Sabita Rajesh Narang v. Sandeep Gopal Raheja & Ors.

10. In support, Mr. Khambata relies upon the decision of the Hon'ble Supreme Court in the case of Sukhbiri Devi and Others vs. Union of India and Others[5] which he submits following Nusli Neville Wadia vs. Ivory Properties (supra) has, inter alia, held that (a) statements by a party are admissions and facts admitted need not be proved; (b) a party cannot legally have any dispute or grievance in taking their own statements as determining the starting point of limitation; (c) though limitation is a mixed question of fact and law, it will shed the said character and would get confided to one of a question of law when the foundational facts determining the starting point of limitation is vividly and specifically made in the plaint averments; and (d) in such circumstance, the question of limitation can be decided as a preliminary issue on admitted facts under Order 14 Rule 2. Mr. Khambata submits that, therefore, the preliminary issues can be decided by a 5 (2022) SCC Online SC 1322 (paragraphs 16 to 19) Court on admitted facts without evidence. He submits that Nusli Neville Wadia vs. Ivory Properties (supra) itself lays down the law that limitation, res judicata, constructive res judicata etc. can be decided on the basis of admitted facts in the Plaint, under Order 14 Rule 2 of the CPC and that the same can be done under Section 9A as well.

11. Mr. Khambata submits that admissions in pleadings or judicial admissions stand on a higher footing than evidentiary submissions and are by far the best proof of facts admitted. They can be made the foundation of the rights of the parties. Learned Senior Counsel relies upon the Supreme Court decisions in the case of Nagindas Ramdas vs. Dalpatram Ichharam alias Brijram and Others[6] in support.

12. Mr. Khambata, learned Senior Counsel emphasizes that the Appellant’s decision to not lead evidence has converted mixed questions of fact and law into pure questions of law and therefore can be decided under Section 9A.

13. Learned Senior Counsel for the Respondents would further submit that as can be seen from the impugned order, the Appellant has elected and consented to have the suit decided on the preliminary issues of limitation and Benami, 6 (1974) 1 SCC 242 – paragraph 12 without evidence. That, by the Appellant’s own election and conscious decision to not lead evidence admittedly on legal advice despite multiple opportunities to do so, her suit was decided and rejected on her admissions in her plaint. That, this position of not to lead evidence was confirmed yet again by the Appellant on 9 April 2015. That, the learned Single Judge implored the Appellant to lead evidence on several occasions as her case demanded evidence, however, the Appellant chose to have these issues decided on demurrer, solely on the basis of her pleadings. That, it is not even the Appellant’s case today that she wishes to lead evidence. He submits that the consent order dated 8 December 2014 to have the suit decided as a preliminary issue under Section 9A has also not been challenged.

14. That, in any event, it can only be set aside if a party shows that the consent was obtained by fraud or misrepresentation, which is not the case of the Appellant. That, the consent order remains final and binding upon the Appellant. That, in light of Sukhbiri Devi and Others vs. Union of India and Others (supra), the Appellant elected to have the issues of limitation and benami decided as pure questions of law on the basis of her admissions in her plaint. That, the Appellant consented to have her suit decided on the preliminary issues of limitation and benami and cannot now turn around and attack the consent order and/or resile from the consent and/or reopen the question of consent. He submits that the said consent operates as equitable estoppel and it would be completely against public policy to renege on the same. That, once the Appellant agreed and consented to trial of the issues as preliminary issues, and on the said consent, this Court proceeded with the determination of the preliminary issues, the Appellant cannot today be then permitted to contend that this Court could not have decided the said issues as preliminary issues since the same pertain to questions of fact and law. Mr. Khambata refers to the decision of Chopda Automobiles Finance, Hyderabad vs. Sheikh Shabbir Sheikh Noor[7]

15. Mr. Khambata would further submit that even otherwise the Appellant cannot approbate and reprobate and her consent operates as res judicata. It is submitted that having consented and elected to have the suit decided on the preliminary issues of limitation and benami in her own pleadings and without leading evidence in support of her own case, the Appellant is now estopped from taking an 7 1995 (1) MhLJ 833 inconsistent plea / approbating and reprobating. He relies upon the decision in the case of Mumbai International Airport Pvt. Ltd. vs. Golden Chariot Airport and Anr.8. Citing the decision in the case of Chittoori Subbanna vs. Kudappa Sabanna and Ors.9, learned Senior Counsel would submit that, after having omitted to raise any objection to the suit being decided on the preliminary issues of limitation and benami, the Appellant is deemed to have waived her right and cannot challenge this Court’s power to have the same decided on the said preliminary issues for the first time in the Appeal. He submits that the Appellant having not challenged the consent order dated 8 December 2014, cannot now declare that it is not binding on her and cannot turn the clock back, on the basis of a misplaced reliance on Nusli Neville Wadia vs. Ivory Properties (supra). Learned Senior Counsel relies upon the decisions in the case of Sree. Surya Developers and Promoters vs. N Sailesh Prasad and Ors.10

16. Mr. Khambata then submits that in any event, the suit is barred by limitation on admissions made in the plaint alone. That, the suit was rejected inter alia on the preliminary issue of being barred by limitation on the basis of the

Appellant’s pleadings and admissions in her suit. Appellant’s contention that the question of limitation can never be decided as a preliminary issue as the same is a mixed question of fact and law is contrary to the findings of the Hon'ble Supreme Court in Nusli Neville Wadia vs. Ivory Properties (supra), Sukhbiri Devi and Others vs. Union of India and Others (supra) and Dahiben vs. Arvindbhai Kalyanji Bhanushali (supra). Further, there is no pleading of an express trust in the plaint, there is no saving in the plaint even under Section 10 of the Limitation Act, 1963. He refers to the case of Soonderdas Thakersey and Ors. vs. Bai Laxmibai and Ors.11. Learned Senior Counsel would submit that the Appellant in her Memo of Appeal has stated as under: (a) The question of limitation has to be decided under Order 14 Rule 2 of the CPC and not (b) Limitation is a bar to proceeding with a suit as provided under Order 7 Rule 11 of the CPC, which decision is to be restricted to the pleadings in the plaint;

(c) Issues under Section 9A are akin to the scope of issues under Order 14 Rule 2 and Order 7 Rule 11 and this Court ought not to have ventured beyond the pleadings made by the Appellant; 11 ILR Bom (1945) 1047 That, in view of above, the learned Single Judge has rightly found that the plaint was ex-facie barred by limitation on the basis of the admissions in the plaint itself.

17. Mr. Khambata then submits that the suit is also barred under the law of Benami Act on admissions made in the plaint alone. That, the suit was rejected inter alia on the preliminary issue of being barred under the Benami Act on the basis of the Appellant’s pleadings and admissions in her suit. That, although the Appellant has sought to contend that Benami can never be decided as a preliminary issue, being a mixed question of fact and law requiring trial and evidence, it is settled law that a plaint can be rejected under the Benami Act on the basis of the averments in the plaint alone. Learned Senior Counsel relies upon the decisions in the cases of [a] Sakshi and Anr. vs. Darshan Singh12; [b] Nimbanna Chandrappa vs. Shivananda Kinnal and Anr.13; and [c] Sri Nimbanna vs. Shivananda Kinnal & Anr.14 ) and seeks to distinguish the decision in the case of Pawan Kumar vs. Babulal since deceased through legal representatives & Ors.15 cited on behalf of the Appellant. That, during the stage of oral and written submissions before the learned Single Judge, the 12 2019 SC Online Del 10980 13 2017 SC Online Kar 6835 14 SLP (C) No.27426 of 2018 – Judgment dated February 1, 2021

Appellant sought to allege that the plaint was not barred under the Benami Act “in view of the provisions of Section 4(3)(b) being directly applicable” i.e. clearly claiming an exception on the basis of an alleged trust or alleged fiduciary capacity. That, having realized that there is no pleading of an express trust, in a complete volte face, at the stage of Rejoinder submissions in her Appeal, the Appellant has now sought to contend that the transactions are also not prohibited under the Benami Act in light of Section 4(3)(a) of the Benami Act on the alleged basis that the properties were held for the benefit of the coparceners in HUF. Mr. Khambata submits that this is complete moonshine as there is no such exception pleaded in the suit. That, the suit throughout mentions the “Gopal Raheja Group” which is specifically defined in paragraph 1 of the suit. That, there are no prayers seeking partitioning of the purported HUF, but only in relation to partitioning the assets of the “Gopal Raheja Group” exhibited at Exhibit B of the suit being assets of companies. That, the Appellant’s written submissions in the suit clearly restrict her submissions as being under Section 4(3)(b) of the Benami Act i.e. that the ostensible ownership of the shares were held in trust for the Gopal Raheja Group. That, in view of the Appellant’s own submissions, the impugned order has specifically considered whether the exception under Section 4(3)(b) of the Benami Act applies to the Appellant. That, there is no such exception pleaded in the Memorandum of Appeal and no such submission was even made in the opening submissions of the Appellant. In view of above, it is submitted that the suit has been rightly dismissed as being barred under the Benami Act as well on the basis of Appellant’s averments and admissions in the plaint itself.

18. Mr. Khambata would further submit that the Court exercises a modicum of discretion in framing preliminary issues under Section 9A which makes it clear that [a] the Appellant’s consent was not a mere formality; and [b] this Court’s hands are not tied by the mandatory nature of Section 9A as it must still exercise a modicum of discretion whilst framing the same. In support, the learned Senior Counsel relies on the following decisions: (a) Ferani Hotels Pvt. Ltd. vs. Nusli Neville Wadia and Ors.16 (b) Estate Investments Company Pvt. Ltd. vs. New Haven Pvt. And Ors.17 and

(c) Mahesh B. Chaudhary vs. Radha Sadan Cooperative Housing Society Ltd.18

16 Judgment Dated 19 July 2012 in Appeal No.817 of 2010 in Notice of Motion No.1863 of 2008 in Suit No.1628 of 2008. 17 [(2017) SCC Online Bom 38 18 [(2019) SCC Online Bom 232

19. Mr. Khambata would further submit that the impugned order is not a nullity. He submits that this Court had powers to pass the impugned order under the CPC apart from Section 9A. That, assuming whilst denying that the impugned order could not have been passed under Section 9A this Court in any event had power to pass the impugned order under Order 14 Rule 2 and inherent powers under Section 151, Order 7 Rule 11 of the CPC to reject the Appellant’s suit. The learned Senior Counsel submits that even under Order 7 Rule 11(d), as set out in Nusli Neville Wadia vs. Ivory Properties (supra), a Plaint can be rejected as being barred by limitation (and as a corollary also under the Benami Act) if the averments in the plaint itself indicate that it is barred, and no further evidence is thus required. He relies upon Dahiben vs.. That, this Court also had jurisdiction under Clause 12 of the Letters Patent Act in view of the residence of the Defendants in the suit and the cause of action and once this Court had jurisdiction, then, as held in Nusli Neville Wadia vs. Ivory Properties (supra) to adjudicate and decide upon a preliminary issue and dispose of the suit, it could do so on admitted facts and without evidence.

20. That, considering the above, it would be pertinent to note that the Hon'ble Supreme Court’s finding at paragraph 9 in its judgment of N. Mani vs. Sangeetha Theatre20 to the effect that merely while exercising its power, if the Court does not specifically refer to the source of power or if a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist in law. Learned Senior Counsel would submit that, therefore, the impugned order suffers from no infirmity and is not vitiated.

21. That, even otherwise, this Court has vast inherent powers to secure the ends of justice. Learned Senior Counsel relies upon the decision in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal21 and K.K.Velusamy vs. N. Palanisamy22.

22. Lastly, Mr. Khambata submits that the Appellant has set up diverse, mutually destructive and contradictory cases in relation to the 1995-96 Family Arrangement in the present suit and in Suit No. 2363 of 2012 filed by the late Mr. G.L.Rajeja. He submits that in Suit No.2363 of 2012, the Appellant alleges an ostensible ownership of shares by Respondent no.1 in trust for late Mr.G.L.Raheja, whereas, in the present suit, she claims that the same shares were held in trust for the so-called “Gopal Raheja Group”. He submits that the impugned order notes the above at paragraph 27 at pages 64 and 65 of the Appeal. That, Perjury Petition No.2 of 2014 has been filed by the Respondent no.1 herein against the Appellant and the same is pending before this Court. That, the Appellant has clearly elected not to lead evidence as she would have been confronted by her own inconsistencies and is now attempting to use Nusli Neville Wadia vs. Ivory Properties (supra) to contend that evidence could never have been led in the first instance.

23. Mr. Setalvad, learned Senior Counsel, in rejoinder, has reiterated that the objection under Section 9A, in the light of the decision of the Hon'ble Supreme Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra) must be decided without recording evidence; he would submit that the Respondents have wrongly contended that the Appellant elected and consented to the preliminary issues. He would submit that the Respondents’ interpretation of the expression ‘by consent’ in the order dated 8 December 2014 is misplaced, as the consent was only with regard to the manner in which the issues were to be framed. There was no consent to the effect that Section 9A applied and that the issues of limitation and Benami were to be decided under Section 9A with the consent of both the parties. He would submit that once an objection under Section 9A was raised, it was mandatory for the Court to decide the objection before the application for interim relief was taken up and there was no discretion. The question of the Appellant giving consent to have the matter decided under Section 9A did not arise. That, the Appellant could never have consented to the jurisdiction under Section 9A or consented to have the matter decided thereunder. The consent was merely to the manner in which the two issues were to be framed. Learned Senior Counsel would further submit that the Appellant’s decision to not lead evidence is irrelevant and immaterial. He would submit that the Appellant was barred from leading evidence before the learned Single Judge in view of the decision of the Apex Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra). He would submit that without prejudice neither did the Respondents no.1 to 4 lead any evidence before the learned Single Judge nor the case of the Respondent no.4 was proved. That the Appeal must be tested only on the basis of Section 9A and since an Appeal is a continuation of the Suit, the Appeal must also be adjudged by reference to Section 9A only. That, the Respondents cannot contend that if Section 9A is inapplicable the Appeal may be decided on the basis of Order 14 Rule 2 or Order 7 Rule 1 or under Section 151 of the CPC. That, in any event, the aforesaid three provisions are also inapplicable. That, like Section 9A, Order 14 Rule 2 does not contemplate deciding preliminary issues of mixed questions of fact and law or recording evidence. In the present case limitation and benami are mixed and disputed facts which require evidence. Order 7 Rule 11 can also not be adverted to nor Section 151 of the CPC can be invoked with reference to a matter which is otherwise covered by a specific provision. Moreover, Section 151 cannot be adopted to defeat the mandate of Section 9A. Learned Senior Counsel would submit that the Respondents nos.[1] to 4 are fully aware of the law laid down in Nusli Neville Wadia vs. Ivory Properties (supra) and the adverse impact it has on his interest. He would submit that Respondents no.1 to 4 have illegally usurped the Appellant’s properties along with the management and control thereof. That, they have unilaterally created third party rights by availing of loans by mortgaging properties which are subject matter of the suit, and therefore, prejudice has been caused to the Appellant during the pendency of the present Appeal. Learned Senior Counsel submits that therefore this Court be pleased to allow the Appeal.

24. With respect to the arguments of the learned Counsel for the Respondents that the Appellant is approbating and reprobating, learned Senior Counsel for the Appellant would submit that, that is not the case. He would submit that the Appellant could never have consented to the framing of the issues because framing of a preliminary issue under Section 9A was mandatory and there was no discretion in the matter. He reiterates that the consent was limited to the manner in which the issues were framed. We would also reiterate that in view of the decision of the Apex Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra) as regards the decision not to lead evidence, the same is now immaterial. As in any event, there cannot be any estoppel against law. Learned Senior Counsel in this manner seeks to distinguish the decision in the case of Mumbai International Airport Pvt. Ltd. vs. Golden Chariot Airport & Anr. (supra) relied upon by the learned Counsel for the Respondents.

25. Mr. Setalvad, learned Senior Counsel for the Appellant, has also sought to distinguish the other decisions cited on behalf of the Respondents No.1 to 4.

26. Before proceeding further, it would be appropriate to set forth Section 9A of the CPC and to briefly preface the law leading up to the case of Nusli Neville Wadia vs. Ivory Properties (supra).

27. Section 9-A of the CPC reads as under: "9-A. (1) Notwithstanding 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 the suit. (2) Notwithstanding anything contained in subsection (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".

27.1. From a bare reading of the above provision, we can see that Section 9A is a self contained scheme with a non-obstante clause, which expressly mandates the Court to follow the provision, to decide the issue relating to the jurisdiction of the Court as a preliminary issue.

28.1. A Division Bench of this Court in the case of Meher Singh vs. Deepak Sawhny (supra) had the occasion to consider whether while deciding the preliminary issue of jurisdiction as contemplated under Section 9A, the parties were required to be given opportunity to lead evidence which issue was referred to the Division Bench by a Single Bench of this Court as the issue was of considerable importance generally raised on the Original side of this Court as well as in the subordinate Courts. The Division Bench also recorded that before the Single Judge it was contended that when the said issue is raised for determination, the Court is required to permit the parties to lead evidence. That, before the Single Judge decisions in the case of Kranti Mohan Guruprasad Mehra and Another vs. Fatehchand Vasuram Behal23 and in the case of Dinyar Behramji Irani vs. Kshirsagar Construction Co. Pvt. Ltd.24 were relied upon to contend that Section 9A is a self contained scheme with definite object of deciding objection with regard to jurisdiction of the Court to deal with the matter 23 1983 Mh.L.J.141 24 1993 (2) Mh. L.J.1812 as a preliminary issue. That, disagreeing with the ratio laid down in the two cases, the learned Single Judge concluded that averments made in the plaint determined the jurisdiction of the Court and not the subsequent defence set up by the Defendant and referred the matter, as stated above, to the larger Bench.

28.2. The Division Bench after referring to the statement of object and reasons for adding Section 9A to the CPC and considering the distinguishing features between newly added Section 9A and the earlier Order XIV Rule 2 of the CPC observed that for determination of the preliminary issue under Section 9A which may be a mixed question of law and fact, the parties are required to lead evidence. That, without permitting the parties to lead evidence, the issue of jurisdiction cannot be finally determined. If it was to be decided only for prima facie purpose of granting interim relief, then there was no necessity of adding Section 9A to the CPC. It was also observed that on the basis of prima facie determination without proper adjudication, suit could not be disposed of. That, the Plaintiff could not be non-suited on the basis of the averments made in the plaint or in the written statement. If the issue was a pure question of law, then it may be decided without recording evidence, but if it is a mixed question of law and fact, then parties should be permitted to lead evidence on the facts of the case. Question of jurisdiction, even if it is a mixed question of law and fact, it is required to be decided first and for deciding the issue, the parties are entitled to lead evidence – oral as well as documentary, as that issue is required to be tried and adjudicated finally by the Court. That, even though it is true that this procedure requires piecemeal determination of the suit, but that cannot be avoided because of the mandate of Section 9A. The larger Bench, being a 2 Judge Bench of Court also observed that if the issue of jurisdiction is required to be raised and finally determined, then it would require giving an opportunity of leading evidence and hearing both the parties. The decision of this Court in the case of Fazelhussein vs. Yusufally25 was cited in support and the Larger Bench agreed with the decisions in the case of Kranti Mohan Guruprasad Mehra and Another vs. Fatehchand Vasuram Behal (supra) and Dinyar Behramji Irani vs. Kshirsagar Construction Co. Pvt. Ltd. (supra). Paragraphs 12 and 13 of the decision of the Division Bench in the case of Meher Singh vs. Deepak Sawhny (supra) are usefully reproduced as under: “12. We would, at this stage, refer to the precise principle laid down by this Court in the case of 25 AIR 1955 Bom. 55 Fazlehussein v. Yusufally, wherein the Court has, after observing that the averments made in the plaint would be sufficient to decide the question of jurisdiction, held as under:-- “In considering the preliminary issue, the Court must look into the averments in the plaint and consider any objections which the defendant may choose to raise against the maintainability of the action on those averments. The question of jurisdiction which is raised by way of a demurer has always to be decided on the allegations made in the plaint and not on the contentions that the defendant may raise. It is true that if the jurisdiction of the Court depends upon the proof of a fact and the question as to the existence or otherwise of that fact is canvassed, the parties may lead evidence in support of their respective cases before the preliminary issue as to jurisdiction of the Court is decided." In this view of the matter, we agree with the decision in the case of Kranti Mohan Guruprasad Mehra and another v. Fatechand Vasuram Behal reported in 1983 Mh.L.J. 141 = AIR 1982 BOM. 263 and in the case of Dinyar Behramji Irani v. Kshirsagar Construction Co. Pvt. Ltd. Bombay, reported IN 1993 (2) Mh.L.J. 1812 = 1994 (3) BCR 264.

13. In the result we hold that if section 9-A is not added, then at interim stage, the Court is not required to decide the issue of jurisdiction finally and the Court by referring to the averments made in the plaint, would ordinarily determine whether or not the Court has jurisdiction to try the suit. However, it is apparent that section 9-A is added with a specific object to see that objection with regard to jurisdiction of the Court is decided as a preliminary issue. According to the Legislature, the practice of granting injunctions without going into the question of jurisdiction even though raised, has led to grave abuse. Hence the said section is added to see that issue of jurisdiction is decided as a preliminary issue notwithstanding anything contained in the Civil Procedure Code, including Order XIV, Rule 2. Once the issue is to be decided by raising it as a preliminary issue, it is required to be determined after proper adjudication. Adjudication would require giving of opportunity to the parties to lead evidence, if required. (emphasis supplied)

28.3. Therefore, the law laid down by this Court in Meher Singh vs. Deepak Sawhny (supra) was that for determination of preliminary issue of jurisdiction of a Court under Section 9A, as provided in Section 9A, it is required to be determined after adjudication, giving opportunity to the parties to lead evidence.

29.1. Then came the decision in the case of Foreshore Co-operative Housing Society Ltd. vs. Praveen D. Desai and Another26 wherein this Court in an Appeal against an interim order of a Single Judge of this Court holding that the question of limitation could be tried as a preliminary issue

26 Appeal (Original Side) No.75 of 2006 decided on 17 October 2008 under Section 9A of the CPC upheld the view and observed that the plea of limitation can be decided as a preliminary issue under Section 9A of the CPC as the plea of limitation goes to the jurisdiction of the Court and is a plea on law. The Appellate Court observed that if the suit is barred by limitation, the Court has no jurisdiction to entertain it and it is duty bound to dismiss the same and the parties cannot confer jurisdiction by consent.

29.2. The Appellate Court also upheld the decision of the Single Judge that if the claim is clearly barred by limitation, there would be no necessity of leading any evidence. Paragraphs 4, 11, 12, 20 to 22 of the decision of the Division Bench of this Court in Foreshore Co-operative Housing Society Ltd. vs. Praveen D. Desai and Another (supra) are quoted as under: “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, This was upheld in Smithkline Beechan Consumer Health Care CPC. 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 Others [2002 (3) Bom. L.R. 582, paras 5-13] and Shraddha Associates 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 of the Code of Civil on a judgment Court in it preliminary issue under Section 9A Procedure,1908. Mr.Doctor also very strongly relied delivered by a four-Judges bench of the Hon'ble Supreme Ittyavira Mathai v. Varkey Varkey [AIR 1964 SC 907] wherein 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 bearing on the interpretation of ‘jurisdiction’. These judgments matters under tribunals, statutory authorities under the pertain to 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.”

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:

29.3. Thereafter came the decision of this Court in the case of Kamlakar Eknath Salunkhe vs. Baburav Vishnu Javalkar and Others27 wherein the Bombay High Court upheld the order passed by the trial Court that the plea of limitation can be decided as a preliminary issue under Section 9A and allowed the parties to lead evidence for determination of the same. The said decision is usefully quoted as under:

8. The short point that falls for our consideration and decision in this appeal is whether the question of limitation could be considered as preliminary issue under Section 9A of the Code.

9. At the outset, it would be profitable to notice the relevant provision under the Code. Section 9A is a State amendment to the Code, inserted by Section 3 of the Maharashtra Act No. 65 of 1977. The said provision reads as under:- “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) Notwithstanding 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, on objection to 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 for 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 the suit. (2) Notwithstanding anything contained in subsection (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.”

13. Section 9A of the Code requires the Court to decide the issue as to jurisdiction before final adjudication on the application for interim relief. The language employed in Section 9A is clear and unambiguous. Section 9A(1) contemplates that when a person makes an objection to jurisdiction of the Court, the Court shall determine such objection on jurisdiction as a preliminary issue before proceeding with the application for interim relief. It further provides that such application raising an objection as to the jurisdiction of the Court ought to be heard and disposed of as expeditiously as possible and prohibits adjournment of such issue till the hearing of the suit. Section 9A(2) provides that the Court shall have the power to grant interim relief, as it may deem appropriate, pending determination of such preliminary issue regarding jurisdiction before it.

14. The provision, read in its entirety, neither contemplates nor refers to any circumstance where an objection besides the jurisdiction of the Court may be determined as a preliminary issue. It only contemplates the issue of jurisdiction to be framed and determined as a preliminary issue by the Court.

15. This Court in Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors., (1974) 3 SCC 415, in context of the expanse of the term “jurisdiction” has observed that: (SCC pp. 423-24, para 28) “28....Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic case, [(1967) 3 WLR 382] we do not think that the distinction between the two has been completely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it. The difficulty has arisen because the word “jurisdiction” is an expression which is used in a variety of senses and takes its colour from its context; (see per Diplock, J., at WLR p. 394 in the Anisminic case)”.

16. The expression “jurisdiction” in Section 9A is used in a narrow sense, that is, the Court's authority to entertain the suit at the threshold. The limits of this authority are imposed by a statute, charter or commission. If no restriction is imposed, the jurisdiction is said to be unlimited. The question of jurisdiction, sensu stricto, has to be considered with reference to the value, place and nature of the subject matter. The classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction over the subject-matter is of a fundamental character. Undoubtedly, the jurisdiction of a Court may get restricted by a variety of circumstances expressly mentioned in a statute, charter or commission. This inherent jurisdiction of a Court depends upon the pecuniary and territorial limits laid down by law and also on the subject-matter of the suit. While the suit might be barred due to non-compliance with certain provisions of law, it does not follow that the noncompliance with the said provisions is a defect which takes away the inherent jurisdiction of the Court to try a suit or pass a decree. The law of limitation operates on the bar on a party to agitate a case before a Court in a suit, or other proceedings on which the Court has inherent jurisdiction to entertain but by operation of the law of limitation it would not warrant adjudication.

17. To aid the discussion, a reference may be drawn to the Statement of Objects and Reasons of Section 9A of the Code. The said statement reads as under: “… the Bombay City Civil Court for the purposes of granting interim relief cannot or need not go into the question of jurisdiction. Sometimes declaratory suits are filed in the City Court without a valid notice under section 80 of the Code of Civil Procedure, 1908. Relying upon another judgment of the High Court recorded on the 7-9-1961 in Appeal No. 191 of 1960, it has been the practice of the City Court to adjourn a notice of motion for injunction in a suit filed without such valid notice, which gives time to the plaintiff to give the notice. After expiry of the period of notice, the plaintiff is allowed to withdraw the suit with liberty to file a fresh one. In the intervening period, the Court grants an ad interim injunction and continues the same. This practice of granting injunctions without going into the question of jurisdiction even though raised, has led to grave abuse. It is therefore proposed to provide that if a question of jurisdiction is raised at the hearing of any application for granting or setting aside an order granting an interim relief, the Court shall determine that question first.”

18. Thus, with the intention to put the aforesaid practice to rest, the State Legislature introduced Section 9A by the Amendment Act of 1969 requiring the Court to decide the issue of jurisdiction at the time of granting or vacating the interim relief. In other words, the legislature inserted section 9A to ensure that a suit which is not maintainable for want of jurisdiction of the Court concerned, ought not be tried on merits without first determining the question of maintainability of the suit as to jurisdiction of the Court, approached by the plaintiff, as a preliminary issue.

19. The provision contemplates that when an issue of jurisdiction is raised, the said issue should be decided at first as expeditiously as possible, and not be adjourned to a later date. The primary 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.

20. A perusal of the Statement of Objects and Reasons of the Amendment Act would clarify that Section 9A talks of maintainability only on the question of inherent jurisdiction and does not contemplate issues of limitation. Section 9A has been inserted in the Code to prevent the abuse of the Court process where a plaintiff drags a defendant to the trial of the suit on merits when the jurisdiction of the Court itself is doubtful.

21. In the instant case, the preliminary issue framed by the Trial Court is with regard to the question of limitation. Such issue would not be an issue on the jurisdiction of the Court and, therefore, in our considered opinion, the Trial Court was not justified in framing the issue of limitation as a preliminary issue by invoking its power under Section 9A of the Code. The High Court has erred in not considering the statutory ambit of Section 9A while approving the preliminary issue framed by the Trial Court and thus, rejecting the writ petition filed by the appellant.”

30.1. The decision of the Bombay High Court in Foreshore Co-operative Housing Society Ltd. vs. Praveen D. Desai and Another (supra) was taken to the Hon'ble Apex Court. The Hon'ble Apex Court upheld the decision of the Division Bench of this Court and observed that the issue of limitation is to be tried as a preliminary issue under Section 9A of the CPC thereby upholding the law laid down by the Bombay High Court in Kamlakar Eknath Salunkhe vs. Baburav to be contrary to law. As noted above, in Kamlakar Eknath Salunkhe vs. Baburav Vishnu Javalkar (supra), the Hon'ble Supreme Court had held that limitation could be decided under Section 9A. The Hon'ble Apex Court also considered that the Courts would be guided by the provisions of Order XIV Rule 2 or Section 9A of the CPC in the matter of deciding the objection with regard to the jurisdiction of a court which concerns the bar of limitation as a preliminary issue. Considering the earlier decision in the case of Meher Singh vs. Deepak Sawhny (supra), the Hon'ble Supreme Court observed that Section 9A made a complete departure from the procedure provided under Order XIV Rule 2 of the CPC. That, Section 9A mandates the Court to decide jurisdiction of the Court before proceeding with the suit and granting interim relief by way of an injunction. That, Section 9A provides a self contained scheme with a non-obstante clause which mandates the Court to follow the provision. It is a complete departure from the provisions contained in Order XIV Rule 2. The express mandate of the Section being the intention of the law to decide the issue relating to the jurisdiction of the Court as a preliminary issue notwithstanding the provisions contained in Order XIV Rule 2. Where the suits are governed by the provisions of Order XIV Rule 2, there is a discretion to the Court to decide the issue based on law as a preliminary issue. 30.[2] The Hon'ble Supreme Court observed therefore that Section 9A is mandatory whereas Order XIV Rule 2 is discretionary. Paragraphs 34, 39, 42, 44, 45, 46, 56, 61, 62 and 63 of the said decision are usefully quoted as under:

31. This led to a conflict between the two Judge Bench decisions of the Hon'ble Supreme Court, one in the case of Kamlakar Eknath Salunkhe vs. Baburav Vishnu Javalkar (supra) and the other in the case of Foreshore Co-operative Housing Society Ltd. vs. Praveen D. Desai and Another (supra) and therefore, a reference was made to a Larger Three Judge Bench in the case of Nusli Neville Wadia vs. Ivory Properties (supra).

32. The Hon'ble Supreme Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra) upheld the view taken in Kamlakar Eknath Salunkhe vs. Baburav Vishnu Javalkar (supra) and overruled Foreshore Co-operative Housing Society Ltd. vs. Praveen D. Desai and Another (supra). Paragraphs 14, 15, 20, 21, 31, 32, 33, 34, 35, 45, 48, 49, 50, 51, 52, 53, 54, 56, 61, 63, 76, 88 and 89 of the decision in the case of Nusli Neville Wadia vs. Ivory Properties (supra) are usefully quoted as under:

15. Where in the recent decision of Foreshore Cooperative Housing Society Limited (supra), it has been held that decision in Kamalakar Eknath Salunkhe (supra) is contrary to the law. The word “jurisdiction” in Section 9A is used in a broader sense. It has also been held that Section 9-A is mandatory and a complete departure from the provisions of Order 14 Rule 2. The question of limitation is synonymous 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. This Court in Foreshore Cooperative Housing Society Limited (supra) has observed: (SCC pp. 434-35 & 437, paras 56 & 61-62) “56. With great respect, we are of the view that the decision rendered by the Division Bench in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar, (2015) 7 SCC 321 is contrary to the law settled by the Constitution Bench and three-Judge Benches of this Court, in Pandurang Dhondi Chougule v. Maruti Hari Jadhav (five-Judge Bench), AIR 1966 SC 153 followed by other Division Benches in Manick Chandra Nandy v. Debdas Nandy, (1986) 1 SCC 512, NTPC Ltd. v. Siemens Aktiengesellschaft, (2007) 4 SCC 451, Official Trustee v. Sachindra Nath Chatterjee, AIR 1969 SC 823, ITW Signode India Ltd. v. CCE, (2004) 3 SCC 48 and Kamlesh Babu v. Lajpat Rai Sharma, (2008) 12 SCC 577. The Constitution Bench decision and other decisions given by the larger Bench are binding on us. It appears that those decisions have not been brought to the notice of the Division Bench taking a contrary view.

61. Mr Nariman, learned Senior Counsel appearing for the appellant put heavy reliance on the decision in Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638, for the proposition that a plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. In our considered opinion, in the decision as mentioned earlier, this Court was considering the provision of Order 14 Rule 2 CPC. While interpreting the provision of Order 14 Rule 2 this Court was of the view that the issue on limitation, being a mixed question of law and fact is to be decided along with other issues as contemplated under Order 14 Rule 2 CPC. As discussed above, Section 9A of the Maharashtra Amendment Act makes a complete departure from the procedure provided under Order 14 Rule 2 CPC. Section 9-A mandates the court to decide the jurisdiction of the court before proceeding with the suit and granting interim relief by way of injunction.

62. At the cost of repetition, we observe that Section 9-A provides a self-contained scheme with a non-obstante clause which mandates the court to follow the provision. It is a complete departure from the provisions contained in Order

14 Rule 2 CPC. In other words, the non-obstante clause inserted by the Maharashtra Amendment Act of 1977 in Section 9-A and the express mandate of the section, the intention of the law is to decide the issue relating to the jurisdiction of the court as a preliminary issue notwithstanding the provision contained in Order 14 Rule 2 CPC. However, it is made clear that in other cases where the suits are governed by the provisions of Order 14 Rule 2 CPC, it is the discretion of the court to decide the issue based on the law as a preliminary issue.” It has also been observed that where the suits are governed by the provisions of Order 14 Rule 2, it is the discretion of the Court to decide the issue based on the law as a preliminary issue.

20. Jurisdiction is the power to decide and not merely the power to decide correctly. Jurisdiction is the authority of law to act officially. It is an authority of law to act officially in a particular matter in hand. It is the power to take cognizance and decide the cases. It is the power to decide rightly or wrongly. It is the power to hear and determine. Same is the foundation of judicial proceedings. It does not depend upon the correctness of the decision made. It is the power to decide justiciable controversy and includes questions of law as well as facts on merits. Jurisdiction is the right to hear and determine. It does not depend upon whether a decision is right or wrong. Jurisdiction means power to entertain a suit, consider merits, and render binding decisions, and "merits" means the various elements which enter into or qualify plaintiff's right to the relief sought. If the law confers a power to render a judgment or decree, then the court has jurisdiction. The court must have control over the subject matter, which comes within classification limits of law under which Court is established and functions.

21. The word jurisdiction is derived from Latin words "Juris" and "dico," meaning "I speak by the law" and does not relate to rights of parties as between each other but to the power of the court. Jurisdiction relates to a class of cases to which a particular case belongs. Jurisdiction is the authority by which a judicial officer takes cognizance and decides the cases. It only presupposes the existence of a duly constituted court having control over subject-matter which comes within classification limits of the law under which court has been established. It should have control over the parties litigant, control over the parties' territory, it may also relate to pecuniary as well as the nature of the class of cases. Jurisdiction is generally understood as the authority to decide, render a judgment, inquire into the facts, to apply the law, and to pronounce a judgment. When there is the want of general power to act, the court has no jurisdiction. When the court has the power to inquire into the facts, apply the law, render binding judgment, and enforce it, the court has jurisdiction. Judgment within a jurisdiction has to be immune from collateral attack on the ground of nullity. It has co-relation with the constitutional and statutory power of tribunal or court to hear and determine. It means the power or capacity fundamentally to entertain, hear, and determine.

31. The jurisdiction in Section 9A must be considered in the context it has been used. The word jurisdiction has to be interpreted in the context which has been used in the various provisions. The word “jurisdiction” has been used in CPC in several provisions. Section 9 deals with the jurisdiction to try all suits by a civil court except those which are barred. Section 10 prohibits a Court from proceeding with the trial. Section 11 and Explanation VIII are based upon the principle of res judicata. Section 21 defines objections to a jurisdiction such as the place of suing and competence of Court regarding the pecuniary limits of its jurisdiction. Section 86 prohibits a suit against a foreign State in any Court otherwise competent to try the suit except with the consent of Central Government. Section 135 refers to the matter pending for determination having jurisdiction therein. Order II Rule 3(2) contains a provision concerning the jurisdiction of the Court as regards the suit. Order VII Rule 11(d) deals with the rejection of the plaint on the ground being barred by law. Order VIII Rule 3- A(4) provides a defendant to put forth the objection as to the jurisdiction. Order XIV Rule 2 distinguishes between preliminary issues relating to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Order XXIII Rule 3-A provides that no suit shall lie to set aside a compromise decree. There are various other provisions in which the expression has been used.

32. When we consider provisions in Section 9A, the word jurisdiction is qualified with "to entertain the suit," the expression used is ‘jurisdiction to entertain the suit.' The Court has jurisdiction to entertain a suit when it has jurisdiction to receive it for consideration. If at the threshold, the Court cannot consider it, it can be said that the Court has no jurisdiction to entertain the case. It is like a suit is cognizable by Revenue Court, but it is filed in Civil Court, the Court cannot consider it nor can receive it for trial. It is like the jurisdiction to entertain the criminal appeal when the Court is not having inherent jurisdiction to consider the case; it can be said that the Court has no jurisdiction to entertain. When the separate statutory mechanism is provided for the consideration of a particular dispute and jurisdiction of Civil Court is barred, and if it is brought before the Civil Court whose jurisdiction is barred, it cannot entertain such a suit and receive it for consideration. It can be said that the Court has no jurisdiction to entertain such a suit. When the Court cannot think over to allow itself to consider, it can be said that it has no jurisdiction to entertain. It is like a case is cognizable in a consumer forum; a Civil Court cannot entertain it.

33. The expression “jurisdiction to entertain” is also used in Section 14 of the Limitation Act. The provisions of Section 14 provide that in case a suit is filed in the wrong court and the Court from the defects of jurisdiction is unable to entertain it, the period to institute a suit can be extended.

34. The meaning of the word ‘entertain’ came up for consideration in Kashiram v. Santokhbai, AIR 1958 MP 91. The word ‘entertain’ means to admit for consideration. It does not mean giving relief. When the court receives it for consideration and disposal, according to law, it must be regarded as entertaining the suit or proceedings. The High Court of Madhya Pradesh has observed as under: (SCC Online MP paras 5-8)

5. In our opinion, the contention advanced on behalf of the appellant must be given effect to. We have no doubt that S.14 of the Limitation Act has no application to the facts of this case, and the plaintiff is not entitled to the benefit of that section. Before that section can apply, the prior proceeding must have been founded upon the same cause of action as that on which the later suit is founded and the Court in which the prior proceeding was prosecuted must have been unable to entertain it for the reasons specified, namely, defect of jurisdiction or other cause of a like nature. Now the words 'which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it' which occur in S.14(1) of the Limitation Act are very significant.

6. As pointed out by Mukherjee, J. (as he then was), in Nakul Chandra Ghose v. Shyama Pada Ghose [AIR 1945 Cal 381 (B)], the word 'entertain' means to admit for consideration. It does not mean giving relief, and that when a suit or proceeding is not thrown out in limine but the Court receives it for consideration and disposal according to law, it must be regarded as entertaining the suit or proceeding, no matter whatever the ultimate decision may be; and that a suit is to be regarded as not entertained by the Court only if it is thrown out at its inception and the Court does not decide it on its merits.

7. The learned Judge further observed that S.14 of the Limitation Act speaks of the inability of the Court to entertain a suit or proceeding on certain specific grounds, which are of a formal nature and that inability to entertain a suit means not inability to grant relief to the plaintiff but inability to give him a trial at all. In our opinion when a suit is dismissed not because the Court had no jurisdiction to entertain it, or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not one recognised by law as legal in its initiation, then clearly S.14 of the Act is not attracted to such a suit.

8. This view is amply supported by the cases cited by the learned counsel for the appellant and numerous other cases. Now, here, the plaintiff's prior suit was dismissed not because of any defect of jurisdiction or any other ground similar to it, but it was entertained and dismissed because it was wholly misconceived and the relief of rendition of accounts could not be granted against the son of a deceased agent. The suit was dismissed because the proceedings according to the trial Court were not recognised by law as legal in their initiation. If then, S.14 of the Limitation Act has no applicability to this case, and the plaintiff's suit is governed by Art.89, then it is clearly barred by time and must be dismissed.” The High Court of M.P. has relied upon the decision in Nakul Chandra Ghose v. Shyama Pada Ghose.

35. The expression ‘entertain' means to admit a thing for consideration. When a suit or proceeding is not thrown out in limine, but the court receives it for consideration for disposal under the law, it must be regarded as entertaining the suit or proceeding. It is inconsequential what is the final decision. The word ‘entertain' has been held to mean to admit for consideration, as observed by this Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner, Sales Tax, Kanpur, AIR 1968 SC 488. The expression ‘entertain’ means to adjudicate upon or to proceed to consider on merits as observed in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead) through Legal Representatives, 1971 (3) SCC

124.

45. It is apparent that when a claim is dismissed as barred by limitation, no doubt the refusal is within the realm of exercise of jurisdiction by the Court or Tribunal. It cannot be said that the Court has refused to exercise the jurisdiction to go into the merits by a wrong decision dismissing the case on the ground of limitation. In that context, Pandurang Dhondi Chougule (supra) has been relied upon which has dealt with the question of jurisdiction under Section 115 of CPC. This Court has also observed it in National Thermal Power Corpn. Ltd. (supra) that in the question of jurisdiction, the expression jurisdiction is a word of many hues and having a different meaning in which it is used. There is no dispute as to the above mentioned proposition laid down by this Court. The question in the aforesaid decision was not relating to jurisdiction to entertain the matter and to pass decree immune from collateral challenge. Thus, the decision lends no support to the cause of the respondents.

48. The word "jurisdiction" in Section 9A is qualified with expression to ‘entertain' the suit. Thus, it is apparent that the scope of Section 9-A has been narrowed down by the legislature as compared to the provisions contained in Order 14 Rule 2(2) by not including the provisions as to "a bar created by any other law for the time being in force."

49. Since the expression used in Section 9A as incorporated in Maharashtra, is "jurisdiction to entertain" that is in a narrower sense and its purport cannot be taken to be comprehensive as laid down in Foreshore Cooperative Housing Society Limited (supra).

50. When we consider what colour expression "jurisdiction" has in Section 9A, it is clearly in the context of power to entertain, jurisdiction takes colour from accompanying word ‘entertain’; i.e. the Court should have jurisdiction to receive a case for consideration or to try it. In case there is no jurisdiction, court has no competence to give the relief, but if it has, it cannot give such relief for the reason that claim is time-barred by limitation or is barred by the principle of res judicata or by bar created under any other law for the time being in force. When a case is barred by res judicata or limitation, it is not that the Court has no power to entertain it, but it is not possible to grant the relief. Due to expiry of limitation to file a suit, extinguishment of right to property is provided under Section 27 of the Limitation Act. When Court dismisses a suit on the ground of limitation, right to property is lost, to hold so the court must have jurisdiction to entertain it. The Court is enjoined with a duty under Section 3 of the Limitation Act to take into consideration the bar of limitation by itself. The expression "bar to file a suit under any other law for the time being in force" includes the one created by the Limitation Act. It cannot be said to be included in the expression "jurisdiction to entertain" suit used in Section 9A. The Court has to receive a case for consideration and entertain it, to look into the facts constituting limitation or bar created by any other law to give relief, it has to decide the question on merits; then it has the power to dismiss the same on the ground of limitation or such other bar created by any other law. Thus, the meaning to be given to jurisdiction to entertain in Section 9A is a narrow one as to maintainability, the competence of the court to receive the suit for adjudication is only covered under the provisions. The word entertain cannot be said to be the inability to grant relief on merits, but same relates to receiving a suit to initiate the very process for granting relief.

51. The provision has been carved out under Section 9A, CPC to decide, question of jurisdiction to entertain, at the stage of deciding the interim application for injunction and the very purpose of enactment of the same was that the suits were being instituted without serving a notice under Section 80, which at the time of initial incorporation of provisions could not have been instituted without serving a notice of two months. There was a bar to institute a suit. It became practice that after obtaining injunction, suit was allowed to be withdrawn with liberty to file fresh suit after serving the notice. To take care of misuse of the provisions, Section 9A was introduced in the year 1970 and had been re-introduced again in 1977 to consider question of jurisdiction to entertain at the stage of granting injunction or setting aside. The provision has been inserted having the narrow meaning as at the stage of granting ex parte injunction; the question can be considered. The written statement, set-off and counterclaim are not filed, discovery, inspection, admission, production and summoning of the documents stage has not reached and after the stages described above, framing of issues takes place under Order XIV. As per Order XIV Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the Court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order XIV Rule 2. In Order XIV Rule 2(1), the Court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order XIV Rule 2(2) makes a departure and Court may decide the question of law as to jurisdiction of the Court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.

52. In a case question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976.

53. The suit/application which is barred by limitation is not a ground of jurisdiction of the court to entertain a suit. If a plea of adverse possession has been taken under Article 65 of the Limitation Act, in case it is successfully proved on facts; the suit has to be dismissed. However, it is not the lack of the jurisdiction of the Court that suit has to be dismissed on the ground of limitation, but proof of adverse possession for 12 years then the suit would be barred by limitation such question as to limitation cannot be decided as a preliminary issue.

54. What is intended by Section 9A of the Code of Civil Procedure, 1908 (CPC) is the defect of jurisdiction. It may be inter alia territorial or concerning the subject matter. The defect of jurisdiction may be due to provisions of the law. In Raghunath Das v. Gokal Chand, AIR 1958 SC 827, the execution of award of the decree was dismissed by the Court on the ground that decree was a nullity. The Court had no jurisdiction to pass a decree of the partition of agricultural land. It held that defect of the jurisdiction in the court that passed decree became attached to decree itself as dismissal of the suit was on account of the defect of jurisdiction. Thus, in our considered opinion, it is only the maintainability of the suit before the court which is covered within the purview of Section 9-A CPC as amended in Maharashtra.

56. Within the ken of provisions of Section 9A, CPC jurisdiction of the Court to entertain the suit has to be decided without recording of evidence. Recording of evidence is not contemplated even at the stage of framing issue under Order 14 Rule 2 much less it can be allowed at the stage of grant of injunction, it would be the grossest misuse of the provisions of the law to permit the parties to adduce the evidence, to prove facts with respect to a preliminary issue of jurisdiction to entertain a suit. In case it is purely a question of law, it can be decided within the purview of section 9A of CPC as applicable in Maharashtra. The scope of Section 9A is not broader than Order 14 Rule 2 (2) of the CPC. The scope is a somewhat limited one. Two full-fledged trials by leading evidence are not contemplated in CPC, one of the preliminary issue and another on other issues. Until and unless the question is pure of the law, it cannot be decided as a preliminary issue. In our opinion, a mixed question of law and fact cannot be decided as a preliminary issue, either under Section 9A or under Order XIV Rule 2 CPC. Before or after its amendment of CPC concerning both provisions, the position is the same.

61. In case facts are admitted, no doubt about it that under Order 14 Rule 2, a suit can be decided even as to the question of res judicata, constructive res judicata, and maintainability. However, under Section 9A, the only jurisdiction to entertain has to be decided, where maintainability of the suit is decided concerning the jurisdiction of the Court as a pure question of law at a preliminary stage. Thus, the decision in Abdul Rehman v. Prasony Bai [(2003) 1 SCC 488 rendered at the stage of Order 14 Rule 2, has no application to the controversy at hand.

63. A Three-Judge Bench of this Court in Major S.S. Khanna v. Brig. F.J. Dhillon, AIR 1964 SC 497, has held that jurisdiction to try issues of law apart from the issues of fact may be exercised by the Court if the whole suit may be disposed on the issue of law alone, but the Code confers no jurisdiction upon the Court to try a suit on the mixed issue of law and facts as preliminary issues.

76. In Ittyavira Mathai v. Varkey Varkey and Anr., AIR 1964 SC 907, the question of jurisdiction to try a suit has been distinguished from the error of jurisdiction committed while exercising the same, came up for consideration before Four-Judge Bench of this Court. The Court has observed that decree passed in the suit barred by time cannot be said to be a nullity as the Court passing the same has the jurisdiction over the party and the subject-matter. A wrong decision is not the one for which the Court had no jurisdiction. It had jurisdiction over the subject matter, over the parties and therefore an error of decision would not make a decree beyond jurisdiction. Section 3 of the Limitation Act also came up for consideration, which would be a simple error of law. In the said case jurisdictional issue has been wrongly decided as to limitation. The decision of the Privy Council in Maqbul Ahmad and others v. Onkar Pratap Narain, AIR 1935 PC 85, has also been referred to in Ittyavira Mathai (supra) thus:

88. Given the discussion above, we are of the considered opinion that the jurisdiction to entertain has different connotation from the jurisdictional error committed in exercise thereof. There is a difference between the existence of jurisdiction and the exercise of jurisdiction. The expression jurisdiction has been used in CPC at several places in different contexts and takes colour from the context in which it has been used. The existence of jurisdiction is reflected by the fact of amenability of the judgment to attack in the collateral proceedings. If the court has an inherent lack of jurisdiction, its decision is open to attack as a nullity. 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 14 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 (supra) 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 (supra) 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 (supra) has been correctly decided and cannot be said to be per incuriam, as held in Foreshore Cooperative Housing Society Limited (supra).

89. Section 2 of Maharashtra Second Amendment Act, 2018 which provides that where consideration of preliminary issue framed under Section 9A is pending on the date of commencement of the CPC, the said issue shall be decided and disposed of by the court under Section 9A as if the provision under Section 9A has not been deleted, does not change the legal scenario as to what can be decided as a preliminary issue under Section 9A, CPC, as applicable in Maharashtra. The saving created by the provision of Section 2 where consideration of preliminary issue framed under Section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018, can be decided only if it comes within the parameters as found by us on the interpretation of Section 9A. We reiterate that no issue can be decided only under the guise of the provision that it has been framed under Section 9A and was pending consideration on the date of commencement of the (Maharashtra Amendment) Act, 2018. The reference is answered accordingly.”

33. We are informed that a Review Petition against Nusli Neville Wadia vs. Ivory Properties (supra) was filed by Mr.Sandeep Raheja, the Respondent no.1 through Ferani Hotels Pvt. Ltd. but the same has been dismissed on 23 July

2020.

34. To sum up, the decision in the case of Nusli Neville Wadia vs. Ivory Properties which has observed that only pure question of law concerning the inherent jurisdiction of the Court to entertain the suit (i.e. pure questions with regard to value, place and nature of subject matter) can be decided as a preliminary issue under Section 9A and not matters that would entail decision on mixed question of law and fact requiring evidence, has not only overruled Foreshore Co-operative Housing Society Ltd. vs. Praveen D. Desai and Another (supra) but also overturned the view of this Court in the case of Meher Singh vs. Deepak Sawhny (supra). That, therefore, limitation could not be decided as a preliminary issue under Section 9A as the same would involve consideration of facts and evidence to be led.

35. We observe that the Hon'ble Apex Court in Nusli Neville Wadia vs. Ivory Properties (supra) adopted the ratio of a four Judge Bench of the Hon'ble Supreme Court in Ittyavira Mathai vs. Varkey Varkey29.

36.1. As noted above, the decision in the case of Ittyavira Mathai Vs. Varkey Varkey had been cited before the Bombay High Court in the case of Foreshore Co-operative Housing Society Ltd. vs. Praveen D. Desai and Another30 but had not been followed either by the Bombay High Court Division Bench or by the Hon’ble Supreme Court in Foreshore Cooperative Housing Society Ltd. vs. Praveen D. Desai and Another.

36.2. In this case 23 items of property originally belonging to two persons Ramlinga Iyer and Raman Velayudhan were sold by them on 6-6-1080 (Malayalam era which roughly corresponds to the year 1905) to Ittiyavira, the deceased father of the Appellant – Defendant no.1. Part of the consideration for the sale was paid by Ittiyavira in cash and for the balance, two hypothecation bonds were executed in favour of his vendor son on the same date. One of the bonds was executed in favour of Raman Velayudhan and the amount secured was Rs.308-8-0. In respect of this amount, certain items of property were hypothecated with Raman Veluyadhan by Ittiyavira. The other bond was in favour of Ramlinga Iyer and under this bond, Ittiyavira hypothecated with him certain other items and also the remaining items subject to the hypothecation bonds in favour of Raman Velayudhan for securing an amount of Rs.2,191-8-0. On 3-10-1082 Ramlinga Iyer assigned his hypothecation bond in favour of one Sankara Rama Iyer. The dispute arose with respect to this transaction. According to one of them, the Deed of Assignment was a sham document and was not intended to take effect while according to the other, it was genuine. Ramlinga Iyer executed a promissory note in favour of one Anantha Iyer. After the death of Ramlinga Iyer, Anantha Iyer instituted a suit against Ramlinga Iyer’s son Sankara Subha Iyer for recovery of the amount and obtained a decree on 13-11-1088. Treating the Deed of Assignment executed by Ramlinga Iyer in favour of Sankara Subha Iyer as a sham document, Anantha Iyer attached the mortgagee rights of Ramlinga Iyer in hypothecation bond which had been executed in his favour by Ittiyavira. The rights under this bond were sold in execution and were purchased by Anantha Iyer at Court auction. In a subsequent partition in Anantha Iyer’s family, the right under the hypothecation bond purchased in execution by him were allotted to his share and that of his brother Manicka Iyer. Thereafter, Anantha Iyer and Manicka Iyer instituted a suit against Ittiyavira being O.S.No.59 of 1093 and obtained a decree for realization of the amount against Ittiyavira. The decree holders subsequently transferred their decree to one Venkiteswara Iyer which Venkiteswara Iyer executed and at the Court auction held in execution of the decree, he himself purchased the hypothecated properties which were the suit properties in the suit on 27-4-1099. Venkiteswara Iyer was granted the Sale Certificate by the Court and he obtained possession of the properties on 12-7-1099.

36.3. Anantha Iyer and his brother Ittyavira had even before the institution of the suit, executed a sale deed in favour of his son who was the Appellant before the Hon'ble Supreme Court whereunder he conveyed to him all the properties in the said suit. The sale deed was executed on 8-10-1992. The Appellant was not made a party to the suit filed by Anantha Iyer and his brother and the contention raised by the Respondents was that the sale in favour of the Appellant was not a genuine transaction and therefore, he was not a necessary party to the suit. Ittiyavira died in the year 1107 and on 2-2-1108 Venkiteswara Iyer sold all the suit properties to the plaintiffs-respondents. Thereafter, the respondents instituted proceecdings under Section 145 of the Code of Criminal Procedure in the court of the Magistrate, First Class, Perumbavoor claiming that they were in possession of the suit properties, that the appellant was disputing their possession and that there was a likelihood of a breach of peace because of the attempt of the appellant to "obstruct" their possession. In these proceedings, the properties were attached and placed in the possession of the Receiver appointed by the court. Eventually, the court held that the properties were in the possession of the appellant and ordered that his possession be maintained until otherwise ordered by a competent Civil Court. The order of the Magistrate was affirmed by the Travancore High Court and thereafter, the Receiver handed over the possession of the properties to the appellant. Consequent upon this order the respondents instituted a suit out of which this appeal arises. Their contention in the suit is that the alleged sale by Ittiyavira in favour of the appellant is a sham transaction, that therefore he did not obtain any rights, thereunder and that consequently it was not necessary to implied him in O. S. No. 59 of 1093. They also alleged that Mathai Ouseoh did not obtain any rights under his auction purchase because the sale and delivery of possession in execution of the decree in O. S. No. 462 of 1094 were benami for Ittiyavira. For this reason, it was contended that defendant No. 2 acquired no rights to items 3, 5, 14 and 18 in the plaint. The appellant disputed the validity of the decree and of the execution proceedings in O. S. No. 497 of 1088 and contended that the decree was obtained and the execution proceedings taken out, fraudulently against Ramalinga Iyer's heirs inasmuch as Ramalinga Iyer had assigned the hypothecation bond in favour of Sankara Rama Iyer on 3-10-1082. The plea of the appellant thus was that Anantha Iyer did not obtain any rights to the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer, and consequently, Venkiteswara Iyer obtained no rights under his purchase in execution of the decree in O. S. No. 59 of 1093. The entire proceedings were characterised as fraudulent and not binding on Ittiyavira and the suit properties. The allegation that the alleged sale in favour of the appellant was a sham transaction was denied by them as also the other allegations concerning the purchase of items 3, 5, 14 and 18 by Mathai Ouseph.

36.4. The Trial Court dismissed the suit. The High Court reversed the decree except with respect to certain items. No cross-appeal or cross-objection was filed and therefore, the appeal before the Apex Court was confined to the remaining items in the schedule.

36.5. The first point that was raised on behalf of the Appellant was that the decree in Suit No.59 of 1093 obtained by Anantha Iyer and his brother in the suit on hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. It was observed that in assuming that the suit was barred by time, it was difficult to appreciate the contention on behalf of the Appellant that the decree could 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 committing an illegality and therefore, the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. The Apex Court observing that it was 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 that if it decided wrong, it would not be doing something which it had no jurisdiction to do. It had jurisdiction over the subject matter and it had the jurisdiction over the party and therefore, merely because it made an error in deciding the vital issue in the suit, it cannot be said that it had acted beyond jurisdiction. 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.

36.6. The Apex Court observed 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 effect to it even though the point of limitation is not referred to in the pleadings. That does not mean 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 matter laid down in the CPC. If the party aggrieved does not take appropriate steps to have an error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.

36.7. Referring to the above case of Ittyavira Mathai v. Varkey Varkey (supra), the Apex Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra), has observed in Paragraph No.76 as under:

76. In Ittyavira Mathia v. Varkey Varkey31, the question of jurisdiction to try a suit has been distinguished from the error of jurisdiction committed while exercising the same, came up for consideration before the four-Judge Bench of this Court. The Court has observed that decree passed in the suit barred by time cannot be said to be a nullity as the court passing the same has the jurisdiction over the party and the subject-matter. A wrong decision is not the one for which the court had no jurisdiction. It had jurisdiction over the subject matter, over the parties and therefore, an error of decision would not make a decree beyond jurisdiction. Section 3 of the Limitation Act also came up for consideration, which would be a simple error of law. In the said case, jurisdictional issue has been wrongly decided as to limitation. The decision of the Privy council in Maqbul Ahmad v. Pratap Narain Singh, has also been referred to in Ittyavira Mathai32 thus:

“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 Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. Even assuming 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 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 nullifies. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul - Ahmed v. Onkar Pratap Narain (1), 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. Act that the decision relied upon says 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 effect 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 Code. 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.”

37. As noted above, the learned Single Judge has framed two questions, one whether the Suit as filed is barred under the Benami Act and by limitation. The learned Single Judge has himself observed in Paragraphs 2, 13, 15, 24, 28, 29, 30 of impugned order that the issues of limitation and benami property were mixed questions of fact and law requiring evidence.

38. Respondents no.1-4’s written submissions at Page 97 of the Appeal Memo (paragraphs 13 to 27, 28, 29, 34, 38) also admit and demonstrate that the questions of limitation and benami property are disputed questions and require evidence.

39. The bar of Benami under Benami Act requires examination of factual aspects including the exceptions to Section 2(9) and 4(3). The question whether a transaction is Benami or not is therefore one of fact requiring evidence. Paragraphs 6 and 7 in the case of Jaydalal Poddar vs. Bibi Hazra33 support this view and are quoted as under:

40. There is, therefore, no dispute that limitation and benami transactions being mixed questions of fact and law, require evidence. That being the position, such questions in view of paragraphs 50, 54, 56 of Nusli Neville Wadia vs. Ivory Properties (supra) cannot be decided under Section 9A.

41. Therefore, in view of the law settled in the case of Nusli Neville Wadia vs. Ivory Properties (supra), we have no doubt in holding that, in the facts of this case, limitation and benami transactions are not covered within the ambit of “jurisdiction of the Court to entertain” under Section 9A of the CPC and cannot be decided as preliminary issues under Section 9A of the CPC. Section 9A only deals with issues of whether the Court does or does not have jurisdiction to entertain a suit.

42. There can be no doubt that the law laid down in Nusli Neville Wadia vs. Ivory Properties (supra) was always the law (i.e. even at the time when the impugned order dated 11 September 2015 was passed) and we agree with the Counsel for the Appellant that the entire matter, therefore, is required to be looked at through the lens of the 3-Judge Judgment in Nusli Neville Wadia vs. Ivory Properties (supra).

43. The impugned order is therefore a nullity as where consideration of a preliminary issue under Section 9A is pending, it can be decided only if it comes within the parameters laid down in Nusli Neville Wadia vs. Ivory Properties (supra). Hence, clearly, the impugned order which proceeded on the basis that evidence could, and should have been led, is in our view, contrary to the law laid down by 3- Judges in Nusli Neville Wadia vs. Ivory Properties (supra) and will be required to be set aside.

44. Mr. Khambata, learned Senior Counsel for the Respondents has relied upon the decision of the Hon’ble Supreme Court in the case of Sukhbiri Devi and others Vs. Union of India and Others34 to submit that the said decision follows Nusli Neville Wadia. It is observed that the said decision revolves around the Order 14 Rule 2 of the CPC. Order 14 Rule 2 and Section 9A are not synonymous as although both contemplate deciding preliminary issues, they operate in two different spheres viz. the enquiry under Section 9A is limited to the “jurisdiction to entertain” the suit, i.e. inherent jurisdiction be it pecuniary, territorial or subjectmatter of the Court to receive/entertain the suit, whereas, under Order 14 Rule 2, the Court may decide preliminary issues relating to any law, such as limitation. Courts having inherent jurisdiction may decide issues such as limitation, benami, etc., under Order 14 Rule 2 from the perspective of a bar to the grant of relief, but not from the perspective of the “jurisdiction to entertain”.

45. Paragraphs 16 to 19 of the said decision clearly indicate that the said decision deals with Order 14 Rule 2 and not Section 9A. These are usefully quoted as under:-

“16. Now, we will consider the first question: ‘whether the issue of limitation can be determined as a preliminary issue under Order XIV, Rule 2, CPC’. It is no longer res integra. In the decision in Mongin Realty and Build Well Private Limited vs. Manik Sethi, even while holding that the course of action followed by the learned Trial Judge of directing the parties to address arguments on the issue of limitation as irregular since it being a case where adduction of evidence was required, a two-Judge Bench of this Court referred to a three-Judge Bench decision of this Court in Nusli Neville Wadia Vs. Ivory Properties observing that the issue therein was whether the issue of limitation could be determined as a preliminary issue under Order XIV, Rule 2, CPC. After taking note of the fact that going by the decision in Nusli Neville Wadia’s case, in a case where question of limitation could be decided based on admitted facts it could be decided as a preliminary issue under Order XIV, Rule 2(2)(b), CPC., the two- Judge Bench held that in the case before their Lordships the question of limitation could not have been decided as a preliminary issue under Order XIV, Rule 2 of CPC as determination of the issue of limitation in that case was not a pure question of law. In the said contextual situation it is worthy and appropriate to refer to paragraphs 51, in so far as it is relevant, and 52 of the decision in Nusli Neville Wadia’s case and they read thus:- “51.[…] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and is the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.

52. […] In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2) (b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed and the question of law is dependent upon the outcome of the investigation of the facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976.” (Emphasis added)

17. In view of the legal position obtained from the decision in Nusli Neville Wadia’s case the following decisions also assume relevance. In the decision in National Insurance Co. Ltd. Vs. Rattani this Court held that an admission made in the pleadings by a party is admissible in evidence proprio vigore. Equally well settled is the principle of law that an admission made by a party in his pleadings is admissible against him proprio vigore (see the decisions in Ranganayakamma & Anr. Vs. K.S. Prakash (Dead) By LRs. & Ors. and Vimal Chand Ghevarchand Jain & Ors. Vs. Ramakant Eknath Jadoo.

18. In the context of the usage of the expression “admitted facts” in paragraph 52 of the decision in Nusli Neville Wadia’s case and the word ‘admission’ employed the National Insurance CO. Ltd. case a reference to Sections 17, 18 and 58 of the Indian Evidence Act would not be inappropriate. A conjoint reading of the said provision would reveal that ‘statements’ by a party to proceedings are admissions and facts admitted need not be proved.

19. We referred to the said provisions and decisions only to stress upon the point that the appellants cannot legally have any dispute or grievance in taking their statements in the plaint capable of determining the starting point of limitation for the purpose of application of Order XIV, Rule 2(2)(b) of the CPC. Though, limitation is a mixed question of law and facts it will shed the said character and would get confined to one of question of law when the foundational fact(s), determining the starting point of limitation is vividly and specifically made in the plaint averments. In such a circumstance, if the Court concerned is of the opinion that limitation could be framed as a preliminary point and it warrants postponement of settlement of other issues till determination of that issue, it may frame the same as a preliminary issue and may deal with the suit only in accordance with the decision on that issue. It cannot be said that such an approach is impermissible in law and in fact, it is perfectly permissible under Order XIV, Rule 2(2)(b), CPC and legal in such circumstances. In short, in view of the decisions and the provisions, referred above, it is clear that the issue limitation can be framed and determined as a preliminary issue under Order XIV, Rule 2(2)(b), CPC in a case where it can be decided on admitted facts.”

46. In our view, therefore, the reliance by the Respondents on the decision in the case of Sukhbiri Devi (supra) does not lend assistance to the case of the Respondents.

47. Learned Senior Counsel for the Respondents has contended that the Appellant had elected and consented to have the suit decided on the preliminary issues of limitation and Benami without leading evidence.

48. In this context, it is pertinent to refer to the decision of the learned Single Judge dated 8 December 2014 which is quoted as under:- “1. The following preliminary issues are framed by consent. (a) Whether the Suit as filed is barred under the provisions of the Benami Transactions Act? (b) Whether the Suit is barred by limitation?

2. On instructions, Mr. Parsurampuria, learned Advocate for the Plaintiff, states that the Plaintiff does not wish to lead evidence on either of the two preliminary issues.

3. In that view of the matter, list the suit on 22nd December 2014 at 3.00 p.m. for hearing on the preliminary issues along with all Notices of Motion.

4. In view of this, no ad-interim reliefs are pressed at this stage.”

49. Mr. Khambata has relied on the aforesaid order of the learned Single Judge to contend that the issues have been framed by consent of the appellant as well and now the appellant cannot contend that the same is void in view of the decision of the Hon’ble Supreme Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra).

50. A bare reading of the order dated 8 December 2014 no where suggests that preliminary issues have been framed by consent such as to confer jurisdiction upon the court to decide preliminary issues irrespective of the law settled by the Apex Court that for deciding preliminary issues under section 9A only pure question of law can be considered without requiring any evidence to be led.

51. It is settled law that consent cannot confer jurisdiction where there is none. Paragraph No.1 of the order does not suggest that the appellants have waived their right to raise legal issues. There cannot be any estoppel against law.

52. Further, the expression ‘consent’ in the order dated 8 December 2014 was only with regard to the manner in which the issues were to be framed. There was no consent to the effect and there could not have been such consent that the issues of limitation and benami were to be decided under Section 9A with the consent of both the parties. The expression ‘consent’ appearing in order dated 8 December 2014 is to be construed with reference to the surrounding or attending circumstances at that time. In this context the decision of the Apex Court in the case of Parayya Allayya Hittalamani vs. Sri Parayya Gurulingayya Poojari35 is relevant. Paragraphs 14 to 18 of the said decision are usefully quoted as under:

“14. A consent decree, as is well known, is a contract between the parties with the seal of the Court super added to it. [See Baldevdas Shivlal v. Filmistan Distributors (India) (P) Ltd. and Hindustan Motors Ltd. vs. Amritpal Singh Nayar.]

15. We are, however, not oblivious of the fact that such consent decree may operate as an estoppel. [See Sailendra Narayan Bhanja Deo. v. State of Orissa].

16. It is equally well settled that which construing a decree, the court can and in appropriate case ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree, the Court has to ascertain the circumstances under which these words came to be used. (See Bhavan Vaja v. Solanki Hanuji Khodaji Mansang).

17. It is now also a trite law that in the event the document is vague, the same must be construed having regard to surroundings and/or attending circumstances.

18. The nature of the document also plays an important part for construction thereof. The suit filed by the parties, inter alia, involved the question of interpretation of the said consent decree. The parties adduced evidences, inter alia, in regard to the nature of poojas and offerings made to the priest in their individual capacity. The dispute between the parties related to right of worship upon inheritance thereof from their predecessor. Their rights in regard to offer poojas in the temple are itself not in dispute. In a case of this nature where a consent decree does not refer to the entire disputes between the parties and some vagueness remained, the factual background as also the manner in which existence of rights have been claimed by the parties would be relevant.”

53. In any event, as noted above, consent which is contrary to law cannot be binding on the Appellant as there cannot be any estoppel against law.

54. In our view, the Respondent’s interpretation is misplaced. A plain reading of the order dated 8 December 2014 as well as impugned judgment dated 8 and 11 September 2015 clearly indicate that although the learned Single Judge kept importuning the Appellant to lead evidence as the same was necessary to decide the issues but the appellant refused to do so. There is a difference between refusing to lead evidence and evidence not being required to be led. In the facts of the case as borne out from the orders, the evidence was necessary to be led to decide the preliminary issues. Just because now that the Appellant can raise a point in the light of the Apex Court decision in the case of Nusli Neville Wadia vs. Ivory Properties (supra), objection cannot be raised to state that decision on preliminary issues on the basis of admission and pleadings ought to be considered without having to lead evidence. It is also evident from the above order that the Plaintiff, the Appellant herein, did not wish to lead evidence on either of the two preliminary issues.

55. Therefore, whether or not the appellant gave consent or elected to have the preliminary issues decided, that cannot come in the way of the law settled in the case of Nusli Neville Wadia vs. Ivory Properties (supra) being applied. The law laid down in Nusli Neville Wadia vs. Ivory Properties (supra) was always the law and the Appeal/ impugned order will have to be tested on that basis.

56. Further, though Mr. Khambata has contended that preliminary issues can be decided by a court on admitted facts without evidence, and that admissions in pleadings or judicial admissions stand on a higher footing than evidentiary submissions and are the best proof of the facts admitted, learned senior counsel has failed to appreciate that in the decision in the case of Nusli Neville Wadia vs. Ivory Properties (supra), the Apex Court has clearly observed that for a preliminary issue to be decided under section 9A, it only be a pure question of law concerning inherent jurisdiction of the court to entertain the suit but not a question of limitation or benami being a mixed question of law and fact particularly in the face of the clear finding by the learned Single Judge that evidence would be required to be led to decide the issues raised.

57. In view of the above discussion, the Respondents’ reliance on the decision in the case of Chopda Automobiles Finance, Hyderabad vs. Sheikh Shabbir Sheikh Noor (supra), is therefore irrelevant as there was no question of consenting to have a preliminary issue decided under Section 9A. Once a preliminary issue under Section 9A was raised the Court had no option but to frame the issue and hear it.

58. Also, the reliance of the learned Senior Counsel for the Respondents on the judgment in the case of Ferani Hotels Pvt. Ltd. vs. Nusli Neville Wadia and Ors. (supra) is misplaced. It is clearly noted in this judgment that under Section 9A(1), the Court is obligated to raise an issue of jurisdiction to be tried as a preliminary issue. Further, we are of the view that the minimal enquiry at the very threshold contemplated in paragraph 19 is with regard to the bonafides of the objection raised by the objector viz., the Respondents nos.[1] to 4 in this case. The said Respondents sought to rely upon paragraph 18 to argue that the framing of an issue under Section 9A is not a matter of course and that there is a modicum of discretion vested in the Judge framing the issue, however, this discretion or enquiry is only in respect of the validity or bonafides of the objection. We, therefore, do not find any merit in this objection raised on behalf of the Respondents.

59. In fact the Appellant’s decision not to lead evidence is irrelevant and immaterial as the objection under Section 9A must be decided without recording evidence. The decision of the Apex Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra) clearly bars the Appellant from leading evidence for our deciding the issue on jurisdiction. The Respondents contention that the Appellant’s decision to not lead evidence converted mixed questions of fact and law into pure questions of law, and therefore, could be decided under Section 9A also appears to be misplaced.

60. The Respondents’ reliance on the decision in the case of Chopda Automobiles Finance, Hyderabad vs. Sheikh Shabbir Sheikh Noor (supra), in our view, therefore, is irrelevant as there was no question of consenting to have a preliminary issue decided under Section 9A. Once a preliminary issue under Section 9A was raised, the Court had no option but to frame the issue and hear it.

61. With respect to the contention which has been raised on behalf of the Respondents that the Appellant having consented and elected to have the Suit decided on the preliminary issues of limitation and benami without leading evidence, the Appellant is now estopped from taking an inconsistent plea. In the light of what we have observed above and the decision in the case of Nusli Wadia this is not a case of approbation or reprobation. The Respondents have also relied upon the decision in the case of Chittoori Subbanna vs. Kudappa Sabanna and Ors. (supra). Paragraph 55 was relied upon to submit that once a party abstains from raising an objection it could have raised in a suit, it was not open to raise the said objection in a Appeal. That, the Appellant ought not to be allowed to resile from the position she consented to in the suit viz. to frame the issues of limitation and benami act as well as not to lead evidence in respect of the said issues. Firstly, in our view, paragraph 55 is the minority view and as far as paragraph 11 is concerned that does not assist the case of the Respondents, in view of what we have observed as above.

62. With respect to the decision in the case of Mumbai International Airport Pvt. Ltd. vs. Golden Chariot Airport & Anr. (supra) relied upon by the Respondents, we are of the view that in light of the decision of the Apex Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra) the Court is mandatorily required to frame the preliminary issues under Section 9A, and therefore, the question of consent would not arise. Also, as discussed above, the consent was to the manner in which the issues were framed, and therefore, there would be no question of the Appellant resiling from the consent given to hear the issues under Section 9A. In any event, there cannot be any estoppel against law. Therefore, the case of Mumbai International Airport Pvt. Ltd. vs. Golden Chariot Airport & Anr. (supra) would not assist the case of the Respondents.

63. With respect to the contention on behalf of the Respondents that the Appellant’s decision to not lead evidence has converted mixed questions of fact and law into pure questions of law and therefore could be decided under Section 9A, we are of the view that the very fact that the learned Single Judge has held that evidence had to be led to decide either of the two issues, in the light of the decision of the Apex Court in the case of Nusli Neville Wadia vs. Ivory Properties (supra) that question would need to be decided by the learned Single Judge in view of the law settled by the Apex Court. The enquiry under Section 9A, as noted above, is limited to the inherent jurisdiction of the Court to entertain a suit.

64. We now come to the Respondents contentions regarding applicability of Order 14 Rule 2, Order 7 Rule 11 and Section 151 of the CPC. It is not in dispute that the Respondents no.1 to 4 had raised the preliminary objections under Section 9A. These objections were decided by the learned Single Judge under Section 9A. Order 14 Rule 2 and Section 9A are not synonymous although both contemplate decision on preliminary issues involving pure questions of law without recording evidence. That, they operate in two different spheres. The enquiry under Section 9A is limited to the jurisdiction to entertain the Suit. It deals with the inherent jurisdiction of the Court, pecuniary, territorial or subject matter. Under Order 14 Rule 2, the Court decides preliminary issues relating to any law such as limitation from the perspective of a bar to grant of relief by virtue of limitation or benami. Order 7 Rule 11 is materially different from Section 9A. Under Order 7 Rule 11 the plaint can be rejected under any law. Section 9A is limited to the Court’s inherent jurisdiction to entertain suit. In this context, the decision of the Hon'ble Supreme Court in the case of Pawan Kumar vs. Babulal (supra) becomes relevant. Paragraph 13 is quoted as under: “13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject-matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property vs. SBI Staff Association: (SCC p. 515, para 10)

65. Therefore, where the property held Benami falls under the exception set out in Section 4(3) cannot be decided under Order 7 Rule 11 since the matter requires evidence. This ratio would apply with greater vigour to Section 9A.

66. Further, in our view, Section 151 of the CPC also cannot be invoked with reference to a matter which is otherwise covered by a specific provision of the CPC. Section 151 cannot be adopted to defeat the mandate of Section 9A. Paragraph 26 to 35 of the decision of the Hon'ble Supreme Court in the case of Vinod Sheth vs. Devindar Bajaj36 is usefully quoted as under:

35. We appreciate the anxiety shown by the High Court to discourage land-grabbers, speculators, false claimants and adventurers in real estate from pressurizing hapless and innocent property owners to part with their property against their will, by filing suits which are vexatious, false or frivolous. But we cannot approve the method adopted by the High Court which is wholly outside law. In a suit governed by the Code, no court can, merely because it considers it just and equitable, issue directions which are contrary to or not authorized by law. The courts will do well to keep in mind the warning given by Benjamin N. Cardozo in The Nature of the Judicial Process: (Yale University Press -1921 Edition Page 114): “The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in social life’. The High Court can certainly innovate, to discipline those whom it considers to be adventurers in litigation, but it has to do so within the four corners of law.”

67. Therefore, the decisions in the cases of Dahiben vs. Arvindbhai Kalyanji Bhanushali (supra), Nimbanna Chandrappa vs. Shivananda Kinnal and Anr. (supra), Sakshi and Anr. vs. Darshan Singh (supra) and Sree. Surya Developers and Promoters vs. N Sailesh Prasad and Ors.(supra), in our view, would not apply to this case as the said decisions are with respect to Order 7 Rule 11. Also, the decisions in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal (supra) and K.K.Velluswamy vs. N. Palanisamy (supra) do not apply to this case as the same pertain to Section 151.

68. Having observed as above, the present Appeal being tested on the touchstone of Section 9A in the light of the decision in the case of Nusli Neville Wadia vs. Ivory Properties (supra), the order and judgment dated 8 and 11 September 2015 clearly holding the requirement of evidence to decide the preliminary issues will have to be set aside and is hereby set aside.

69. The Suit No.777 of 2014 is restored to file and to proceed afresh. We make it clear that we have not expressed any opinion on the merits of this case and if at all there is any such expression, the same has been only to decide this Appeal. All contentions on merits are expressly kept open.

70. Notice of Motion No. 1211 of 2014 pending in the suit is also restored to file.

71. Once an objection under Section 9A is raised, it is mandatory for the Court to decide the objection before the application for interim relief was taken up. Therefore, at the request of Mr. Setalvad, Interim Application No. 607 of 2020 is disposed as not being pressed with liberty to file a similar application in the Suit before the learned Single Judge.

72. Court fees paid during the filing of the Appeal be refunded, as the Appellant has paid full Court fees of Rs.3,00,000/- in the Suit as well as the Appeal.

73. Appeal stands allowed in the above terms. Parties to bear their respective costs.

74. We place on record our appreciation for the research and erudite presentation by the learned Counsel for the parties into the background of this legal controversy. (ABHAY AHUJA, J.) (NITIN JAMDAR, J.)