Tuesday, April 14, 2015

SC: Limitation Not a Preliminary Issue under Section 9A (Per Incuriam?)

Supreme Court of India Section 9A Code of Civil Procedure Kamalakar Eknath Salunkhe Baburav Vishnu Javalkar & Ors Section 9A which was inserted by a State Amendment to the Code of Civil Procedure, 1908 provides that when 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 and the court must first proceed to determine the issue of jurisdiction as a preliminary issue before granting for setting aside the order granting the interim relief.
Till date, the Judges of the Civil Courts in Maharashtra would entertain even issues of limitation in section 9A applications. However, the Hon’ble Supreme Court has recently held in Kamalakar Eknath Salunkhe vs. Baburav Vishnu Javalkar & Ors. (Civil Appeal No. 1085 of 2015) that the word ‘jurisdiction’ used in section 9A did not include issues of limitation. However, the judgement has received some criticism, even from the Judges of the Supreme Court itself.