The Plea of Limitation I: Section 9A of The Code of Civil Procedure, 1908

Section 9A of the Code of Civil Procedure, 1908 (“Code”) is a State Amendment to the Code, inserted by Section 3 of the Maharashtra Act No. 65 of 1977. Section 9A is mandatory in nature. It mandates the Court to decide the jurisdiction of the Court before proceeding with a Suit and granting interim relief by way of injunction. In Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar, 2015 (3) SCALE 34 (“Kamalakar”) it was held the expression Jurisdiction in Section 9A is used in the narrow sense and does not contemplate issues of limitation. A 2-Judge Bench in Foreshore Co-operative Housing Society Ltd. v. Praveen D. Desai, [Civil Appeal No.7732 of 2011] has considered that Kamalakar, “with great respect”, is a precedent “of no moment”, “without any argument, without any citation of authority”, contrary to the law settled. The term Jurisdiction, in Section 9A, is a “term of art”, “used in a wider sense and is not restricted to the conventional definition of either pecuniary or territorial jurisdiction.” When Section 9A stands attracted, the Court is precluded from adjudicating the matter on merits, unless it decides the plea of limitation as a preliminary issue.

Quiz Time: There are two exceptions to the doctrine of precedent. Is Kamalakar a per incuriam decision or is it a decision passed sub silentio?