Limitation vs Jurisdiction under Section 9A CPC: Supreme Court’s Clarification in Nusli Neville Wadia Vs Ivory Properties & Ors.

The Supreme Court in Nusli Neville Wadia Vs Ivory Properties & Ors. has conclusively addressed a long‑standing conflict on the ambit of Section 9A of the Code of Civil Procedure, 1908, as applicable in Maharashtra through the State Amendments of 1970 and 1977.

The central controversy was whether the phrase “jurisdiction of the Court to entertain such suit” in Section 9A is wide enough to cover limitation, and consequently, whether a plea of limitation can be decided as a preliminary issue when the Court is considering an application for interim relief.

A reference was made to a larger Bench because two Supreme Court decisions had taken conflicting positions:

  • Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors. held that limitation is not a jurisdictional issue within Section 9A and therefore cannot be tried as a preliminary issue under that provision.
  • Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) through Legal Representatives and others had taken the opposite view, equating limitation with jurisdiction for the purposes of Section 9A.

The larger Bench has now resolved this conflict by analysing the legislative history, statutory language, case law on “jurisdiction” and “entertain”, and the scheme of Order XIV Rule 2 CPC, and has held that limitation cannot be treated as part of “jurisdiction to entertain” under Section 9A.

Background and Legislative History of Section 9A

Origin: Maharashtra Amendment Act, 1970

Section 9A was initially introduced in Maharashtra through the Code of Civil Procedure (Maharashtra Amendment) Act, 1970. The Statement of Objects and Reasons shows the mischief it aimed to cure:

  • Suits, especially declaratory suits, were being filed in the Bombay City Civil Court without prior notice under Section 80 CPC, which is a condition precedent to filing suits against the Government or public officers.
  • Plaintiffs would file such non‑compliant suits, seek ad interim injunctions, and then, after serving the mandatory Section 80 notice, withdraw the defective suit with liberty to file a fresh one.
  • During this entire period, the interim injunction continued, despite the Court not having examined its own jurisdiction or the bar under Section 80 CPC.

The Legislature found this practice to be a serious abuse of process. To curb this, it introduced a special procedure:

Whenever an objection to the jurisdiction of the Court to entertain the suit is raised at the hearing of an application for interim relief (injunction, receiver, etc.), the Court must first decide that jurisdictional objection as a preliminary issue, before granting or vacating interim relief.

The original 1970 text of Section 9A mandated:

  • Determination of the issue of jurisdiction as a preliminary issue at the hearing of the interim application; and
  • Expeditious disposal of such preliminary issue, without adjourning it to be decided along with the suit.
  • Simultaneously, the Court could still grant temporary interim orders under sub‑section (2) pending determination of the jurisdictional issue.

Re‑enactment after the 1976 Central Amendment

The Code of Civil Procedure (Amendment) Act, 1976 made extensive changes to the CPC with effect from 1.2.1977. Section 97 of that Central Amendment provided that inconsistent State amendments would stand repealed.

To ensure that the Maharashtra‑specific Section 9A survived and continued with the President’s assent under Article 254(2) of the Constitution, Maharashtra formally repealed the 1970 provision and re‑enacted Section 9A via the Code of Civil Procedure (Maharashtra Amendment) Act, 1977 in a slightly revised form.

The re‑enacted Section 9A:

  • Included a non‑obstante clause (“Notwithstanding anything contained in this Code or any other law for the time being in force”);
  • Retained the core requirement: where, at the hearing of an interim relief application, an objection is taken to the jurisdiction of the Court to entertain the suit, the Court shall try that jurisdictional issue as a preliminary issue.
  • Continued to allow grant of interim relief pending such determination.

Deletion of Section 9A and Transitional Provisions in 2018

Maharashtra subsequently deleted Section 9A through the Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018 (later replaced by legislation). Transitional clauses were crucial:

  1. First 2018 Amendment (Ordinance and Act)

    • Section 3(1) provided that any pending preliminary issue framed under Section 9A would be treated as an issue under Order XIV CPC, to be decided along with other issues at final disposal.

  2. Second 2018 Amendment

    • This later amendment modified Section 3(1) and, with retrospective effect from 27.06.2018, directed that where a preliminary issue under Section 9A was already ordered to be decided as a preliminary issue before deletion, it shall continue to be decided under Section 9A, as if that section had never been deleted.

Because many such jurisdictional issues remained pending, the Supreme Court still had to interpret the true sweep of “jurisdiction to entertain such suit” in Section 9A.

Interface with Order XIV Rule 2 CPC

Pre‑1976 Position

Before the 1976 amendment, Order XIV Rule 2 permitted Courts to try issues of law as preliminary issues if the case could be disposed of on those legal issues alone. The unamended rule: