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

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.

When does the right to sue accrue? - Limitation Act, 1963

(Image taken from here.)

As per Article 58 of, under Part II of the Schedule of the Limitation Act, 1963, ("the Act") the period of limitation to obtain any declaration (other than those classes of declarations mentioned in Articles 56 and 57 of the Act) is three years from the date the 'right to sue first accrues'. 

Article 113, on the other hand, which is the residuary article states that the period of limitation for any suit for which no period of limitation is provided elsewhere the Schedule, is three years from the date the 'right to sue accrues'.

It is often difficult to ascertain when the right to sue accrues, especially in declaratory suits in which there may not even be a clear cause of action. Courts have analyzed these phrases and laid down guidelines to determine when the 'right to sue accrues' or when the 'right to sue first accrues'.