of the Respondent No.3 and 4:
i) Section 9A, CPC must be given a purposive interpretation. The learned counsel cited the background to the amendment, while introducing Section 9A. The practice of granting ad-interim injunctions without going into the question of jurisdiction led to an abuse of the judicial process. The Maharashtra amendment was also intended to save judicial time and to prevent abuse of judicial process.
ii) Section 9A and Order XIV, Rule 2 of the Code of Civil Procedure,1908 are distinct. A question of jurisdiction, even if it is a mixed question of law and fact, must be decided first.
iii) Under Order VII, Rule 11(d) of the Code of Civil Procedure,1908 , the Court must reject the plaint if the suit is barred by law.
iv) Section 9A of the Code of Civil Procedure,1908 must take colour from Section 9. 'Jurisdiction' has to be given a wider interpretation and not remain restricted to pecuniary, territorial or subject-matter jurisdiction.
v) Section 3, Limitation Act, 1963 does not give any authority to the Courts, to try the suit where proceedings are barred by limitation. This is because limitation affects the jurisdiction of the courts. Limitation cannot be decided on a concession made by parties.
vi) The plea of limitation is a plea of law, which touches upon jurisdiction, and therefore, the court cannot pronounce upon the merits, the object being to avoid multiplicity of proceedings and to save time.
11. After having heard all the learned Senior Counsel in the above, we find that there are two basic issues in the above Appeal, which are as under:
a. Whether plea of limitation can be decided as a preliminary issue of jurisdiction under Section 9A of the Code of Civil Procedure?
b. Whether the Appellants would be entitled to claim the benefit of Section 14 of the Limitation Act?
12. With regard to the first issue, the judgment of the Hon'ble Supreme Court which was strongly relied upon by Mr.Doctor, is Ittyavira Mathai Vs. Varkey Varkey AIR 1964 SC 907 which was delivered by four Judges Bench of the Hon'ble Supreme Court, wherein paragraph 8 reads as under:
8. The first point raised by Mr.Paikedy for the Appellant is that the decree in O.S.No.59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by Ittyavira in favour of Ramalinga Iyer was a nullity becuase the suit was barred by time. Even assurimg that the suit was barred by time, it is difficult to appreciate the contention of learned Counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the Court decreed it, the Court would be 21
committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an Appeal against it. But it is well settled that a Court having jurisdiction over the subject matter of the suit and over the parties thereto, though 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 Vs. 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 it is the duty of the Court to take notice of this provision and give ffect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the Court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Core. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.
13. In the above, the Hon'ble Supreme Court has held that where a Court having jurisdiction over the subject matter and the party passes a decree it cannot be treated as a nullity and ignored in a subsequent litigation even if the suit was one barred by time. In the above case, the Court had failed to perform its duty under Section 3 of Limitation Act, i.e. it is the duty of the Court to decide the issue of limitation, even if parties had not raised. In that context, the Hon'ble Supreme Court held that it cannot be said that where 22
the Court fails to perform its duty, it acts without jurisdiction. The Hon'ble Supreme Court held that if the Court fails to do its duty, it merely makes an error of law and an error of law can be corrected in the manner laid down in the Code of Civil Procedure. Whereas, if "limitation" is specifically raised, it would deal with the power or jurisdiction of the Court to decide the matter.
14. On the contrary, both the learned Senior Counsel Mr.Madon and Mr.Kadam have strongly relied upon the judgment in Pandurang Vs. Maruti AIR 1966 SC 153 of the Hon'ble Supreme Court delivered by a bench of five Judges, wherein paragraph 10 reads as under:
10. The provisions of Section 115 of the Code have been examined by judicial decisions on several occassions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however, gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Cls. (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate Courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115.
15. In the above judgment, the Hon'ble Supreme Court, through five Judges have in no uncertain terms held as under:
"It is well settled that a plea of limitation or plea of res-judicata is plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court.
16. In this context, it would be relevant to quote the decision of the Hon'ble Supreme Court in State of U.P. Vs. Ram Chandra Trivedi AIR 1976 SC 2547, the relevant part of paragraph 22, which reads as under:
22. ............................................... It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the view expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India Vs. K.S.Subramanian (Civil Appeal No.212 of 1975, decided on July 30,1976 reported in 1976 U.J. (SC) 717, to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.
17. Even otherwise, the observations of the Hon'ble Supreme Court in Ittyavira Mathai' case was in the context when a Court fails to perform its s
duty under Section 3 of the Limitation Act, it would be commission of an error and not lack of jurisdiction. Whereas in the instant case, a specific plea was taken up that the suit claim was barred by limitation. In the above Pandurang's case, five Judges of the Hon'ble Supreme Court have in no uncertain terms have held that plea of limitation is a plea of law, which conerns jurisdiction. The above decision clearly binds us especially in the 24
light of the above Supreme Court judgment in State of U.P. Vs. Ramchandra.
18. The moment, the issue of jurisdiction is raised under Section 9A of the Code of Civil Procedure, the said issue should be decided at first, and not to be adjourned to a later date. The main reason is that if the Court comes to finding that it does not have jurisdiction vested in it in law, then no further enquiry is needed and saves a lot of valuable judicial time. In fact, Section 9A itself mandates that when an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties, the Court will have to decide the issue expeditiously and in no case to be adjourned to the hearing of the suit.
19. A Division Bench judgment of our High Court in Smith Kline Beecham Cons Vs. Hindustan Lever 2003 Vol(105) 2 Bom.L.R.547 has categorically held, that it is not sufficient that the Court has territorial or pecunniary jurisdiction or jurisdiction in relation to the subject matter of the suit but if the suit is barred by any statute, the Court will have no authority to hear and decide the same. The said judgment clearly holds that the use of the word "jurisdiction" is used in a wider sense under Section 9A, which would include the bar to maintainability of the suit, i.e. to say any statutory bar to the maintainability of the suit. Section 3 of Limitation Act clearly mandates the Court to dismiss the suit if the same is barred by Limitation.
20. To put it in other words, if the suit is barred by Limitation, the Court has no jurisdiction to entertain it and the Court is duty bound to dismiss the same, and the parties cannot confer jurisdiction by consent. 25
21. It is explicitly clear that a plea of limitation is a plea which goes to the jurisdction of the Court and it is a plea on law, and it is a settled position in law that when a suit is barred by limitation, the Court is precluded from proceeding on the merits of the contentions and in fact obliged to dismiss the suit.
22. In the above, as rightly observed by the learned Single Judge, from the pleadings themselves it is clear that the suit claim is clearly barred by limitation and there is no necessity of leading any evidence in that behalf.
23. As far as the second issue regarding applicability of Section 14 of the Limitation Act in this case is concerned, it is clear from paragraph 18 of the Plaint, that the cause of action arose in April,1994 and the present suit was filed in this Court on 18.05.1999 hence, clearly barred by law of limitation.
24. In the plaint, there was no pleading that they were entitled to exclusion of time spent in Bombay City Civil Court under Section 14 of the Limitation Act. For the first time in the year 2000, a Chamber Summons was taken out to amend the plaint and the Chamber Summons was granted on 08.12.2005. By the above amendment, the Appellants claimed that they prosecuted the suit in Bombay City Civil Court with due diligence and in good faith. It is vital to note here that the Appellants did not lead any oral evidence to substantiate that the suit was prosecuted with due diligence and in good faith.
25. In the light of the Hon'ble Supreme Court judgment in Madhavrao Narayanrao Patwardhan Vs. Ram Krishna Govind Bhanu & Ors. AIR 1958 SC 767, the burden is always on the Plaintiff to prove that the case is 26
covered by Section 14 of the Limitation Act. The Plaintiff will have to lead evidence to substantiate that the earlier suit was prosecuted with due diligence and in good faith. By merely amending the Plaint, the same cannot be proved that the prosecution of the suit was with due diligence and in good faith, which can be established only by leading evidence. Admittedly, in this case, the Appellants chose not to lead evidence. Hence, it is clear that the Appellants cannot claim the benefit of Section 14 of the Limitation Act by merely amending the Plaint, but without adducing any evidence. Hence, even with regard to the second issue, the Appellants cannot succeed.
26. Under the aforesaid facts and circumstances, we do not find any error or illegality in the judgment and order of the learned Single Judge dated 20.01.2006. Hence, the Appeal is devoid of merits and the same is dismissed, however with no order as to costs.
(ANOOP V.MOHTA,J.) (DR.S.RADHAKRISHNAN,J.)