Bombay High Court
Paresh Damodardas Mahant vs Arun Damodardas Mahant(Since ... on 7 July, 2022
Bench: G.S. Patel, Madhav J. Jamdar
7-OSIA-1515-2022.DOC
Sonali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 662 OF 2014
Digitally
signed by
SONALI
SONALI MILIND
Paresh Damodardas Mahant ...Appellant
MILIND PATIL
PATIL Date:
2022.07.08
14:27:52
+0530
Versus
Arun Damodardas Mahant (since deceased) ...Respondent
through legal heirs 1(a) Rani Arun Mahant & Ors
WITH
INTERIM APPLICATION NO. 1515 OF 2022
IN
APPEAL NO. 662 OF 2014
Paresh Damodardas Mahant ...Applicant
Versus
Arun Damodardas Mahant (since deceased) ...Respondent
through legal heirs 1(a) Rani Arun Mahant & Ors
WITH
INTERIM APPLICATION NO.1316 OF 2022
IN
APPEAL NO. 662 OF 2014
Paresh Damodardas Mahant ...Applicant
Versus
Arun Damodardas Mahant (since deceased) ...Respondents
through legal heirs 1(a) Rani Arun Mahant & Ors
Mr Sarosh Bharucha, i/b Sanjay Sinha, for the Applicant/Appellant.
Dr Sujay Kantawala, with Anupam Dighe & Minal Pawar, i/b India
Law Alliance, for Respondents Nos. 1(a) to 2.
Page 1 of 5
7th July 2022
7-OSIA-1515-2022.DOC
Mr Suhas Deokar, with Atmaram Patade, Yash Patade & Suraj Naik,
i/b Atmaram Patade, for Respondent No.4.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 7th July 2022
PC:-
1. The Appeal is directed against an order of 13th October 2014.
By that order, the learned Single Judge framed a preliminary issue of
jurisdiction on the basis of a bar of limitation. This was under
Section 9-A of the Code of Civil Procedure, 1908 as it then stood for
Maharashtra. That Maharashtra amendment has subsequently been
deleted.
2. The only point canvassed and not seriously contested before
us today is that the three-judge decision of the Supreme Court in
Nusli Neville Wadia v Ivory Properties & Ors1 clearly lays down that
limitation cannot be taken as a bar of jurisdiction. Paragraph 88 of
Ivory Properties reads 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
1(2020) 6 SCC 557.
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7-OSIA-1515-2022.DOC
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 9-A 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 Coop. Housing Society Ltd. cannot be
said to be laying down the law correctly. We have
considered the decisions referred to therein, they are in
different contexts. The decision of the Full Bench of the
High Court of Bombay in Meher Singh holding that under
Section 9-A 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 Eknath Salunkhe has been correctly decided and
cannot be said to be per incuriam, as held in Foreshore Coop.
Housing Society Ltd."
3. By way of abundant caution, we also note the decision of the
Supreme Court in Kamalakar Eknath Salunkhe v Baburav Vishnu
Javalkar & Ors2 and in Shyam Madan Mohan Ruia & Ors v Messer
Holdings Ltd & Ors.3 In Salunkhe, after explaining the concept of
'jurisdiction' and its jurisprudential contours in paragraph 16, the
Supreme Court said:
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
2 (2015) 7 SCC 321.
3 (2020) 5 SCC 252.
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7-OSIA-1515-2022.DOC
under Section 9-A of the Code. The High Court has erred
in not considering the statutory ambit of Section 9-A while
approving the preliminary issue framed by the trial court
and thus, rejecting the writ petition filed by the appellant.
(Emphasis added)
In Messer Holdings, the Supreme Court applied Ivory Properties
(which reaffirmed the correctness of Salunkhe) and said:
18. In view of the judgment passed by the Hon'ble
three-Judge Bench reported in Nusli Neville Wadia v.
Ivory Properties [(2020) 6 SCC 557 : (2019) 13 Scale
620], the question of limitation will have to be
considered along with other issues that would arise for
adjudication in Suit No. 2410 of 2008 filed by
Respondent 1 (MHL). Certain observations have been
made by the learned Single Judge as well as by the Division
Bench on the merits of the matter and the contention of the
parties. In our view, the trial in Suit No. IV -- 2410 of 2008
has to be proceeded independently on its own merits. In
view of the judgment [Nusli Neville Wadia v. Ivory
Properties, (2020) 6 SCC 557 : (2019) 13 Scale 620] by
the three-Judge Bench, the decision rendered by the
learned Single Judge as well as by the Division Bench on
the issue of limitation by considering that as preliminary
issue would become nullity and the matter would have to
proceed afresh.
(Emphasis added)
4. In light of this, the impugned order is set aside. The suit is
restored to file and will continue. All interim orders as they stood
before the date of the impugned order including the interim order of
8th May 2014 will continue until further orders.
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5. There are several IAs in the Appeal. Liberty to the Applicant
to file these very IAs in the Suit itself. All contentions are expressly
kept open.
6. The Appeal and all IAs in the Appeal, whether listed or
unlisted today, are disposed of in these terms.
(Madhav J. Jamdar, J) (G. S. Patel, J)
7th July 2022
