Case Note & Summary
The Full Bench of the Bombay High Court was constituted to answer a reference on whether a trial court, under Section 9-A of the Code of Civil Procedure, 1908 (as applicable in Maharashtra), can frame a preliminary issue that disposes of the suit in part or the cause of action in part. The reference arose from a writ petition challenging an order framing a preliminary issue of limitation in a suit for declaration and injunction. The learned Single Judge disagreed with the Division Bench's view in Ferani Hotels Private Limited v. Nusli Nevile Wadia, which held that Section 9-A permits partial disposal. The Full Bench examined the language of Section 9-A, its object and reasons, and the saving clause in the repealing Act. It held that Section 9-A empowers the court to decide the issue of jurisdiction as a preliminary issue, and if the suit is barred by limitation, the court can dismiss that part of the suit while other reliefs survive. The court also rejected the argument that the reference had become academic due to the deletion of Section 9-A, as the saving clause preserves pending proceedings. The Full Bench answered the reference in the affirmative, holding that the trial court is competent to frame a preliminary issue under Section 9-A that disposes of the suit in part or cause of action in part.
Headnote
A) Civil Procedure - Preliminary Issue - Jurisdiction - Section 9-A Code of Civil Procedure, 1908 (Maharashtra Amendment) - The Full Bench considered whether a trial court can frame a preliminary issue under Section 9-A that disposes of the suit in part or cause of action in part. The court held that Section 9-A permits such partial disposal, as the provision allows the court to decide the issue of jurisdiction as a preliminary issue, and if the suit is barred by limitation, the court can dismiss that part of the suit while other reliefs may survive. The court relied on the Division Bench decision in Ferani Hotels Private Limited v. Nusli Nevile Wadia and the Supreme Court's clarification in Nusli Neville Wadia v. Ivory Properties. (Paras 1-13) B) Civil Procedure - Repeal of Section 9-A - Saving Clause - Section 3 of Code of Civil Procedure (Maharashtra Amendment) Act, 2018 - The court rejected the argument that the reference had become academic due to deletion of Section 9-A, noting that the saving clause in Section 3 of the repealing Act preserves pending proceedings under Section 9-A, and the Supreme Court in Nusli Neville Wadia v. Ivory Properties held that such pending issues can be decided only if they fall within the parameters of Section 9-A. (Paras 9-11)
Issue of Consideration
Whether in exercise of power under Section 9-A of the Code of Civil Procedure, 1908, the Trial Court is competent to frame an issue, disposing of the suit in part or the cause of action in part?
Final Decision
The Full Bench answered the reference in the affirmative, holding that the trial court is competent to frame a preliminary issue under Section 9-A of the CPC that disposes of the suit in part or the cause of action in part.
Law Points
- Section 9-A CPC (Maharashtra Amendment) permits framing of preliminary issue on jurisdiction
- which can dispose of suit in part or cause of action in part
- Deletion of Section 9-A does not render reference academic due to saving clause
- Interpretation of Section 9-A as per Nusli Neville Wadia v. Ivory Properties
