Section 9A of CPC and the Maharashtra amendment.

Timeline of events

1908 – The CPC was enacted

1950 – Constitution came into force, where civil procedure was inserted into the concurrent
list. Therefore both the central and the state governments had powers to rule upon it.

1970 – Maharashtra State legislature amends via Code of Civil Procedure (Maharashtra
Amendment) Act, 1970 and inserts Section. 9A into the CPC

1976 – The central government via Code of Civil Procedure (Amendment) Act, 1976
extensively amends the CPC, which leads to the automatic repeal of Section 9A (Maharashtra
Amendment)

1977 – Maharashtra state legislature reinstates Section 9A via Code of Civil Procedure
(Maharashtra Amendment) Act, 1977.

2018 – Maharashtra deletes Section 9A via Code of Civil Procedure (Maharashtra

Amendment) Ordinance, 2018

Why was Section 9A introduced?

In the case of Institute Indo-Portuguese v. Theotonio Borges1 the Bombay HC held that in
cases where the applicant seeks the appointment of a receiver, the court shall presume that the
case has been filed within proper jurisdiction and will not look into the question of
jurisdiction. This led to the misuse of the provision, where applicants would file suits for ad
interim reliefs against the government without providing a 60 day notice, because the
applicants were aware that the court was not going to look into the procedural inadequacies.

In order to avoid this, the Maharashtra government introduced 9A.

What was Section 9A? and What led to its removal?

Section 9A mentioned that in case any applicant files a suit for any interim relief, and if the
other party raises a question of jurisdiction the same “shall” be decided as a preliminary
issue. This meant that the court first has to establish that it is competent to try the suit and
then move ahead with the case. The judgement on the preliminary issue could be challenged
by the way of appeal.
1
AIR 1959 Bom 275
Prima facie, this amendment aimed to correct the misuse of the law and also aimed at not
wasting judicial time. As for example, a court proceeds on a case on merits, and later finds
out that it is not competent to try the suit, it would lead to immense wastage of time.

However, a few problems were created. Firstly, the CPC already had a provision under Order
XIV Rule 2, that if the court feels that in a case with mixed questions of law and fact exist
and decision on the question of law only would be sufficient to dispose off the case, the court
“may” decide that question of law, if related to jurisdiction or bar to suit, as a preliminary
issue. For example, A files a suit against B for non-payment of rent in the city civil court of
Bombay. However, all tenancy suits are heard by the small causes court, hence the city civil
court does not have the jurisdiction in the present case. Thus, it would be a waste of time, if
the court first gets into the factual issues of the parties and decides on the claim of rent and
later realises that it does not have the jurisdiction, thus wasting all the factual decisions made.
In such a case, it would make more sense for the court to first decide the jurisdiction and then
proceed with the matter.

However, the problem with Section 9A and O. XIV R. 2 is that, the order provides for a
discretionary power, where courts can decide on case to case basis. However, 9A makes it
mandatory for the courts to look into the jurisdiction. Therefore it was unclear as to which
was to be relied on. However, in the case of Foreshore Co-operative Housing Society Ltd. vs.
Praveen D.Desai (Dead) thr. Lrs. and Ors, (Now stands repealed, however the enunciation
with respect to the relationship between the two stands valid) it was held that 9A took
precedence over the Order, since it was mandatory in a nature.

Secondly, as per 9A when a judgement is passed on the jurisdictional question in an interim

relief matter, the same was subject to appeal up until the SC. This led to many matters of
interim relief being pending for years. Thus the intention with which the section was enacted
in the first place was itself destroyed.

This led to the government of Maharashtra to delete the Sec. 9A from CPC. And restore the
position of 1976. Thus, the position as it stands today is that the courts now have a
discretionary power to decide on preliminary issues as per O.XIV R.2

What about the cases pending under Sec. 9A at the time the ordinance was passed?

The Maharashtra government provided a few clarifications wrt to sub judice cases:

1. Pending sub judice cases will be treated as if filed under O.XIV

 2. In case of previous orders:
a. Dismissed i.e. the court has said that it has the jurisdiction, the appeals shall be
abated.
b. Dismissed but appeal already filed, the ground of objection under 9A will be
treated as ground of appeal
c. Allowed i.e. the court has said that it does NOT have the jurisdiction, and an
appeal has been filed, the same shall be proceeded as if the ordinance was not
promulgated.

A few months later the Maharashtra government amended the section 3 of the Ordinance
which brought the amendment and added a savings clause according to which, Section 2 of
the Amendment Act provided that if the court has ordered to decide an issue as a preliminary
issue before the date of deletion of Section 9A, it shall be decided by the court as a
preliminary issue.

Supreme Court on interpretation of the term “jurisdiction” in Sec. 9A

Two opposing views were seen in the SC with regards to the interpretation of the word
Jurisdiction under 9A included Limitation.

In the case of Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors.,2 the court
relied on a narrower interpretation of jurisdiction and said that “the word "jurisdiction" in
Section 9A is used in a narrow sense as to maintainability, only on the question of inherent
jurisdiction and does not contemplate issues of limitation”. However, the case of Foreshore
Cooperative Housing Society Limited v. Praveen D. Desai (Dead) through legal
representatives and others3 held that “that the word "jurisdiction" under Section 9A is wide
enough to include the issue of limitation as the expression has been used in the broader sense
and is not restricted to conventional definition under pecuniary or territorial jurisdiction” and
thus limitation was also a preliminary issue.

In order to resolve this, a reference was made to the SC in the case of Nusli Neville Wadia v.
Ivory Properties & Ors4 where it clarified that: “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
2
(2015) 7 SCC 321
3
(2015) 6 SCC 412
4
[SLP (Civil) Nos. 31982 – 31983 of 2013]
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.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 reliefs on merits, but same relates to receiving a suit to initiate the very process of
granting relief.”

Thus limitation is not included in the term “jurisdiction” under 9A but is included under
O.XIV R. 2

For more information, refer

1. https://www.mondaq.com/india/constitutional-administrative-law/750618/reversing-
an-old-folly-section-9a-of-civil-procedure-code-1908
2. https://www.thehindu.com/news/cities/mumbai/maharashtra-ordinance-deletes-
section-9a-of-cpc/article24283269.ece
3. https://www.tclindia.in/section-9a-cpc-as-introduced-by-maharashtra-amendment-act-
will-prevail-over-section-9-cpc/
4. https://www.mondaq.com/india/civil-law/875336/whether-limitation-can-be-decided-
as-a-preliminary-issue-under-section-9a-of-the-code-of-civil-procedure
5. Cases Cited in the footnotes.