Revisiting Section 9-A of the Code of Civil Procedure: A Jurisdictional Odyssey in Maharashtra

Revisiting Section 9-A of the Code of Civil Procedure: A Jurisdictional Odyssey in Maharashtra

1. Introduction

Section 9-A of the Code of Civil Procedure, 1908 (“CPC”)—a creation of the Maharashtra Amendment Acts of 1970 and 1977—introduced a bespoke procedural device that obliged courts to decide objections to their jurisdiction at the threshold whenever interim relief was sought. Although confined to Maharashtra, the provision generated a rich body of precedent, culminating in the Supreme Court’s definitive ruling in Nusli Neville Wadia v. Ivory Properties (2019)[7]. Shortly thereafter, the State Legislature repealed the section, launching a fresh debate on transition, pending matters and doctrinal coherence. This article traces the statutory genesis, judicial construction, legislative repeal and continuing legacy of Section 9-A, situating it within the broader Indian law of jurisdictional objections.

2. Legislative Genesis and Textual Structure

2.1 The 1977 Maharashtra Amendment

The Statement of Objects and Reasons disclosed a two-fold mischief: plaintiffs were exploiting the adjournment of notice of motion for injunctions to obtain ad interim orders despite palpable jurisdictional bars, and the prevailing procedural law (particularly Order XIV Rule 2 CPC) did not compel an ex ante determination of such bars[2]. Section 9-A therefore required courts, “notwithstanding anything contained else­where in the Code”, to frame and decide the jurisdictional issue finally and first.

2.2  Salient Features

  • Trigger: pendency of an application for interim relief (grant, variation or vacation).
  • Scope: “jurisdiction to entertain the suit” (territorial, pecuniary or subject-matter).
  • Consequence: interim relief could not be considered until jurisdiction was upheld.
  • Departure: overrode the discretionary sequencing embedded in Order XIV Rule 2 CPC.

3. Early Bombay Jurisprudence: Expansive Readings and Practical Strains

Bombay High Court decisions such as Meher Singh v. Deepak Sawhny[3] and Immigrants Ideal Producers Co-operative Society v. Jahanara Moiz Dalal[4] treated Section 9-A as a complete departure from the normal procedure, insisting on a final adjudication even where evidence was required. This strict approach, though consonant with the statutory text, bred procedural bottlenecks, frequent appeals and consequential delay— the very antithesis of expedition intended by Order XXXIX CPC.

4. Supreme Court Interventions

4.1 Foreshore Cooperative Housing Society Ltd. v. Praveen D. Desai (2015)

The Supreme Court clarified that limitation defences, however fatal, do not qualify as jurisdictional objections within Section 9-A[5]. While acknowledging earlier dicta suggesting a wider compass (Kamalakar Salunkhe[6]), the Court insisted on a narrow, inherent-jurisdiction test, marking the first major retrenchment of the provision’s reach.

4.2 Nusli Neville Wadia v. Ivory Properties (2019)

The apex Court resolved the lingering conflict by holding that “jurisdiction” in Section 9-A is confined to the court’s legal authority to entertain the suit and excludes all defences on limitation or other merits[7]. In doing so, it:

  • Re-affirmed the dichotomy between existence and exercise of jurisdiction (Pandurang Dhondi Chougule, 1966)[7].
  • Overruled the broader understanding in Kamalakar Salunkhe.
  • Re-emphasised legislative intent—curbing abuse of interim relief, not trying all preliminary bars.

5. Legislative Repeal and Transitional Complexities

5.1 The 2018 Ordinance and Acts

Citing Supreme Court concerns over “two judicial bottlenecks”[11], the Governor promulgated the Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018, later enacted as Act XXI of 2018 and Act LXXII of 2018. Section 3 prospectively repealed Section 9-A and retrospectively abated pending 9-A proceedings, directing courts to apply Order XIV Rule 2 as amended by the Union in 1976/1999/2002[9].

5.2  High Court Responses

  • Paresh Kapadia v. Sandeep Runwal (2019) referred questions of abatement and retrospectivity to a larger Bench[10].
  • Gerard Joseph Rodrigues v. Joseph Anthony D’Cunha (2021) set aside a 9-A limitation ruling as per Nusli Wadia, underlining that limitation is never jurisdictional[11].

6. Doctrinal Parallels and Contrasts

6.1 Order XIV Rule 2 CPC

Post-1976, courts may try a pure question of law first when it relates to jurisdiction or a statutory bar[14]. The rule is discretionary and does not mandate a final decision before interim relief—precisely the rigidity Section 9-A sought to correct. The repeal re-subordinates Maharashtra practice to the national norm.

6.2 Section 11 Suits Valuation Act & Kiran Singh

In Kiran Singh v. Chaman Paswan (1954)[13] the Supreme Court held that valuation-based jurisdictional errors are curable unless prejudice is shown, emphasising substance over form. Section 9-A, by contrast, privileged form (jurisdictional competence) over expediency, yet ultimately suffered the same fate—curtailment once its cost to substantive justice outweighed its utility.

6.3 Central Amendments and the “Implied Repeal” Debate

Before its express repeal, litigants argued that Section 9-A was already impliedly repealed by the CPC Amendment Acts of 1999 and 2002 because of perceived inconsistency with Order XIV Rule 2. A Division Bench in Madhuri Prabhakar Patole v. Aruna Gaikwad (2007)[15] rejected that contention, holding the provisions could coexist, illustrating the judiciary’s reluctance to invoke implied repeal absent clear repugnancy.

7. Critical Appraisal

The life-cycle of Section 9-A offers instructive lessons:

  1. Legislative Experimentation: States may innovate within CPC’s concurrent field, but must periodically reassess efficacy against evolving realities.
  2. Judicial Calibration: The Supreme Court’s narrowing construction preserved the core mischief (forum competence) while discarding over-reach (limitation), foreshadowing legislative repeal.
  3. Systemic Costs: Empirical backlog data motivated repeal; doctrinal elegance must cede to pragmatic functionality.
  4. Transitional Justice: Abatement of pending 9-A proceedings created fresh litigation, proving that procedural reform must incorporate clear savings and sunset clauses.

8. Conclusion

Section 9-A’s four-decade journey—from an assertive procedural safeguard to its judicial contraction and eventual legislative demise—captures the dynamic interplay between legislative intent, judicial interpretation and procedural efficiency in Indian civil litigation. While the provision is now history, its underlying concern—preventing abuse of interim relief in the absence of jurisdiction—remains salient. Courts must therefore deploy the discretionary tools within Order XIV Rule 2 and inherent powers (Section 151 CPC) to strike the delicate balance between timely justice and jurisdictional propriety.

Footnotes

  1. Section 9-A, Code of Civil Procedure, 1908 (as inserted by Maharashtra Acts XIII of 1970 & LXV of 1977).
  2. Statement of Objects and Reasons, Maharashtra Amendment Act, 1977.
  3. Meher Singh v. Deepak Sawhny, 1991 (1) Bom C.R. 107 (Bom HC).
  4. Immigrants Ideal Producers Co-operative Society Ltd. v. Jahanara Moiz Dalal, 2003 SCC OnLine Bom 923.
  5. Foreshore Cooperative Housing Society Ltd. v. Praveen D. Desai, (2015) 6 SCC 412.
  6. Kamalakar Eknath Salunkhe v. Baburao Vishnu Javalkar, (2015) 7 SCC 321.
  7. Nusli Neville Wadia v. Ivory Properties, (2019) 6 SCC 557; 2019 SCC OnLine SC 1313.
  8. Pandurang Dhondi Chougule v. Maruti Hari Jadhav, AIR 1966 SC 153.
  9. Code of Civil Procedure (Maharashtra Amendment) Acts XXI & LXXII of 2018.
  10. Paresh Kapadia v. Sandeep Runwal, 2019 SCC OnLine Bom 1205.
  11. Gerard Joseph Rodrigues v. Joseph Anthony D’Cunha, 2021 SCC OnLine Bom 1565.
  12. Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd., (1998) 5 SCC 69.
  13. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; 1955 1 SCR 117.
  14. Order XIV Rule 2, Code of Civil Procedure, 1908 (as amended by Act 104 of 1976 & Central Amendment Acts 46 of 1999, 22 of 2002).
  15. Madhuri Prabhakar Patole v. Aruna Satishchandra Gaikwad, 2007 SCC OnLine Bom 1059.