NUSLI NEVILLE WADIA v. IVORY PROPERTIES & ORS.

The Judgment of the Court was delivered by B ARUN MISHRA, J.

1Copy pinpoint1. The reference has been made by a Division Bench of this Court vide order dated 17.8.2015, doubting the correctness of the decision of this Court in Foreshore Cooperative Housing Society C Limited v. Praveen D. Desai (Dead) through Legal Representatives and others, (2015) 6 SCC 412 with respect to the interpretation provisions contained in Section 9A of the Code of Civil Procedure, 1908 (for short, ‘the CPC’) as inserted by the Maharashtra Amendment Act,

1977. It has been opined that the word “jurisdiction” under Section 9A is wide enough to include the issue of limitation as the expression has D been used in the broader sense and is not restricted to conventional definition under pecuniary or territorial jurisdiction, the decision in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors., (2015) 7 SCC 321, taking contrary view, is per incuriam in view of the larger Bench decision in Pandurang Dhondi Chougule and Ors. E v. Maruti Hari Jadhav and Ors, AIR 1966 SC 153 as well as other larger Bench decisions.

2Copy pinpoint2. In Kamalakar Eknath Salunkhe (supra) this Court has opined that issue of limitation cannot be decided as a preliminary issue of jurisdiction under Sec 9, Reference has been made because of divergence in views.

3Copy pinpoint3. The question arises for consideration as to the interpretation of expression ‘jurisdiction of the Court to entertain such suit’ used in Section 9A of CPC. Section 9A had been introduced initially by the Code of Civil Procedure (Maharashtra Amendment) Act, 1970 and after that reintroduced with slightly modified terms by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977. After its repeal it had been re-enacted with effect from 19.12.1977. It was felt necessary to reintroduce it after the extensive amendment made by the Parliament in CPC by way of Amendment Act, 1976 with effect from 1.2.1977. H

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4Copy pinpoint4. Before we dilate further on the issue, we consider it appropriate to refer to the Statement of Objects and Reasons under the original enactment at the time of introduction of Section 9A in the year 1970. Following is the Statement of Objects and Reasons as mentioned in the Gazette dated 15.12.1969: B “STATEMENT OF OBJECTS AND REASONS The effect of the judgment of the High Court in Institute Indo- Portuguese vs. Borges, (1958) 60 Bom. L.R. 660 is that the Bombay City Civil Court to grant interim relief cannot or need not go into the question of jurisdiction. Sometimes declaratory suits are filed in the City Court without a valid notice under section 80 of the Code of Civil Procedure, 1908. Relying upon another judgment of the High Court recorded on the 7 th September 1961 in Appeal No.191 of 1960, it has been the practice of the City Court to adjourn a notice of motion for an injunction in a suit filed without such valid notice, which gives time to the plaintiff to give the notice. After expiry of the period of notice, the plaintiff is allowed to withdraw the suit with liberty to file a fresh one. In the intervening period, the Court grants an ad interim injunction and continues the same. This practice of granting injunctions, without going into the question of jurisdiction even though raised, has led to grave abuse. It is therefore proposed to provide that if a question of jurisdiction is raised at the hearing of any application for granting or setting aside an order granting interim relief, the Court shall determine that question first. F S.K. WANKHEDE Nagpur, dated the 6th December 1969 Minister for Law. S.H. BELAVADI Nagpur dated the 15th December 1969 Secretary G Maharashtra Legislative Assembly.” The reason for the introduction of the provisions of Section 9A in Maharashtra was that the suits used to be filed without notice under Section 80 of CPC. It related to bar on the institution of the suit without notice. After expiry of the period of notice, the plaintiff used to be allowed to withdraw the suit with liberty to file fresh one in the

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intervening period. The Court used to grant ad interim injunction and continue the same. The practice of granting an injunction without going into the question of jurisdiction has led to grave abuse of the provisions of law. Thus, it was proposed that in case question of jurisdiction is raised at the hearing of any applications for granting or setting aside an order granting interim relief, the Court shall determine that question first. The provisions of Section 9A, as initially introduced in 1970, are extracted hereunder: “9A.(1) If, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not, in any case, be adjourned to the hearing of the suit. (2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary pending determination by it of the preliminary issue as to the jurisdiction.”

5Copy pinpoint5. The Statement of Objects and Reasons for re-introduction of Section 9A in the year 1977 is the same. It has been re-enacted in a slightly revised form. The Statement of Objects and Reasons of the re-enacted provisions in the year 1977 is extracted hereunder: F “STATEMENT OF OBJECTS AND REASONS The Code of Civil Procedure, 1908 (V of 1908) has been amended, in its application to the State of Maharashtra, by the Code of Civil Procedure (Hyderabad Amendment) Act, 1953 (Hyd. XI of 1953), read with the Code of Civil Procedure G (Extension of Hyderabad Amendment) Act, 1964 (Mah. VI of 1965) and by the Code of Civil Procedure (Maharashtra Amendment) Act, 1970 (Mah. XXV of 1970). By the first State Act of 1953, the proviso to section 60(1) is amended to exempt the amounts payable under the policies issued in pursuance of H

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A the Rules for the Hyderabad State Life Insurance and Provident Fund from attachment in execution of a decree. By the second State Act of 1970, a new section 9-A has been inserted for providing that whereby an application, in which interim relief is sought or is sought to be set aside in any suit and objection to jurisdiction is taken, such issue should be decided by the Court B as a preliminary issue at the hearing of the application. The Code also stands amended in its application to the Bombay area of this State by the Code of Civil Procedure (Bombay Amendment) Act, 1948 (Bom. LX of 1948) and in its application to the Hyderabad area of this State by the Code of Civil C Procedure (Hyderabad Second Amendment) Act, 1953 (Hyd. XVIII of 1953). The first State Act of 1948 amends the proviso to section 60(1) to exempt from attachment, stipends, and gratuities allowed to pensioners of a local authority. The second State Act of 1953 also amends the proviso to section 60(1) to exempt from attachment, the pension granted or continued by D the Central Government, the Government of the former State of Hyderabad or any other State Government on account of past services or present infirmities or as a compassionate allowance.

2. The Code has been extensively amended by the Code of Civil Procedure (Amendment) Act, 1976 (CIV of 1976) enacted by E Parliament. Section 97 of this Amendment Act provides interalia that any amendments made in the Code by a State Legislature before the commencement of that Act shall except in so far as they are consistent with the Code as amended by the Amendment Act, stand repealed. Unless there is an authoritative judicial pronouncement, it is difficult to say which of the State Amendments are inconsistent with the Code as amended by the Central Amendment Act of 1976 and which consequently stand repealed. All the amendments made in the Code by the State Acts, except the amendment made in the proviso to section 60(1) by the State Act of 1948, are useful and are required to be continued. The amendment made by the State Act of 1948 is no more required because it is now covered by the amendment made in clause (g) of the said proviso by the Central Amendment Act of 1976. But to leave no room for any doubt whether the remaining State amendments continue to be in force or stand repealed, it is proposed that the old amendments should be

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repealed formally and in their places similar amendments may be re-enacted, with the assent of the President under article 254(2) of the Constitution, so that they may continue to prevail and be available in this State as before. The Bill is intended to achieve these objects.

3. The following notes on clauses explain the purposes of these clauses:- Preamble.- It gives the background and main reasons for the proposed legislation. Clauses 2 and 3.- Clause 2 formally repeals the State Act of C 1970 and the new section 9A inserted by it, to make way for re- enacting by clause 3 the same section in a slightly revised form. Clause 4.- As the amendment made by the State Act of 1948 is included in the proviso to section 60(1) by the Central Amendment Act of 1976, it is proposed to repeal this Act and the amendment made by it. Clauses 5 and 6.- Clause 5 formally repeals the two-State Acts of 1953 by which the proviso to section 60(1) was amended to give some additional exemptions from attachment. Clause 6 brings back these amendments with the necessary drafting changes. HUSSAIN M. DALWAI, Dated the 5th of Minister for Law and Judiciary.” October 1977. F The provisions of Section 9A as re-enacted in the year 1977 contained a non-obstante clause concerning provisions of CPC or any other law for the time being in force. Section 9A as re-introduced in the year 1977 is extracted hereunder: “9A. Whereof the hearing of application relating to interim G relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue.-(1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or H

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A otherwise, made in any suit, an objection to the Jurisdiction of the Court to entertain such a suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit. (2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction.” The provisions of Section 9A enable Court, dealing with the applications for granting or setting aside interim injunction or for appointment of a receiver or otherwise, to deal with the objection as to “jurisdiction of the Court to entertain such suit”, as preliminary issue and it shall not adjourn the matter to the hearing of the suit. Pending determination of the preliminary issue as to jurisdiction, the Court is competent as per section 9A(2) to grant interim relief as it may consider necessary.

6Copy pinpoint6. The State of Maharashtra on 27.06.2018 by the promulgation of “Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018” has deleted Section 9-A of the Code (in its application to the State of Maharashtra). Section 3 of the Ordinance provided as under: “3. Notwithstanding the deletion of section 9A of the principal Act, - F “(1) Where consideration of a preliminary issue framed under section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018 (hereinafter, in this section, referred to as “the Amendment Ordinance”), the said issue shall be deemed to be an issue framed under Order XIV of the principal Act and shall be decided by the Court, as it deems fit, along with all other issues, at the time of final disposal of the suit itself…” It was provided that preliminary issue framed under section 9A shall be treated as an issue under Order XIV of CPC and be decided by the Court with other issues as it may deem fit. The above Ordinance

NUSLI NEVILLE WADIA v. IVORY PROPERTIES & ORS. 817 [ARUN MISHRA, J.]

was replaced by the Code of Civil Procedure (Maharashtra A Amendment) Act, 2018 (Maharashtra Act No.LXI of 2018) (the 1 st Amendment Act) on 29.10.2018.

7Copy pinpoint7. On 15.12.2018, the State of Maharashtra enacted the “Code of Civil Procedure (Maharashtra Amendment) (Amendment) Act, 2018” (the 2nd Amendment Act). Section 2 of Act reads as follows: B “2. In section 3 of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018, for clause (1), the following clause shall be substituted and shall be deemed to have been substituted with effect from the 27th June, 2018, being the date of commencement of the said Act, namely :- C “(1) where consideration of a preliminary issue framed under section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018 (hereinafter, in this section, referred to as “the Amendment Act”), the said issue shall be decided and disposed of by the Court under D Section 9A, as if the said section 9A has not been deleted.” It is 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. Thus, it has become necessary to decide the issue. E

8Copy pinpoint8. The provisions contained in Order XIV Rule 2 of CPC also deals with the framing of issues and the questions which can be tried as a preliminary issue before the amendment made in the year 1977 in CPC provisions. Rule 2 of Order XIV reads thus: “2. Where issues both of law and of fact arise in the same suit, F and the Court is of 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.” (emphasis supplied) G It is apparent from the pre-amended provisions of Order XIV Rule 2 that only a question of law could have been tried as a preliminary issue, not the question of facts or a mixed question of law and facts, that too, when the case or part may be disposed of by a decision on the issue of law. H

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9Copy pinpoint9. The amendment in 1976 in CPC came into force on 1.2.1977. The amended Rule 2 of Order XIV is extracted hereunder: “2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), B pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of 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- C (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” A significant departure has been made in the amended provisions contained in Order XIV Rule 2. Now it mandates the Court to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue. The intendment is to avoid remand in the appealable case for deciding the other issues. In case the necessity arises, Order XIV Rule 2(2) enables the Court to decide the issue of law as a preliminary issue in case the same relates to (1) the jurisdiction of the Court or (2) a bar to the suit created by any law for the time being in force. After the amendment made in CPC in the year 1977, it contains two-fold provision, the question of jurisdiction to entertain the suit has been separated under Rule 2(2)(a) from the expression in Rule 2(2)(b) “a bar to the suit created by any law for the time being in force.”

10Copy pinpoint10. In Kamalakar Eknath Salunkhe (supra), as to the interpretation of Section 9A, it has been opined that 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. The Court has observed: “16. The expression “jurisdiction” in Section 9-A is used in a H narrow sense, that is, the court’s authority to entertain the suit

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at the threshold. The limits of this authority are imposed by a A statute, charter, or commission. If no restriction is imposed, the jurisdiction is said to be unlimited. The question of jurisdiction, sensu stricto, has to be considered regarding the value, place, and nature of the subject matter. The classification into territorial jurisdiction, pecuniary jurisdiction, and jurisdiction over the subject- B matter is fundamental. Undoubtedly, the jurisdiction of a court may get restricted by a variety of circumstances expressly mentioned in a statute, charter, or commission. The inherent jurisdiction of a court depends upon the pecuniary and territorial limits laid down by law and subject-matter of the suit. While the suit might be barred due to non-compliance with specific provisions of law, it does not follow that the non-compliance with the said provisions is a defect which takes away the inherent jurisdiction of the court to try a suit or pass a decree. The law of limitation operates on the bar on a party to agitate a case before a court in a suit, or other proceedings in which the court has inherent jurisdiction to entertain but by operation of the law of limitation, it would not warrant adjudication.

20. A perusal of the Statement of Objects and Reasons of the Amendment Act would clarify that Section 9-A talks of maintainability only on the question of inherent jurisdiction and does not contemplate issues of limitation. Section 9-A has been inserted in the Code to prevent the abuse of court process where a plaintiff drags a defendant to the trial of the suit on merits when the jurisdiction of the court itself is doubtful.

21. In the instant case, the preliminary issue framed by the trial court is about 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 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.”

11Copy pinpoint11. Where in the recent decision of Foreshore Cooperative Housing Society Limited (supra), it has been held that decision in Kamalakar Eknath Salunkhe (supra) is contrary to the law. The H

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A word jurisdiction in Section 9A is used in a broader sense. It has also been held that Section 9A is mandatory and a complete departure from the provisions of Order XIV Rule 2. The question of limitation is synonym with jurisdiction, and if raised, the Court has to try it as a preliminary issue under Section 9A as applicable to the State of Maharashtra. This Court in Foreshore Cooperative Housing Society B Limited (supra) has observed: “56. With great respect, we are of the view that the decision rendered by the Division Bench in Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar, (2015) 7 SCC 321 is contrary to C the law settled by the Constitution Bench and three-Judge Benches of this Court, in Pandurang Dhondi Chougule v. Maruti Hari Jadhav (five-judge Bench), AIR 1966 SC 153 followed by other Division Benches in Manick Chandra Nandy v. Debdas Nandy, (1986) 1 SCC 512, NTPC Ltd. v. Siemens Aktiengesellschaft, (2007) 4 SCC 451, Official Trustee v. D Sachindra Nath Chatterjee, AIR 1969 SC 823, ITW Signode India Ltd. v. CCE, (2004) 3 SCC 48 and Kamlesh Babu v. Lajpat Rai Sharma, (2008) 12 SCC 577. The Constitution Bench decision and other decisions given by the larger Bench are binding on us. It appears that those decisions have not been brought to the notice of the Division Bench taking a contrary view.

61. Mr Nariman, learned Senior Counsel appearing for the appellant put heavy reliance on the decision in Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638, for the proposition that a plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. In our considered opinion, in the decision as mentioned earlier, this Court was considering the provision of Order 14 Rule 2 CPC. While interpreting the provision of Order 14 Rule 2 this Court G was of the view that the issue on limitation, being a mixed question of law and fact is to be decided along with other issues as contemplated under Order 14 Rule 2 CPC. As discussed above, Section 9-A of the Maharashtra Amendment Act makes a complete departure from the procedure provided under Order 14 H Rule 2 CPC. Section 9-A mandates the court to decide the

NUSLI NEVILLE WADIA v. IVORY PROPERTIES & ORS. 821 [ARUN MISHRA, J.]

jurisdiction of the court before proceeding with the suit and A granting interim relief by way of injunction.

62. At the cost of repetition, we observe that Section 9-A provides a self-contained scheme with a nonobstante clause which mandates the court to follow the provision. It is a complete departure from the provisions contained in Order 14 Rule 2 CPC. B In other words, the nonobstante clause inserted by the Maharashtra Amendment Act of 1977 in Section 9-A and the express mandate of the section, the law intends to decide the issue relating to the jurisdiction of the court as a preliminary issue notwithstanding the provision contained in Order 14 Rule 2 CPC. However, it is made clear that in other cases where the suits are governed by the provisions of Order 14 Rule 2 CPC, it is the discretion of the court to decide the issue based on the law as a preliminary issue.” It has also been observed that where the suits are governed by the provisions of Order XIV Rule 2, it is the discretion of the Court to decide the issue based on the law as a preliminary issue. SUBMISSIONS

12Copy pinpoint12. It has been submitted by Shri F.S. Nariman, learned senior counsel appearing on behalf of the petitioner that decision in Foreshore E Cooperative Housing Society Limited (supra) cannot be said to be laying down the law correctly. The CPC confers no jurisdiction upon the Court to try a suit on a mixed question of law and facts as a preliminary issue. It is further submitted that the word jurisdiction has been used in a narrow sense and Section 9-A does not cover the question of a suit being barred by any other provision of law. The F decision in Meher Singh v. Deepak Sawhney, 1998 (3) MLJ 940 and Smithkline Beecham Consumer Consumer Healthcare v. Hindustan Liver Limited, 2002 SCC OnLine Bom 1337 of the Bombay High Court are directly in contravention to the law settled by this Court. The plea of limitation is a mixed question of law and facts and cannot be decided G as an abstract principle divorced from the facts. The starting point of limitation has to be ascertained, which is entirely a question of facts in each case. In Pandurang Dhondi Chougule (supra), this Court was concerned with the interpretation of the scope of Section 115 of the Code. Because of the provisions of Section 115 when interference can be made in a revision, it has been observed that limitation concerns H

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A jurisdiction. The decision in Kamalakar Eknath Salunkhe (supra) cannot be said to be per incuriam, thus, it was not open to the Division Bench to take a different view in the Foreshore Cooperative Housing Society Limited (supra) when the Maharashtra legislature consciously chose to re-enact Section 9A, it has used the expression jurisdiction and provision as to the suit was barred by any other law for the time being in force has not been added which included the law of limitation also. Given the amended Order XIV Rule 2, the preliminary issue can only be a pure question of law.

13Copy pinpoint13. Shri Rakesh Dwivedi, Shri Mukul Rohatgi, Dr. Abhishek Manu Singhvi, and Shri Gopal Jain, learned senior counsel appearing on behalf of respondents submitted that Order XIV Rule 2, CPC has no relevance for construing the expression an objection to the jurisdiction of the Court to entertain such suit. The provision enacted in 1970 and re-enacted in the year 1977 is the same. The object of the re-introduction was to maintain and continue what was enacted before the CPC Amendment Act of 1976. The question of limitation and res judicata is the one which can be decided as a preliminary issue under Section 9A of CPC. It is submitted that under Order XIII Rule 1, parties are required to produce the documents in original on or before the settlement of the issues. Under Order XII, parties can give notice for admitting the documents. Under Order XII Rule 6, even a judgment can be given on admitted facts. These are the stages before framing the issue under Order XIV.

14Copy pinpoint14. Consequently, under Order XIV Rule 2(2), the Court while trying issues would be entitled to look into the admitted facts in any case. Under Order XIV Rule 4, the Court can examine a witness and documents before framing issues. Therefore, there is no good reason to prevent the Court from deciding issues of limitation based on documents produced, especially if they are admitted documents.

15Copy pinpoint15. It is further submitted on behalf of respondents that the expression jurisdiction used in Section 9A need not be qualified by the word inherent, that would amount to re-writing the Statute and would be against the contextual meaning to be given to Section 9A. The object for introducing the provision was not limited to objections about inherent jurisdiction, but to cover bar created by the statute and Section 80 is an illustration. Thus, the expression ‘barred under any law for the time being in force’ used in Order XIV Rule 2(2)(b) is covered by Section

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9A. Concerning expression used in Order XIV Rule 2(2), the Court A may decide the issue of law as a preliminary issue that has not been used in Section 9A. Thus, the provision deploys a broader spectrum. It is further submitted that the speedy conclusion of the trial is vital if a case can be decided on the point of jurisdiction as also of limitation, then there is no rationale for keeping the case pending. Thus, Section B 9A buttress the idea of speedy justice. As President assent has been received for the introduction of Section 9A, the same will have an overriding effect on Order XIV Rule 2. The provision cannot be said to be irrational or unreasonable in any manner. In case plaint indicates that it is barred by limitation, whether the fact can be seen and what can be tried as a preliminary issue would depend on the nature of the provision of the statute and the public policy behind it. Judgment in Foreshore Cooperative Housing Society Limited (supra) has laid down the law correctly. IN RE: MEANING OF WORD JURISDICTION

16Copy pinpoint16. Jurisdiction is the power to decide and not merely the power to decide correctly. Jurisdiction is the authority of law to act officially. It is an authority of law to act officially in a particular matter in hand. It is the power to take cognizance and decide the cases. It is the power to decide rightly or wrongly. It is the power to hear and determine. Same is the foundation of judicial proceedings. It does not depend upon the correctness of the decision made. It is the power to decide justiciable controversy and includes questions of law as well as facts on merits. Jurisdiction is the right to hear and determine. It does not depend upon whether a decision is right or wrong. Jurisdiction means power to entertain a suit, consider merits, and render binding decisions, and “merits” means the various elements which enter into or qualify plaintiff’s right to the relief sought. If the law confers a power to render a judgment or decree, then the court has jurisdiction. The court must have control over the subject matter, which comes within classification limits of law under which Court is established and functions.

17Copy pinpoint17. The word jurisdiction is derived from Latin words “Juris” and G “dico,” meaning “I speak by the law” and does not relate to rights of parties as between each other but to the power of the court. Jurisdiction relates to a class of cases to which a particular case belongs. Jurisdiction is the authority by which a judicial officer takes cognizance and decides the cases. It only presupposes the existence of a duly constituted court H

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A having control over subject-matter which comes within classification limits of the law under which court has been established. It should have control over the parties litigant, control over the parties’ territory, it may also relate to pecuniary as well as the nature of the class of cases. Jurisdiction is generally understood as the authority to decide, render a judgment, inquire into the facts, to apply the law, and to pronounce a B judgment. When there is the want of general power to act, the court has no jurisdiction. When the court has the power to inquire into the facts, apply the law, render binding judgment, and enforce it, the court has jurisdiction. Judgment within a jurisdiction has to be immune from collateral attack on the ground of nullity. It has co-relation with the C constitutional and statutory power of tribunal or court to hear and determine. It means the power or capacity fundamentally to entertain, hear, and determine.

18Copy pinpoint18. Jurisdiction to entertain is distinguished from merits, error in the exercise of jurisdiction or excess of jurisdiction.

19Copy pinpoint19. Section 9 of the Code of Civil Procedure deals with jurisdiction and empowers the courts to try all civil suits unless barred. Section 9 is extracted hereunder: “9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I.- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II.- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.” G

20Copy pinpoint20. The words used in section 9 of the Code of Civil Procedure of 1882 “barred by any enactment for the time being in force” are substituted in the Code of Civil Procedure of 1908 by “either expressly or impliedly barred.” Thus, the word “jurisdiction” under section 9 correlates with the cognisance, i.e., is not barred either expressly or H impliedly.

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21Copy pinpoint21. In Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC A 1449 at 1450, it is observed that the jurisdiction of a court means the extent of the authority of a court to administer justice prescribed concerning the subject-matter, pecuniary value, and local limits.

22Copy pinpoint22. In A.R. Antulay v. R.S. Nayak and Anr., (1988) 2 SCC 602, it has been observed that expression jurisdiction or the bar to determine is verbal cast of many colours. Jurisdiction is a legal shelter – a power to bind despite a possible error in the decision. The Court observed: “142. The expression “jurisdiction” or the power to determine is, it is said, a verbal cast of many colours. In the case of Tribunal, the error of law might become not merely an error in the jurisdiction but might partake character in error of jurisdiction. However, otherwise, jurisdiction is a ‘legal shelter’ — a power to bind despite a possible error in the decision. The existence of jurisdiction does not depend on the correctness of its exercise. The authority to decide embodies a privilege to bind despite the error, a privilege which is inherent in and indispensable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it is wrong. In Malkarjun Bin Shidramappa v. Narahari Bin Shivappa, (1900) 27 IA 216 the executing court had, quite wrongly, held that a particular person represented the estate of the deceased judgment-debtor and put the property for sale in execution. The Judicial Committee said: In so doing the court was exercising its jurisdiction. It made a sad mistake, it is true, but a court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed.”

23Copy pinpoint23. In Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K Loraiya, (1972) 2 SCC 692, the word jurisdiction has been interpreted in the context of Section 125 of the Army Act to signify the original jurisdiction to take cognizance of a case. Following is the observation: “11. Section 125 of the Army Act provides that when a criminal court and a Court-Martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding H

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A the army, any corps, division or independent brigade in which the accused person is serving to decide before which court the proceedings shall be instituted, and if that officer decides that they should be instituted before a Court-Martial, he will direct that the accused person shall be detained in military custody. Section 122(1) and 125 both find place in Chapter X of the Army B Act. Section 125 supports our view that the Court-Martial alone has jurisdiction to decide the issue of limitation under Section 122(1). The word “jurisdiction” in Section 125 really signifies the initial jurisdiction to take cognizance of a case. To put it in other words, it refers to the stage at which proceedings are instituted C in a court and not to the jurisdiction of the ordinary criminal court and the Court-Martial to decide the case on merits. It appears to us that Section 549(1) should be construed in the light of Section 125 of the Army Act. Both the provisions have in mind the object of avoiding a collision between the ordinary criminal court and the Court-Martial. So both of them should receive a D similar construction.”

24Copy pinpoint24. In Smt. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621, the word jurisdiction employed in Section 9, CPC came up for consideration. The Court held that jurisdiction means the authority to decide and observed: “(15) Now, I come to a controversial area. What is the position with regard to an order made by a quasi-judicial authority in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is admittedly intra vires? It is necessary first to clarify the concept of jurisdiction. Jurisdiction means authority to decide. Whenever a judicial or quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion whether it is wrong in law or in fact. The question, whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable “at the

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commencement, not at the conclusion, of the inquiry’. (Rex v. A Bolten [1841] I Q.B. 66. Thus, a tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by determining any of those B questions incorrectly, but it has no jurisdiction to entertain a claim for reinstatement or damages for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters…… C (Halsbury’s Laws of England, 3rd Edn. Vol. 11 page 59). The characteristic attribute of judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts stricto sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal. Even the doctrine of res judicata has been applied to such decisions. (See Livingstone v. Westminister Corporation [1904] 2 K.B. 109; Re Birkenhead Corporation (1952) Ch. 359 Re 56 Denton Road Twickenham [1953] Ch. 51 Society of Medical Officers of Health v. Hope [1959] 2 W.L.R. F

377. ….” (emphasis supplied)

25Copy pinpoint25. In Anowar Hussain v. Ajay Kumar Mukherjee, AIR 1965 SC 1651, it was held that expression jurisdiction does not mean the G power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter.

26Copy pinpoint26. In M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427, the Court recognized that the word jurisdiction is a verbal coat of many colours. In Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors., (1974) H

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A 3 SCC 415, it was observed that expanse of jurisdiction would take colour from its context.

27Copy pinpoint27. The jurisdiction in Section 9A must be considered in the context it has been used. The word jurisdiction has to be interpreted in the context which has been used in the various provisions. The word B “jurisdiction” has been used in CPC in several provisions. Section 9 deals with the jurisdiction to try all suits by a civil court except those which are barred. Section 10 prohibits a Court from proceeding with the trial. Section 11 and Explanation VIII are based upon the principle of res judicata. Section 21 defines objections to a jurisdiction such as the place of suing and competence of Court regarding the pecuniary limits of its jurisdiction. Section 86 prohibits a suit against a foreign State in any Court otherwise competent to try the suit except with the consent of Central Government. Section 135 refers to the matter pending for determination having jurisdiction therein. Order II Rule 3(2) contains a provision concerning the jurisdiction of the Court as regards the suit. Order VII Rule 11(d) deals with the rejection of the plaint on the ground being barred by law. Order VIII Rule 3-A(4) provides a defendant to put forth the objection as to the jurisdiction. Order XIV Rule 2 distinguishes between preliminary issues relating to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Order XXIII Rule 3-A provides that no suit shall lie to set aside a compromise decree. There are various other provisions in which the expression has been used. IN RE: “ENTERTAIN THE SUIT”

28Copy pinpoint28. When we consider provisions in Section 9A, the word jurisdiction is qualified with “to entertain the suit,” the expression used is ‘jurisdiction to entertain the suit.’ The Court has jurisdiction to entertain a suit when it has jurisdiction to receive it for consideration. If at the threshold, the Court cannot consider it, it can be said that the Court has no jurisdiction to entertain the case. It is like a suit is cognizable by Revenue Court, but it is filed in Civil Court, the Court G cannot consider it nor can receive it for trial. It is like the jurisdiction to entertain the criminal appeal when the Court is not having inherent jurisdiction to consider the case; it can be said that the Court has no jurisdiction to entertain. When the separate statutory mechanism is provided for the consideration of a particular dispute and jurisdiction of H Civil Court is barred, and if it is brought before the Civil Court whose

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jurisdiction is barred, it cannot entertain such a suit and receive it for A consideration. It can be said that the Court has no jurisdiction to entertain such a suit. When the Court cannot think over to allow itself to consider, it can be said that it has no jurisdiction to entertain. It is like a case is cognizable in a consumer forum; a Civil Court cannot entertain it.

29Copy pinpoint29. The expression “jurisdiction to entertain” is also used in B Section 14 of the Limitation Act. The provisions of Section 14 provide that in case a suit is filed in the wrong court and the Court from the defects of jurisdiction is unable to entertain it, the period to institute a suit can be extended.

30Copy pinpoint30. The meaning of the word ‘entertain’ came up for consideration C in Kashiram v. Santokhbai, AIR 1958 MP 91. The word ‘entertain’ means to admit for consideration. It does not mean giving relief. When the court receives it for consideration and disposal, according to law, it must be regarded as entertaining the suit or proceedings. The High Court of Madhya Pradesh has observed as under: D “5. In our opinion, the contention advanced on behalf of the appellant must be given effect to. We have no doubt that S.14 of the Limitation Act has no application to the facts of this case, and the plaintiff is not entitled to the benefit of that section. Before that section can apply, the prior proceeding must have been founded upon the same cause of action as that on which the later suit is founded and the Court in which the prior proceeding was prosecuted must have been unable to entertain it for the reasons specified, namely, defect of jurisdiction or other cause of a like nature. Now the words ‘which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it’ which occur in S.14(1) of the Limitation Act are very significant. As pointed out by Mukherjee, J. (as he then was), in AIR 1945 Cal 381 (B), the word ‘entertain’ means to admit for consideration. It does not mean giving relief, and that when a suit or proceeding is not thrown out in limine but the Court G receives it for consideration and disposal according to law, it must be regarded as entertaining the suit or proceeding, no matter whatever the ultimate decision may be; and that a suit is to be regarded as not entertained by the Court only if it is thrown out at its inception and the Court does not decide it on its merits.” H

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A The learned Judge further observed that S.14 of the Limitation Act speaks of the inability of the Court to entertain a suit or proceeding on certain specific grounds, which are of a formal nature and that inability to entertain a suit means not inability to grant relief to the plaintiff but inability to give him a trial at all. In our opinion when a suit is dismissed not because the Court had no jurisdiction to entertain it, or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not one recognised by law as legal in its initiation, then clearly S.14 of the Act is not attracted to such a suit. This view is amply supported by the cases cited by the learned counsel for the appellant and numerous other cases. Now, here, the plaintiff’s prior suit was dismissed not because of any defect of jurisdiction or any other ground similar to it, but it was entertained and dismissed because it was wholly misconceived and the relief of rendition of accounts could not be granted against the son of a deceased agent. D The suit was dismissed because the proceedings according to the trial Court were not recognised by law as legal in their initiation. If then, S.14 of the Limitation Act has no applicability to this case, and the plaintiff’s suit is governed by Art.89, then it is clearly barred by time and must be dismissed.” E The High Court of M.P. has relied upon the decision in Nakul Chandra Ghose v. Shyamapada Ghose, AIR 1945 Cal 381.

31Copy pinpoint31. The expression ‘entertain’ means to admit a thing for consideration. When a suit or proceeding is not thrown out in limine, but the court receives it for consideration for disposal under the law, it must be regarded as entertaining the suit or proceeding. It is inconsequential what is the final decision. The word ‘entertain’ has been held to mean to admit for consideration, as observed by this Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner, Sales Tax, Kanpur, AIR 1968 SC 488. The expression ‘entertain’ means to adjudicate upon or to proceed to consider on merits as observed in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead) through Legal Representatives, 1971 (3) SCC 124.

32Copy pinpoint32. The meaning of the word ‘entertain’ has been considered to mean ‘adjudicate upon’ or ‘proceed to consider on merits.’ It has been observed in Hindusthan Commercial Bank Ltd. v. Punnu Sahu H (Dead) through Legal Representatives, 1971 (3) SCC 124 as under:

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“4. Before the High Court it was contended on behalf of the appellant, and that contention was repeated in this Court, that Clause (b) of the proviso did not govern the present proceedings as the application in question had been filed several months before that clause was added to the proviso. It is the contention of the appellant that the expression “entertain” found in the proviso refers to the initiation of the proceedings and not to the stage when the Court takes up the application for consideration. This; contention was rejected by the High Court relying on the decision of that court in Kundan Lal v. Jagan Nath Sharma, AIR 1982 All 547. The same view had been taken by the said High Court in Dhoom Chand Jain v. Chamanlal Gupta, AIR 1962 All 543 C and Haji Rahim Bux and Sons v. Firm Samiullah and Sons, AIR 1963 All 320 and again in Mahavir Singh v. Gauri Shankar, AIR 1964 All 289. These decisions have interpreted the expression “entertain” as meaning ‘adjudicate upon’ or ‘proceed to consider on merits.’ This view of the High Court has D been accepted as correct by this Court in Lakshmiratan Engineering Works Ltd. v. Asst. Comm., Sales Tax, Kanpur, AIR 1968 SC 488. We are bound by that decision, and as such, we are unable to accept the contention of the appellant that Clause (b) of the proviso did not apply to the present proceedings.” E The word ‘entertain’ came up for consideration in Hindusthan Commercial Bank Ltd. (supra) in the context of Order XXI Rule 90 as amended by the Allahabad High Court. The expression entertain has been held to mean to adjudicate upon or proceed to consider on merits. IN RE: DIFFERENCE BETWEEN EXISTENCE AND F EXERCISE OF JURISDICTION

33Copy pinpoint33. There is a difference between the existence of jurisdiction and the exercise of jurisdiction. In case jurisdiction is exercised with material irregularity or with illegality, it would also constitute jurisdictional error. However, if a court has jurisdiction to entertain a suit but in G exercise of jurisdiction, a mistake has been committed, though it would be a jurisdictional error but not lack of it. It may be a jurisdictional error open for interference in appellate or revisional jurisdiction.

34Copy pinpoint34. In Dabur India Limited v. K. R. Industries, 2008 10 SCC 595, it has been observed that the jurisdiction under Order II Rules 2 H

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A and 3 of the Code of Civil Procedure can be exercised only when the court has otherwise jurisdiction in respect of the cause of action wherefor the action has been brought. The Court has observed: “19. The question which was posed by the learned Single Judge is as under: B “The next question, however, which is more important is whether the plaintiff can combine the two causes of action, one under the Copyright Act and the second under the Act of 1958 in a situation where this Court has the jurisdiction insofar as cause of action under the Copyright Act is concerned but has no territorial jurisdiction to entertain the cause of action relating to Act of 1958.” Noticing the provisions of Order 2 Rules 2 and 3 of the Code of Civil Procedure enabling the plaintiff to combine more than one causes of action, it was opined that the said provisions relate to pecuniary jurisdiction. The said jurisdiction, however, can be exercised only in the event the court has otherwise jurisdiction in respect of the cause of action wherefor the action has been brought.”

35Copy pinpoint35. The question of maintainability was also examined with reference to jurisdiction in The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke & Ors., AIR 1975 SC 2238, it has been held that in a Civil Court, suit was not maintainable for a decree for permanent injunction as it had no jurisdiction to grant the relief or even a temporary relief. The Court held: F “27.…… The better and more reasonable view, therefore, to take is that all workmen represented by the two plaintiffs sought an order of injunction in the civil court to prevent an injury which was proposed to be caused to them in relation to their right under the Act. Hence a suit for a decree for permanent injunction was not maintainable in the civil court as it had no jurisdiction to grant G the relief or even a temporary relief.” (emphasis supplied)

36Copy pinpoint36. In a case, jurisdictional facts, as well as adjudicatory facts, may arise. When jurisdictional facts to entertain are missing, the court/ H tribunal cannot act at all. In the case of adjudicatory facts, the court

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can proceed with the trial of the case exercising jurisdiction, and the A same implies that the court has the jurisdiction to deal with the matter, that is called the power to examine on merits. Adjudication is the power to proceed to consider on merits.

37Copy pinpoint37. In Bhai Jai Kishen Singh v. Peoples Bank of Northern India (in liquidation) through Bhagwati Shankar, Official B Liquidator, AIR 1944 Lah 136, it has been observed that jurisdiction issue is one like preliminary issue not where the proceedings were dismissed on merits. In Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors., (1974) 3 SCC 415 in the context of word jurisdiction, this Court observed thus: C “28. We think that neither the decision of this Court in Baidyanath Panjiar v. Sita Ram Mahto, (1969) 2 SCC 447 which took the view that violation of Section 23(3) of the 1950 Act in entering or deleting the names of persons in the electoral rolls after the last date for making nomination relates to lack of power, nor the decision in Wopanso v. N.L. Oduya, (1971) 2 SCC 550 and others which also suggests that where there was lack of power, the question can be gone into by the Court trying an election petition, can, by analogy, be extended to an entry in the electoral roll on the basis of a wrong adjudication of the question of ordinary residence. Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in The Anisminic case, (1967) 3 WLR 382 we do not think that the distinction between the two has been completely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it. The difficulty has arisen because the word “jurisdiction” is an expression which is used in a variety of senses and takes its colour from its context, (see per Diplock, J., at p. 394 in the Anisminic case). Whereas the “pure” theory of jurisdiction would reduce jurisdictional control to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry. “At bottom, the problem of defining the concept of jurisdiction for purpose of judicial review has been one of public policy rather than one of logic.” And viewed from H

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A the aspect of public policy as reflected in the provisions of the 1950 and 1951 Acts, we do not think that a wrong decision on a question of ordinary residence for the purpose of entering a person’s name in the electoral roll should be treated as a jurisdictional error which can be judicially reviewed either in a B civil court or before an election tribunal.” (emphasis supplied) It is observed that expression “jurisdiction” is used in a variety of senses and takes its colour from its context, in which it is used as observed in Anisminic Ltd. v. Foreign Compensation Commission, C [1968] 2 Q.B. 862.

38Copy pinpoint38. In Union of India v. Tarachand Gupta and Bros., 1971 (1) SCC 486, in the context of jurisdiction of Civil Court, it has been observed that it has both a narrow and broader meaning. In the sense of former, it means the authority to embark upon an enquiry, and latter, the decision is in non-compliance with provisions of Act. It is observed: “22. The principle thus is that exclusion of the jurisdiction of the civil courts is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with, or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word “jurisdiction” has both a narrow and F a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter, it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a G question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.” (emphasis supplied)

39Copy pinpoint39. Again, in Official Trustee, West Bengal v. Sachindra Nath H Chatterjee, AIR 1969 SC 823, it has been observed that before a court

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can be held to have the jurisdiction to decide a particular matter, it must not only have the jurisdiction to try the suit brought but must also have the authority to pass the order sought from it. It should have the power to hear and decide the issue. The Court observed: “12. It is plain that if the learned judge had no jurisdiction to pass the order in question then the order is null and void. It is equally plain that if he had jurisdiction to pronounce on the plea put forward before him the fact that he made an incorrect order or even an illegal order cannot affect its validity. Therefore all that we have to see is whether Ramfry, J. had jurisdiction to entertain the application made by the settlor. C

13. What is meant by jurisdiction? This question is answered by Mukherjee, Acting C.J., speaking for the full bench of the Calcutta High Court in Hirday Nath Roy v. Ramachandra Barna Sarma. ILR 48 Cal 138 = AIR 1921 Cal 84 (FB). At page 146 of the report ILR (Cal) = (at p.36 of AIR) the learned judge explained what exactly is meant by jurisdiction. We can do no better than to quote his words: “In the order of Reference to a Full Bench in the case of Sukhlal v. Tara Chand, (1905) ILR 33 Cal 68 (FB), it was stated that jurisdiction may be defined to be the power of a Court to ‘hear and determine a cause, to adjudicate and exercise any judicial power in relation to it:’ in other words, by jurisdiction is meant ‘the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.’ An examination of the cases in the books discloses numerous attempts to define the term ‘jurisdiction’, which has been stated to be ‘the power to hear and determine issues of law and fact’, “the authority by which the judicial officers take cognizance of and ‘decide causes’;” ‘the authority to hear and decide a legal controversy’, “the power to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them”; “the power to hear, determine and pronounce judgment on the issues before the Court”; “the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments H

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A into effect”; “the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution”.” (emphasis supplied)

40Copy pinpoint40. In National Thermal Power Corpn. Ltd. v. Siemens Atkeingesellschaft, (2007) 4 SCC 451, the question came up for consideration before a Division Bench of the Court concerning what is a jurisdictional question and whether declining to go into the merits of the claim would amount to a refusal to exercise jurisdiction. The Court held that declining to go into the merits of a claim in a particular case may amount to a refusal to exercise jurisdiction. What is jurisdictional question and jurisdiction was also considered by this Court. The question of limitation involving the question of jurisdiction of the Court or Tribunal came up for consideration, as a preliminary objection was raised as to maintainability of the appeal. The relevant portion of discussion is extracted hereunder: D “17. In the larger sense, any refusal to go into the merits of a claim may be in the realm of jurisdiction. Even the dismissal of the claim as barred by limitation may, in a sense touch on the jurisdiction of the court or tribunal. When a claim is dismissed on the ground of it being barred by limitation, it will be, in a sense, E a case of the court or tribunal refusing to exercise jurisdiction to go into the merits of the claim. In Pandurang Dhoni Chougule v. Maruti Hari Jadhav AIR 1996 SC 153, this Court observed that: (AIR p. 155, para 10) “It is well settled that a plea of limitation or a plea of res F 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 Section 115 of the Code.” G In a particular sense, therefore, any declining to go into the merits of a claim could be said to be a case of refusal to exercise jurisdiction.

18. The expression “jurisdiction” is a word of many hues. Its H colour is to be discerned from the setting in which it is used. ….”

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It is apparent that when a claim is dismissed as barred by A limitation, no doubt the refusal is within the realm of exercise of jurisdiction by the Court or Tribunal. It cannot be said that the Court has refused to exercise the jurisdiction to go into the merits by a wrong decision dismissing the case on the ground of limitation. In that context, Pandurang Dhondi Chougule B (supra) has been relied upon which has dealt with the question of jurisdiction under Section 115 of CPC. This Court has also observed it in National Thermal Power Corpn. Ltd. (supra) that in the question of jurisdiction, the expression jurisdiction is a word of many hues and having a different meaning in which it is used. There is no dispute as to the abovementioned proposition laid down by this Court. The question in the aforesaid decision was not relating to jurisdiction to entertain the matter and to pass decree immune from collateral challenge. Thus, the decision lends no support to the cause of the respondents.

41Copy pinpoint41. In M.L. Sethi v. R.P. Kapur (supra), the Court observed as under: “12. …..The jurisdiction of the High Court under Section 115 of the CPC is a limited one. As long ago as 1884, in Rajah Amir Hassan Khan v. Sheo Baksh Singh, (1884) LR 11 IA 237, the Privy Council made the following observation on Section 622 of the former Code of Civil Procedure, which was replaced by Section 115 of the Code of 1908: “The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it. Whether they decided rightly or wrongly, they had jurisdiction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity.” G In Balakrishna Udayar v. Vasudeva Aiyar, (1917) LR 44 IA 261, 267 the Board observed: “It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against H

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A conclusions of law or fact in which the question of jurisdiction is not involved.” In N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, (1948-49) LR 76 IA 73, the Judicial Committee said that Section 115 empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied on those three matters, it has no power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law. …… The word “jurisdiction” is a verbal coat of many colours. D Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147, namely, the entitlement “to enter upon the enquiry in question.” If there was an entitlement to enter upon an enquiry, into the question, then any subsequent error E could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Darman in R v. Bolton, (1841) 1 Q.B. 66. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminic Ltd. case (supra) Lord Reid said: F “But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account

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something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.” In the same case, Lord Pearce said: “Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or, in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity.” The dicta of the majority of the House of Lords in the above case would show the extent to which ‘lack’ and ‘excess’ of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of E “jurisdiction.” The effect of the dicta, in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if F the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as “basing their decision on a matter with which they have no right to deal,” “imposing an unwarranted condition” or “addressing themselves to a wrong question.” The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether G there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the court is prepared to allow. In the end, it can only be a value judgment (see H.N.R. Wade, “Constitutional and H