Case Note & Summary
The writ petition arose from a suit filed before the Co-operative Court, Solapur, by the respondents against the petitioner cooperative bank. The petitioner, as defendant, applied under section 9A of the Code of Civil Procedure, 1908 (as applicable in Maharashtra) for framing a preliminary issue on the jurisdiction of the court and maintainability of the suit. The Co-operative Court rejected the application on 7 December 2002, and the revision application before the Co-operative Appellate Court was dismissed on 1 September 2004. Aggrieved, the petitioner filed the present writ petition challenging that order. The central legal issue that emerged before the High Court was whether section 9A of the Code of Civil Procedure, 1908, introduced in the State of Maharashtra by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977, stood repealed by section 32 of the Code of Civil Procedure (Amendment) Act, 1999 (Central Act No.46 of 1999) and/or section 16 of the Code of Civil Procedure (Amendment) Act, 2002 (Central Act No.22 of 2002). If section 9A was repealed, the application under that provision could not have been entertained. The petitioner argued that section 9A continued to apply and that the lower courts ought to have framed a preliminary issue. The respondents, through counsel, contended that section 9A was inconsistent with the amended Code and was therefore repealed by the saving clauses of the Central Amendment Acts, relying on three Supreme Court decisions: Ganpat Giri v. Second Additional District Judge, Baliya (1986) 1 SCC 615, Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, and Iridium India Telecom Ltd v. Motorola Inc (2005) 2 SCC 145. The High Court examined the constitutional framework under Articles 246 and 254 of the Constitution of India and Entry 13 of the Concurrent List. It noted that both Parliament and State Legislatures can legislate on civil procedure, but a State law that has received Presidential assent prevails over a prior parliamentary law, unless subsequently repealed by Parliament. Section 9A was inserted by the Maharashtra Amendment Act, 1977 after receiving Presidential assent, and it required that when an objection to jurisdiction is raised at the hearing of an application for interim relief, that issue must be decided as a preliminary issue. The Central Amendment Acts of 1999 and 2002 introduced sweeping changes to the Code with the object of expediting civil litigation, and their respective saving clauses provided that any State amendment inconsistent with the amended Code would stand repealed. The court analysed the concept of 'inconsistency' and held that it does not mean mere absence of a similar provision in the central law; rather, the State amendment must conflict with or obstruct the scheme and object of the central law. Section 9A, by mandating early determination of jurisdictional objections, actually aligns with the goal of speedy disposal. The court distinguished the cited Supreme Court cases on the ground that they involved State amendments that were found to be obstructive or directly in conflict with the central amendments. In contrast, section 9A was found to be complementary and not repugnant. Consequently, the court held that section 9A of the Code of Civil Procedure, 1908, as inserted by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977, is not repealed by section 32 of the Central Amendment Act, 1999 or by section 16 of the Central Amendment Act, 2002, and continues to apply in the State of Maharashtra. The writ petition was disposed of in terms of this finding.
Headnote
A) Constitutional Law - Legislative competence and repugnancy in Concurrent List - Entry 13 of List III of 7th Schedule - Constitution of India, Articles 246 and 254 - Both Parliament and State Legislatures can enact laws on civil procedure; in case of repugnancy, parliamentary law prevails, but a State law reserved for and receiving Presidential assent prevails in that State subject to Parliament's power to subsequently amend, vary or repeal it. (Paras 5-8) B) Civil Procedure - Section 9A CPC (Maharashtra Amendment) and its consistency with Central Amendments - Code of Civil Procedure, 1908, Sections 9A, 32 of Central Act No.46/1999, 16 of Central Act No.22/2002 - Section 9A, inserted by the Maharashtra Amendment Act, 1977 with Presidential assent, requires a preliminary determination of a jurisdictional objection before granting interim relief. The Central Amendment Acts' saving clauses provide that inconsistent State amendments stand repealed. The court examined whether Section 9A conflicts with the scheme of the amended Code, focusing on its object of expeditious disposal of jurisdictional issues. Held that Section 9A does not frustrate but rather advances the goal of reducing delays, and is therefore consistent and not repealed. (Paras 9-12) C) Statutory Interpretation - Meaning of 'consistent' in repeal and savings clauses - Code of Civil Procedure (Amendment) Acts, 1999 and 2002, Sections 32 and 16 - The 'consistency' test requires a substantive comparison of the object and scheme of both laws. A State amendment is not inconsistent merely because the central Act does not contain a corresponding provision; it must actually obstruct or be repugnant to the central law's design. Section 9A's direction to decide jurisdiction as a preliminary issue does not hinder but aids expeditious resolution. (Paras 11-12) D) Precedent - Distinguishing Supreme Court decisions on repeal of State amendments - Ganpat Giri v. Second Additional District Judge, Baliya (1986) 1 SCC 615; Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262; Iridium India Telecom Ltd v. Motorola Inc (2005) 2 SCC 145 - These cases involved State amendments that were inconsistent with later central changes. Here, the Court found Section 9A consonant with the central amendments' aim of speedy disposal and therefore not covered by the ratio of those decisions. (Paras 11-12)
Issue of Consideration
Whether section 9A of the Code of Civil Procedure, 1908 in relation to its application in the State of Maharashtra as introduced by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977 stands repealed by section 32 of the Code of Civil Procedure (Amendment) Act, 1999 and/or by section 16 of the Code of Civil Procedure (Amendment) Act, 2002.
Final Decision
Held that Section 9A of the Code of Civil Procedure, 1908, as inserted by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977, is not repealed by section 32 of the Code of Civil Procedure (Amendment) Act, 1999 nor by section 16 of the Code of Civil Procedure (Amendment) Act, 2002 and continues to apply in the State of Maharashtra. The writ petition was disposed of in terms of this finding, effectively upholding the legal validity of section 9A but leaving the lower court orders undisturbed as the petition was not specifically allowed or disallowed on merits beyond the legal question.
Law Points
- Section 9A of the Code of Civil Procedure
- 1908 as inserted by the Code of Civil Procedure (Maharashtra Amendment) Act
- 1977 is not inconsistent with the Code as amended by the Central Amendment Acts of 1999 and 2002 and therefore not repealed
- a State law on civil procedure which has received Presidential assent prevails unless expressly or impliedly repealed by a subsequent parliamentary enactment
- repugnancy under Article 254 of the Constitution must be determined by examining whether the State law is consistent with the object and provisions of the central law
- the test for consistency under section 32 of the Central Amendment Act
- 1999 and section 16 of the Central Amendment Act
- 2002 is not mere absence of an analogous provision but whether the State amendment conflicts with or frustrates the scheme of the amended Code
