Case Note & Summary
The First Respondent (Mumbai International Airport) filed a suit against the Appellant (Mukund Ltd.), the Airports Authority of India, and the State of Maharashtra seeking a declaration that the Airports Authority is the owner of certain land leased to the First Respondent, and that an order dated 22 June 1973 and an agreement dated 22 January 1991 between the Appellant and the State are null and void. The First Respondent also sought an injunction restraining the Appellant from alienating the land. The Appellant and the State filed affidavits in reply to the interlocutory motion, raising the objection that the suit was barred by limitation. At the hearing of the motion, counsel for both the Appellant and the State stated that they were not pressing the limitation issue for the purpose of the motion. The Learned Single Judge considered whether a defendant can be permitted to give up its stand on jurisdiction at the hearing of a motion, or whether a preliminary issue must be framed under Section 9A of the Code of Civil Procedure, 1908 (as applicable to Maharashtra). The Single Judge held that once a party raises a point of jurisdiction in the affidavit, it is the duty of the court to frame a preliminary issue under Section 9A, and the court cannot allow the party to drop the contention unless the defendant desires to give up the contention for the entire trial. The Appellant appealed. The Division Bench upheld the Single Judge's decision, holding that Section 9A is mandatory and that the court must frame a preliminary issue on jurisdiction even if the defendant later seeks to withdraw the objection at the interlocutory stage. The appeal was dismissed.
Headnote
A) Civil Procedure - Jurisdiction - Preliminary Issue under Section 9A CPC - Once a defendant raises a jurisdictional objection in an affidavit, the court must frame a preliminary issue under Section 9A of the Code of Civil Procedure, 1908 (as applicable to Maharashtra) and cannot allow the defendant to withdraw the objection at the hearing of an interlocutory motion unless the defendant gives up the contention for the entire trial. (Paras 4-6) B) Limitation - Jurisdictional Issue - Bar of limitation is a jurisdictional issue under Section 9A CPC - The court cannot permit a defendant to not press the limitation objection at the interlocutory stage without deciding it as a preliminary issue, as it goes to the jurisdiction of the court. (Paras 2-4)
Issue of Consideration
Whether a defendant who has raised an objection as to the jurisdiction of the court (including limitation) in an affidavit in reply can be permitted to give up that stand at the hearing of an interlocutory motion, or whether the court must frame a preliminary issue under Section 9A of the Code of Civil Procedure, 1908 as applicable to Maharashtra.
Final Decision
Appeal dismissed. The order of the Learned Single Judge directing that a preliminary issue be framed under Section 9A of the Code of Civil Procedure, 1908 is upheld.
Law Points
- Section 9A of CPC is mandatory
- once a jurisdictional objection is raised
- court must frame preliminary issue
- party cannot withdraw objection at interlocutory stage
- limitation is a jurisdictional issue
