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Nusli Neville Wadia v. Ivory Properties
The Supreme Court has explained in the instant case the scope of the term “jurisdiction” under Section 9A of the Code of Civil Procedure, 1908 and its applicabliity to the State of Maharashtra. This conflcit arose due to contradictory judgements by the Supreme Court itself and created a huge legal lacunae due to trhe Amendment to Section 9A of the Code of Civil Procedure 1908 by the State of Maharastra.
THE TWO CONFLICTING JUDGEMENTS
In Kamalakar Eknath Salunkhe as to the interpretation of Section 9A, it has been opined by the Supreme Court that word jurisdiction in Section 9A is used in a narrow sense as to maintainability, only on the question of inherent jurisdiction and does not contemplate issues of limitation.
In Foreshore Cooperative Housing Society Limited , it has been held that decision in Kamalakar Eknath Salunkhe is contrary to the law. The word jurisdiction in Section 9A is used in a broader sense.
It has also been held that Section 9A is mandatory and a complete departure from the provisions of Order XIV Rule 2. The question of limitation is synonym with jurisdiction, and if raised, the Court has to try it as a preliminary issue under Section 9A as applicable to the State of Maharashtra.
JUDGEMENT IN THE PRESENT CASE
The Court rejected its own reasoning in the Foreshore Corporation case and held the following.
While deciding the issues of the bar created by the law of limitation, res judicata, the Court must have jurisdiction to decide these issues. Under the provisions of section 9A and Order XIV Rule 2, it is open to decide preliminary issues if it is purely a question of law not a mixed question of law and fact by recording evidence.
The decision in Foreshore Cooperative Housing Society Limited cannot be said to be laying down the law correctly. We have considered the decisions referred to therein, they are in different contexts.
The decision of the Full Bench of the High Court of Bombay in Meher Singh ( holding that under section 9A the issue to try a suit/jurisdiction can be decided by recording evidence if required and by proper adjudication, is overruled. We hold that the decision in Kamlakar Shantaram has been correctly decided and cannot be said to be per incuriam, as held in Foreshore Cooperative Housing Society Limited.
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