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A Administrative Aspects of the Anisminic case”, Law Quarterly Review, Vol. 85,1969, p. 198). Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court.” (emphasis supplied) It has been laid down that erroneous decision on the question of res judicata or limitation would not oust the jurisdiction of the Court nor render the decision a nullity liable to collateral attack. The test of having no jurisdiction by the Court is that its judgment is amenable to attack in collateral proceedings.

42Copy pinpoint42. In Budhia Swain & others v. Gopinath Deb and others, (1999) 4 SCC 396 = AIR 1999 SC 2089, the Court examined the issue whether decree passed by the civil court in a suit which was barred by limitation can be treated to be a nullity or not. It was observed that since the civil court had the jurisdiction to decide the suit although filed beyond limitation, the same was not a nullity and observed thus: “14. A suit or proceeding entertained and decided in spite of being barred by limitation is not without jurisdiction; at worst it can be F a case of illegality. ….” Thus, it is apparent that in a case barred by limitation, Court has jurisdiction to decide the issue. In case it has no jurisdiction, it cannot decide such an issue on merits at all. G IN RE: JURISDICTION TO ENTERTAIN UNDER SECTION 9A, CPC

43Copy pinpoint43. The word “jurisdiction” in section 9A is qualified with expression to ‘entertain’ the suit. Thus, it is apparent that the scope of Section 9A has been narrowed down by the legislature as compared to the provisions contained in Order XIV Rule 2(2) by not including

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the provisions as to “a bar created by any other law for the time being in force.”

44Copy pinpoint44. 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). B

45Copy pinpoint45. 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 E “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.

46Copy pinpoint46. 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 H

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A 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 B 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 C 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 D 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 E 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. F

47Copy pinpoint47. In a case question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order XIV Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order XIV 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

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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.

48Copy pinpoint48. 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. C

49Copy pinpoint49. 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. D 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.

50Copy pinpoint50. Reliance has been placed on the provisions of Section 3 of the Limitation Act to submit that the Court cannot proceed with the suit which is barred by limitation although limitation has not been set up as a defence. No doubt about it that Section 3 of the Act provides that subject to the provisions contained in Sections 4 to 24 of the Limitation Act, every suit instituted, appeal preferred, and the application made after the prescribed period shall be dismissed, it nowhere provides that Court has no jurisdiction to deal with the matter. Until and unless Court has the jurisdiction, it cannot proceed to dismiss it on the ground of limitation under Section 3.

51Copy pinpoint51. 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 XIV Rule 2 much less it can be H

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A 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 XIV 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. IN RE: ORDER XIV RULE 2

52Copy pinpoint52. The expressions used in the Order XIV Rule 2 as incorporated in the CPC by way of Amendment Act, 1976, firstly deals with the jurisdiction of the Court or secondly a bar to the suit created by any law for the time being in force. The expression used in the Order XIV Rule 2(2)(a) deals with the jurisdiction of the Court.

53Copy pinpoint53. In Sajanbir Singh Anand and others v. Raminder Kaur E Anand and others, 2018 (3) Mh.L.J. 892; the question came up for consideration as to the period of limitation for filing administration suit. It has been observed the relief claimed by the plaintiff has to be decided on facts of the case, and aspect of limitation would have to be considered in the context. In an administration suit, the Limitation Act, F 1963 does not prescribe specific article for determining the period of limitation. There is no specific article for determination of the period of limitation. The pleadings and the prayers of a suit for administration would have to be analysed, and after that, the relevant article is to be made applicable.

54Copy pinpoint54. The submission was raised that Section 9A is repugnant to Order XIV Rule 2. We have interpreted Section 9A and we find that the scope of Section 9A is different as compared to the provisions of Order XIV Rule 2 and the scope of Section 9A is limited not as comprehensive as that of Order XIV Rule 2. However, the concept of Order XIV Rule 2 with respect to what can be treated as preliminary issue will be applicable under Section 9A only in case question of

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“jurisdiction to entertain” arises, i.e., if it can be decided purely as question of law, at the stage contemplated under Section 9A, not in case if it is a mixed question of law and fact, no evidence can be recorded to decide the question under Section 9A, CPC.

55Copy pinpoint55. In Abdul Rahman v. Prasony Bai and another, (2003) 1 SCC 488, the provisions of Order XIV Rule 2 came up for consideration. B Where facts are admitted, suit can be disposed of on preliminary issue and no particular procedure need be followed by the Court. It has been held that in particular, if facts are admitted, the issue of res judicata and constructive res judicata and also maintainability of the suit should be decided as a preliminary issue. Following observation is relevant: C “21. For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order 14 Rule 1 of the Code of Civil Procedure, a civil court can dispose of a suit on preliminary issues. D It is neither in doubt nor in dispute that the issues of res judicata and/or constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues.” E (emphasis supplied) In case facts are admitted, no doubt about it that under Order XIV 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 (supra) rendered at the stage of Order XIV Rule 2, has no application to the controversy at hand.

56Copy pinpoint56. In Gunwantbhai Mulchand Shah v. Anton Elis Farel and others, (2006) 3 SCC 634, the suit was filed for specific performance. The Court held that the question of limitation in the facts could not have been decided as a preliminary issue. The suit could not have been dismissed as barred by limitation for the relief of specific performance. Though the Court held that there was jurisdiction, the matter was H

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A remitted to the trial court to decide all the issues, including limitation after parties adduced evidence. In Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd., (1998) 5 SCC 69, it is observed that there is jurisdiction to entertain when the question is of applicability of Section 10. This Court in Sneh Lata Goel v. Pushplata and others, (2019) 3 SCC 594 observed that given the provisions of B Section 21 of CPC, no objection as to the place of suing should be allowed by the appellate court unless there is a consequent failure of justice. An objection raised in adjudicating court was as to territorial jurisdiction, which did not travel to the root or to the inherent lack of jurisdiction of a civil court to entertain the suit. The competence to try C a case has been considered in Hiralal Patni v. Kali Nath, AIR 1962 SC 199 referred to in Sneh Lata Goel (supra), in which this Court has observed thus: “13. Sub-section (1) of Section 21 provides that before raising an objection to territorial jurisdiction before an appellate or D revisional court, two conditions precedent must be fulfilled: (i) The objection must be taken in the court of first instance at the earliest possible opportunity; and (ii) There has been a consequent failure of justice. E This provision which the legislature has designedly adopted would make it abundantly clear that an objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. Hence, it has to be raised before the court of first instance at the earliest opportunity, and in all cases where issues are settled, on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both these conditions have to be satisfied.

14. The learned counsel appearing on behalf of the respondents has submitted that the objection as to the lack of territorial jurisdiction was raised in the written statement before the trial court. But evidently, the suit was decreed ex parte after the respondents failed to participate in the proceedings. The provisions of Section 21(1) contain a clear legislative mandate that an objection of this nature has to be raised at the earliest possible

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opportunity before issues are settled. Moreover, no such objection can be allowed to be raised even by an appellate or revisional jurisdiction, unless both sets of conditions are fulfilled.” It is in the context of the inherent lack of jurisdiction to entertain the suit, the expression has been used in Section 9A. IN RE: MIXED QUESTION OF LAW AND FACT AND B ORDER VII RULE 11 CPC

57Copy pinpoint57. 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.

58Copy pinpoint58. In Narne Rama Murthy v. Ravula Somasundaram & Ors. (2005) 6 SCC 614, this Court has held that even if it is apparent from the plaint averment only, that suit is barred by limitation, it can be tried as a preliminary issue even in the absence of plea of limitation raised by the defendants. However, in cases where the question of limitation is a mixed question of fact and law and suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation, which have been pleaded have to be proved, on issues raised and decided on evidence. However, in our considered opinion question of limitation, in no case, can be said to be a question of jurisdiction of the Court in the context it has been used in Section 9A CPC.

59Copy pinpoint59. In Satti Paradesi Samadhi and Pillayar Temple v. M. Sankuntala (Dead) through Legal Representatives and others, F (2015) 5 SCC 674, it has been observed that issue of limitation requiring an inquiry into the facts, cannot be tried as a preliminary issue. The mixed questions of law and facts cannot be decided as a preliminary issue.

60Copy pinpoint60. In Ramdayal Umraomal v. Pannalal Jagannathji, 1979 G M.P.L.J 736, a Full Bench of Madhya Pradesh High Court has observed that under Order XIV Rule 2, mixed questions of law and fact requiring recording of evidence cannot be tried as a preliminary issue. The issue of jurisdiction can be tried as a preliminary issue when it is an issue of law requiring no evidence to be adduced. Various High Courts have taken a similar view in several decisions in Sunni Central Waqf Board H

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A and others v. Gopal Singh Vishrad and others, AIR 1991 All 89, Venkatesh r. Desai v. Smt. Pushpa Hosmani & Ors., ILR 2018 Kar 5095, Prithvi Raj v. Munnalal, 1957 RLW 323, Bhag Singh v. Nek Singh 1994 SCC OnLine P&H 594, State Trading Corporation of India Ltd. v. Government of the Peoples Republic of Bangladesh, ILR (1997) Del 229, Naresh Chandra Das v. Gopal Chandra Das, B AIR 1991 Cal 237, Taj Kerala Hotels & Resorts Ltd. v. Easytec India Pvt. Ltd., 2013 SCC OnLine Ker 20240, Madhabananda Govindasamy v. Manickam & Ors., 2016-1-L.W. 49, Angsley Investment Ltd. v. Turus Shipping Service & Ors., AIR 2007 Guj 23; Chandrama Singh v. (D) through LRs v. Ram Kishore Agrawal C & Ors., 2016 SCC OnLine Chh 1740, Naresh Chandra Gautam v. Chhote Khan, 2003 SCC OnLine Utt 12, Ramagya Tiwari v. Shib Kumar Sah & Ors., 2018 SCC OnLine Jah 578, Lalchand Sha & Ors. v. Kalabati Devi & Ors., (2008) 2 Gau LR 561 and J Mnthamma & Anr. v. Bayya Iiglamma & Ors.

61Copy pinpoint61. In Vaish Aggarwal Panchayat v. Inder Kumar and others, AIR 2015 SC 3357, the question came up for consideration of rejection of the plaint under Order VII Rule 11 on the ground that same being barred by limitation. Mere ex facie reading of the plaint, it could not be held that the suit was barred by time. The question of limitation becomes a mixed question of facts and law and cannot be decided as a E preliminary issue as the framing of issues and taking evidence was necessary.

62Copy pinpoint62. In our opinion, it cannot be laid down as proposition of law under Order VII Rule 11(d) that plaint cannot be rejected as barred by limitation. It can be said that it is permissible to do so mainly in a case where the plaint averment itself indicate the cause of action to be barred by limitation and no further evidence is required to adjudicate the issue.

63Copy pinpoint63. In Hareendran and others v. Sukumaran and others, (2018) 14 SCC 187, this Court has laid down that question of limitation in the case being mixed question of law and facts, could not have been decided as preliminary issue. The provision under which a plaint can be rejected is provided in Order VII Rule 11(d). The language used in Order VII Rule 11 is where averments made in plaint does not disclose a cause of action; relief claimed is undervalued, and the plaint is not corrected in spite of the direction of the Court; plaint is insufficiently stamped, and in spite of Court’s order the plaintiff has failed to supply

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the requisite stamp duty; where the suit appears from the statement in the plaint to be barred by any law; where it is not filed in duplicate; and where plaintiff fails to comply with the provisions of rule 9. What is of significance under Order VII Rule 11 is that from the averments of plaint itself the suit is barred by any law and it would include limitation also including bar created by any other law for the time being in force. B For the rejection of plaint, averments made by the defendant in the written statement or otherwise cannot be seen, only the averments of the plaint are material and can be taken into consideration and no other evidence.

64Copy pinpoint64. The question concerning Order VII Rule 11 came up for consideration in Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta C and Ors., (2006) 5 SCC 638, as to the determination of the question of limitation as a preliminary issue. The Court observed that the starting point of limitation has to be ascertained on facts in every case. A plea of limitation cannot be decided as an abstract principle of law divorced from the facts for rejection of the plaint under Order VII Rule 11(d). D In the case of a disputed question of fact, the question of limitation cannot be decided as a preliminary issue without a decision on facts based on the evidence that has to be adduced by the parties. The Court has no jurisdiction under Order XIV Rule 2 to decide a mixed question of law and facts as a preliminary issue. Following observations have been made: E

“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that where issues both of law and fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 and it was held as under (SCR p. 421) “Under Order 14 Rule 2, Code of Civil Procedure where issues both of law and fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. H

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A The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit.” Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the above-quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.” D

65Copy pinpoint65. (a) Reliance has been placed on various decisions, under Order VII Rule 11(d) in which expression has been used that plaint has to be rejected if any law bars it as per the averments made in the plaint. In Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Lrs., AIR 2019 SC 1430, it was held as under: E “7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the original Plaintiff himself executed the gift deed along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the Plaintiff. It is the case of the Plaintiff that the gift deed was a showy deed of gift, and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the Plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed - brother of the Plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the Appellant herein-

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original Defendant who filed the suit in the year 2001 for partition, and the said suit was filed against his brothers to which the Plaintiff was joined as Defendant No. 10. It appears that the summon of the suit filed by the Defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the Defendant No. 10- Plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e., the period from 1981 till 2001/2003, the suit property was mortgaged by the Appellant herein-original Defendant and the mortgage deed was executed by the Defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the Plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (AIR 1977 SC 2421) (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC.” 65.(b) In N.V. Srinivasa Murthy & others v. Mariyamma (Dead) by proposed LRs. & Ors., (2005) 5 SCC 548, this Court observed as under: E

“16. The High Court does not seem to be right in rejecting the plaint on the ground that it does not disclose any “cause of action.” In our view, the trial court was right in coming to the conclusion that accepting all averments in the plaint, the suit seems to be barred by limitation. On critical examination of the F plaint as discussed by us above, the suit seems to be clearly barred on the facts stated in the plaint itself. The suit as framed is prima facie barred by the law of limitation, provisions of the Specific Relief Act as also under Order 2 Rule 2 of the Code of Civil Procedure.” G

65. (c) This Court in Suman Devi v. Manisha Devi & others, (2018) 9 SCC 808, observed as under: “10. The Haryana Panchayati Raj Act, 1994 is a complete code for the presentation of election petitions. The statute has mandated that an election petition must be filed within a period H

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A of 30 days of the date of the declaration of results. This period cannot be extended. The provision of Section 14 of the Limitation Act, 1963 would clearly stand excluded. The legislature having made a specific provision, any election petition which fails to comply with the statute is liable to be dismissed. The High Court has failed to notice both the binding judgments of this Court and its own precedents on the subject, to which we have referred. The first respondent filed an election petition in the first instance to which there was an objection to maintainability under Order 7 Rule 11 CPC. Confronted with the objection under Order 7 Rule 11, the first respondent obviated a decision thereon by withdrawing the election petition. The grant of liberty to file a fresh election petition cannot obviate the bar of limitation. The fresh election petition filed by the first respondent was beyond the statutory period of 30 days and was hence liable to be rejected.” D The decisions described above under Order VII Rule 11, CPC do not advance the submissions raised on behalf of respondents. In case averments in the plaint indicate that suit is barred, it is liable to be rejected before the stage of Section 9A of CPC comes. Thus, the stage at which Order VII Rule 11(d) has to be applied, is at the threshold and the scope of Section 9A is somewhat limited and different. Though E the scope of rejection of plaint under Order VII Rule 11(d) is broad enough which includes rejection of the plaint in case any law bars it, however, only the averments in the plaint have to be seen, nevertheless Section 9A is limited in its operation as to the jurisdiction of the Court to entertain a suit. F IN RE: DECISION IN FORESHORE COOPERATIVE HOUSING SOCIETY LIMITED

66Copy pinpoint66. Now we consider decision relied on Foreshore Cooperative Housing Society Limited (supra) in which decision of the Court in Pandurang Dhondi Chougule (supra) and other decisions have been relied on. G

67Copy pinpoint67. In Pandurang Dhondi Chougule (supra), a decision of Constitution Bench of this Court, the question of “jurisdiction” came up for consideration in the context of provisions contained in Section 115 of CPC to the extent of revisional powers of the High Court as to what would constitute an error of question of law. The Court has observed thus:

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“10. Judicial decisions have examined the provisions of S.115 of the Code on several occasions. While exercising its jurisdiction under S.115, it is not competent to the High Court to correct errors of fact however gross they maybe, or even errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself. As Cls. (a), (b) and (e) of S.115 indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S.115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High Court under S.115.” E The High Court while exercising powers interfered in the question of adjustment of debt on the ground that the district court has made wrong construction of particular decree. The question arose whether the High Court could have corrected such an error in the exercise of the revisional jurisdiction under Section 115 of CPC. This Court laid down that the High Court has exceeded its jurisdiction as the High Court is not competent to correct the error of fact, however, gross they may be or even errors of law, unless the said errors have relation to the jurisdiction. In case the Court has exercised jurisdiction vested in it illegally, or with material irregularity, the High Court can interfere. Given the context of section 115, CPC, the Constitution Bench has observed that plea of limitation is a plea of law, which concerns the jurisdiction of the court which tries the proceedings. The Constitution Bench has not laid down that question of limitation, and res judicata have to be tried as a preliminary issue. It cannot be disputed as observed by this Court that the question of res judicata and limitation pertains to the H

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A question of jurisdiction of the Court to pass a decree in the proceeding. In case proceeding is barred by limitation, the Court has no jurisdiction to pass a decree. The court had inherent jurisdiction and in the course of proceeding how the jurisdiction is to be exercised and what amounts to a case of a wrong decision in the course of the exercise of jurisdiction is another colour in which jurisdictional error has been gauged in B Pandurang Dhondi Chougule (supra). It was not a case of want of the existence of jurisdiction to decide the issue. The question of limitation and res judicata, are to be decided within the realm of exercise of jurisdiction following the law. The finding on the pleas mentioned above may oust the jurisdiction of the Court to pass a decree C as other laws bar it. Thus, these pleas can be termed as concerning with the question of jurisdiction, in the exercise thereof they have to be decided. The decision renders no help to espousing the cause of the respondents. In Foreshore Cooperative Housing Society Limited (supra) the court has wrongly applied a different colour of jurisdiction used under section 115 CPC which was dealt with in Pandurang D Dhondi Chougule case (supra). It is a mismatch and does not merge with the context of provisions of section 9A CPC.

68Copy pinpoint68. 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: “8. The first point raised by Mr. Paikedy for the appellant is that the decree in OS No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by H Ittiyavira in favour of Ramalinga Iyer was a nullity because the

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suit was barred by time. Even assuming that the suit was barred by time, it is difficult to appreciate the contention of the 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 illegality, and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. However, it is well settled that a court having jurisdiction over the subject-matter of the suit and the parties to it, 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 nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85 and contended that since the court is bound under the provisions of S.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. All that the decision relied upon says is that S.3 of the Limitation Act is peremptory and that the court has 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.” G

69Copy pinpoint69. The respondents have relied upon the decision in Manick Chandra Nandy v. Debdas Nandy and others, (1986) 1 SCC 512, in which again question of exercise of revisional jurisdiction of the High Court under Section 115 of CPC arose. This Court pointed out the difference between revisional and appellate jurisdiction. The trial court H

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A held that the application under Rule 13 of Order IX, CPC not to be barred by limitation. This Court observed that the High Court is not competent in exercise of its revisional jurisdiction to come to a different conclusion by examining the facts. Article 123 of the Limitation Act came up for consideration in the case when the applicant knew of the passing of the decree. Knowledge of passing of decree is a question B of fact and would be a collateral fact upon which the determination of the question of jurisdiction of the court would depend. It was again a case of exercise of jurisdiction by the Court, in that context, observations have been made about Section 115 which provides that in case jurisdiction has been exercised illegally or with material irregularity, the C High Court can interfere under Section 115 of CPC, not otherwise. In Manick Chandra Nandy (supra), the following observations have been made: “5. We are constrained to observe that the approach adopted by the High Court in dealing with the two revisional applications was one not warranted by law. The High Court treated these two applications as if they were first appeals and not applications invoking its jurisdiction under Section 115 of the Code of Civil Procedure. The nature, quality, and extent of appellate jurisdiction being exercised in the first appeal and of revisional jurisdiction are very different. The limits of revisional jurisdiction are prescribed and its boundaries defined by Section 115 of the Code of Civil Procedure. Under that section revisional jurisdiction is to be exercised by the High Court in a case in which no appeal lies to it from the decision of a subordinate court if it appears to it that the subordinate court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity. The exercise of revisional jurisdiction is thus confined to questions of jurisdiction. While in a first appeal the court is free to decide all questions of law and fact which arise in the case, in the exercise of its revisional jurisdiction the High G Court is not entitled to reexamine or reassess the evidence on record and substitute its findings on facts for those of the subordinate court. In the instant case, the respondents had raised a plea that the appellant’s application under Rule 13 of Order IX was barred by limitation. Now, a plea of limitation concerns the jurisdiction of the court which tries a proceeding, for a finding

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on this plea in favour of the party raising it would oust the jurisdiction of the court. In determining the correctness of the decision reached by the subordinate court on such a plea, the High Court may at times have to go into a jurisdictional question of law or fact, that is, it may have to decide collateral questions upon the ascertainment of which the decision as to jurisdiction depends. For the purpose of ascertaining whether the subordinate court has decided such a collateral question rightly, the High Court cannot, however, function as a court of first appeal so far as the assessment of evidence is concerned and substitute its own findings for those arrived at by the subordinate court unless any such finding is not in any way borne out by the evidence on the record or is manifestly contrary to evidence or so palpably wrong that if allowed to stand, would result in grave injustice to a party.” The word jurisdiction has a different contour under Section 115, CPC. The decision has no relevance as to the interpretation of the expression ‘jurisdiction to entertain’, the context in which it has been used in Section 9A.

70Copy pinpoint70. Reliance has also been placed on ITW Signode India Ltd. v. Collector of Central Excise, (2004) 3 SCC 48, in which it has been observed that question of limitation involves a question of jurisdiction. E Finding of fact on the question of jurisdiction would be a jurisdictional fact. Such a question has to be determined having regard to the facts and law. Following observations have been made: “69. The question of limitation involves a question of jurisdiction. The finding of fact on the question of jurisdiction would be a F jurisdictional fact. Such a jurisdictional question is to be determined having regard to both fact and law involved therein. The Tribunal, in our opinion, committed a manifest error in not determining the said question, particularly, when in the absence of any finding of fact that such short-levy of excise duty related G to any positive act on the part of the appellant by way of fraud, collusion, wilful misstatement or suppression of facts, the extended period of limitation could not have been invoked and in that view of the matter no show-cause notice in terms of Rule 10 could have been issued.” H

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A The above decision is of no help as it dealt with the exercise of jurisdiction when the Court has it. The observation has been made not in the context of lack of jurisdiction to entertain a suit.

71Copy pinpoint71. Reliance has further been placed on Kamlesh Babu and others v. Lajpat Rai Sharma and others, (2008) 12 SCC 577, in which B question arose for consideration as to the finding of the trial court which held that the suit was barred by limitation though the judgment was reversed by the First Appellate Court. The previous finding was not dealt with by the First Appellate Court or the High Court. This Court held that plea of limitation maybe a mixed question of law and facts. This Court considered the provisions of limitation and Order VII Rule C 11(d) and observed that in case of suit appears from the statement made in the plaint to be barred by law of limitation, the question of law as to jurisdiction of a Court goes to the very root of the court’s jurisdiction to entertain and decide a matter as otherwise decision rendered without jurisdiction will be a nullity. The expression nullity used by Division D Bench in Kamlesh Babu (supra) cannot be said to be in the context of the limitation, but the question of jurisdiction when the Court has no power to try the suit. In our opinion, a wrong decision on the question of limitation will not render judgment a nullity. With great respect we observe that the expression used by this Court in para 23 that wrong decision on the question of limitation would render a judgment of the E Court having jurisdiction to decide the issue as a nullity is ex facie incorrect. It may be a case of illegal exercise of jurisdiction to decide the issue, but judgment would not be a nullity.

72Copy pinpoint72. The decision in Indian Farmers Fertilizer Cooperative Limited v. Bhadra Products, (2018) 2 SCC 534, has been referred by F respondents in which the question came up for consideration as to the issue of the decision on limitation. This Court has observed that wrong decision on the question of limitation or res judicata would oust the jurisdiction of the Court. The scope of jurisdiction under Section 16 of the Arbitration and Conciliation Act, 1996 has been explained. In our opinion, the issue of res judicata and limitation can be decided if the G Court has jurisdiction to entertain a suit, not otherwise.

73Copy pinpoint73. The question of jurisdiction came up for consideration in Indian Farmers Fertilizer Cooperative Limited (supra), in which this Court observed that same is power of the court to hear and determine a case and to adjudicate or exercise any judicial power and its contextual interpretation has to be made. The Court observed:

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74Copy pinpoint74. The decisions of Bombay High Court have also been relied upon by the learned senior counsel appearing for the respondents. In H

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A Smithkline Beecham Consumer Healthcare (supra), the Court has observed that legislature has used the word in Section 9A in the broader sense and the Court is required to consider the bar to the maintainability of the suit under Section 9A of CPC. The High Court held that it has a broader meaning where a statute bars the suit. In our opinion, the decision cannot be said to be laying down the law correctly and as such same is overruled. Reliance has also been placed on Sudesh v. Abdul Aziz, 2001 (1) Mh.L.J. 324, in which the High Court has observed that the law has been laid down that any question of limitation based upon the issue of jurisdiction has to be decided as a preliminary issue. The view taken by the Court that since it is a mixed question of law and facts, could not be decided at the stage, was held to be erroneous under Section 9A. The decision in Sudesh v. Abdul Aziz (supra) cannot be said to be laying down the law correctly and is as a result of this overruled.

75Copy pinpoint75. Reliance has been placed on the decision of Shraddha Associates v. St. Patrick’s Town Co-operative Housing Society Ltd., D 2003 (2) Mh.L.J. 219, wherein a view has been taken that issue regarding limitation can be decided as a preliminary issue. Observations made in Shraddha Associates (supra) about the question of limitation for Section 9A cannot be said to be laying down the correct proposition of law. Similar view taken in Foreshore Cooperative Housing Society E Limited v. Praveen D. Desai, (2009) 1 AIR Bom R 477, Royal Palms (India) P. Ltd. v. Bharat Shah, (2009) 2 Bom CR 622, Mukund Ltd. v. MIAL, 2011 (2) Mh.L.J. 936, Jagshi Shah v. Shaan Builders, (2012) 3 Bom CR 770, Ferani Hotels P. Ltd. and another v. Nusli Neville Wadia and others, 2012 SCC OnLine Bom 1994, Naresh Lachnmandas Aswani v. Haridas Aswani and others, 2013 SCC F OnLine Bom 1368 and Union of India and others v. N.K. Bhog and others, 2015 SCC OnLine Bom 664, cannot be said to be laying down the law correctly in regard to scope of Section 9A CPC as applicable in Maharashtra. IN RE: LITERAL INTERPRETATION G

76Copy pinpoint76. The learned counsel appearing for the respondents urged that the Court cannot twist the clear language of the enactment to avoid any real or imaginary hardship which such literal interpretation may cause. Reliance has also been placed on Rohitash Kumar and others v. Om Prakash Sharma and others, (2013) 11 SCC 451, in which following observations have been made:

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“23. There may be a statutory provision, which causes great hardship or inconvenience to either the party concerned, or to an individual, but the court has no choice but to enforce it in full rigour. It is a well-settled principle of interpretation that hardship or inconvenience caused cannot be used as a basis to alter the meaning of the language employed by the legislature if such meaning is clear upon a bare perusal of the statute. If the language is plain and hence allows only one meaning, the same has to be given effect to, even if it causes hardship or possible injustice. [Vide CIT (Ag) v. Keshab Chandra Mandal AIR 1950 SC 265 and D.D. Joshi v. Union of India (1983) 2 SCC 235.]

24. In Bengal Immunity Co. Ltd. v. State of Bihar AIR 1955 C SC 661 (SCC p. 685, para 43) it was observed by a Constitution Bench of this Court that, if there is any hardship, it is for the legislature to amend the law, and that the court cannot be called upon to discard the cardinal rule of interpretation for the purpose of mitigating such hardship. If the language of an Act is sufficiently clear, the court has to give effect to it, however inequitable or unjust the result may be. The words, “dura lex sed lex,” which mean “the law is hard, but it is the law” may be used, to sum up, the situation. Therefore, even if a statutory provision causes hardship to some people, it is not for the court to amend the law. A legal enactment must be interpreted in its plain and literal sense, as that is the first principle of interpretation.

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A 26. Therefore, it is evident that the hardship caused to an individual, cannot be a ground for not giving effective and grammatical meaning to every word of the provision if the language used therein is unequivocal. Addition and subtraction of words

28. The statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. G The courts have to administer the law as they find it, and it is not permissible for the court to twist the clear language of the enactment in order to avoid any real or imaginary hardship which such literal interpretation may cause.

29. In view of the above it becomes crystal clear that under the garb of interpreting the provision, the court does not have the

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A 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 XIV Rule 2, it is open to decide preliminary issues if it is purely a question of law not a mixed question of law and fact by recording evidence. The decision in Foreshore Cooperative Housing Society Limited (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). 77.(b) 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 E 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, F 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. G

78Copy pinpoint78. Let the matters be placed before an appropriate Bench for consideration on merits.

Devika Gujral Reference answered.