[Section 9-A CPC] Trial Court Cannot Frame Issue Which Only Disposes Of The Suit In-Part: Bombay High Court

The Bombay High Court has held that under Section 9-A CPC (now repealed by the CPC (Maharashtra Amendment) Act, 2018), a Trial Court cannot frame an issue which has the effect of disposing of the suit only in part.

The Court clarified that if consideration of a preliminary issue was pending on the date of commencement of the Amendment Act, 2018, the issue could be decided by the court as if Section 9-A CPC was not repealed.

The petitioners/plaintiffs challenged the order of the Trial Court in allowing the application of respondents/defendants to frame a preliminary issue of limitation under Section 9-A CPC in the suit for specific performance. The court could

The Single Judge Bench referred the question to be placed before the Chief Justice for constitution of appropriate bench because he did not agree with the interpretation of Division Bench of Bombay High Court in Ferani Hotels Private Limited vs. Nusli Nevile Wadia & Ors (2013 (3) Bom. C.R. 699), where it was held that a Trial Court could dismiss even a part of suit or cause of action while exercising its power under Section 9-A CPC.

The bench of Justice Revati Mohite Dere, Justice Amit Borkar and Justice Gauri Godse looked into the statement of objects and reasons for enacting Section 9A CPC. The Court noted that the provision was introduced in 1970 to address the practice of filing suits without prior notice, exploiting a loophole where plaintiffs could withdraw and re-file suits to secure interim injunctions without the court first adjudicating on jurisdiction. Reintroduced in 1977 with slight revision, a non-obstacle clause was inserted. The Court observed that Section 9A CPC was introduced to determine jurisdiction as a preliminary issue before granting interim reliefs and thus prevent purloined litigation.

The respondents contended that the trial court can decide the objection of a party to a suit that has the effect of disposing the suit 'in part'. The Court however stated that substituting the expression 'suit' with 'part of suit' in section 9-A would be inconsistent with the rules of interpretation and would change the meaning and scope of the provision.

It noted that if the provision was introduced to determine the jurisdictional issues at early stages of trial, substituting 'suit' as 'part of suit' would alter the intent and objective of the provision. The Court observed “The term “part of suit” could imply a division or segment of the suit, potentially leading to interpreting jurisdictional questions at different stages or for different parts of the suit separately”, thus defeating the legislative intent.

The Court observed that Section 9A CPC enables any party to the suit to raise an objection of jurisdiction at the time of hearing of the application of interim relief. It stated that it is necessary to interpret the term 'suit' consistently throughout Section 9-A. It noted that the phrase 'made in any suit' in the first part of sub-section (1) refers to the application for interim relief being made in the context of the entire suit. Therefore, the expression 'such a suit' in the later part of sub-section (1) should be understood to mean the entire suit as well.

“The expression 'made in any suit' in the first part of sub-section (1) of Section 9-A of the CPC undoubtedly refers to and contemplates 'entire suit' and, therefore, the expression 'such suit' in the later part of sub-section (1) of Section 9-A of the CPC needs to be assigned same meaning as contemplated in the earlier part.”

It stated the use of the expression 'such a suit' in Section. 9A indicates that the trial court must address jurisdictional issue concerning the entire suit before granting any interim orders. This prevents parties from raising partial jurisdictional issues and helps streamline judicial proceedings by ensuring jurisdiction is dealt from the start the court observed.

The Court therefore held that under Section 9A CPC, the Trial Court can frame a jurisdictional issue only if the adjudication of such issue would dispose of the suit in its entirety. It cannot frame an issue which has the effect of disposing of the suit only in part.

Case title: Govinda Goga Donde & anr. vs. Mayur Ramesh Bora & ors. (WRIT PETITION NO.6769 OF 2011)

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