India: Reversing An Old Folly: Section 9A Of Civil Procedure Code, 1908.

Last Updated: 31 October 2018
Article by Renjith Nair and Sonam Mhatre

Section 9A of Civil Procedure Code

Section 9A of the Civil Procedure Code, 1908 ("the Code") was inserted vide Code of Civil Procedure (Maharashtra Amendment) Act, 1970. Since the Code falls under Entry 13 of the Concurrent List provided in the Seventh Schedule of the Constitution of India, the Code may be amended by the state legislatures and in exercise of its powers, the state of Maharashtra added Section 9A into the scheme of the Code. However, in 1976, the Code was extensively amended by the Code of Civil Procedure (Amendment) Act, 1976 by the Parliament. By virtue of Section 97 the aforesaid Amendment, all amendments made by state legislatures before the commencement of the Amendment Act were repealed to the extent of their inconsistency to the Amendment Act. Consequently, the State Legislature re-enacted Section 9A vide Code of Civil Procedure (Maharashtra Amendment) Act, 1977 with the assent of the President of India in accordance with Article 254(2) of the Constitution of India.

Section 9A provided that where an application has been made for granting or setting aside an order granting any interim relief in a suit, if either of the parties challenge the jurisdiction of the Court to entertain the suit, the Court would have to decide the preliminary issue of jurisdiction before deciding the aforesaid application.

Why was Section 9A introduced?

Section 9A of the Code was a response to the judgment of the Hon'ble High Court of Bombay in the matter of Institute Indo-Portuguese v. Theotonio Borges1. In the aforesaid case, it was held by the Hon'ble High Court that in a case where the Applicant seeks an appointment of receiver under Order XL, Rule 1 of the Code, the Court assumes that the suit has been filed before the appropriate Court and proceeds on such an assumption. Thus, it was held that an objection with respect to the jurisdiction of the Court to entertain the suit would not be maintainable in such proceedings.

After the pronouncement of the Institute Indo-Portuguese case, it became a common practice for Plaintiffs to institute suits against the Government in the trial court in Bombay without issuing notice under Section 80 of the Code. Since Section 80 of the Code required a notice of sixty days before institution of a suit against the Government, the Plaintiff would pray for urgent ad-interim reliefs which would be granted by the Court without deciding the question of jurisdiction. Once the matter was adjourned, the Plaintiff would issue a notice to the Government and after the expiry of the period of the notice, the Plaintiff would withdraw the suit with liberty to file a fresh suit. Once the fresh suit was filed, the Plaintiff would seek continuation of the ad-interim relief granted earlier.

Why is Section 9A being deleted?

However, Section 9A has posed some difficult riddles for litigants. Once an issue is raised under Section 9A of the Code, the Court must decide the preliminary issue before deciding the motion. As a result, the motion remains pending indefinitely and further, there is a multiplicity of proceedings since the order on preliminary issue is challenged up to highest forum. In such circumstances, the state legislature has found it expedient to delete Section 9A of the Code.

What is the law today?

Section 9A of the Civil Procedure Code, 1908 ("the Code") has been deleted by virtue of the promulgation of Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018 ("the said Ordinance") on 27th June, 2018. The said Ordinance deletes Section 9A of the Code of Civil Procedure Code, 1908. Further, the following clarifications have been provided in the said Ordinance:

  1. With respect to sub-judice matters where consideration of a preliminary issue envisaged under Section 9A is pending on the date of promulgation of the said Ordinance, such issue will be deemed to have been framed under Order XIV of the Code and it shall be decided by the Court along with all other issues at the time of final disposal of the suit itself. In cases, where, if any evidence has been led by any party in such a case, the Court must consider such evidence along with other issues at the time of final disposal of the suit itself.
  2. If an order of the Court dismissing a challenge under Section 9A of the Code regarding its jurisdiction is under Appeal, such proceedings will stand abated. If the decree passed by the court in a case where a challenge under Section 9A of the Code has been dismissed and an Appeal has been instituted against such a decree, the same shall resume and the ground of objection under Section 9A of the Code will be treated as one of the grounds of objection in the Appeal.
  3. In cases where the challenge to jurisdiction of the Court has been allowed and an appeal/revision against such an order is sub-judice, the proceedings will continue as if the said Ordinance has not been promulgated. However, if the Appellate/Revisional Court remands the matter to the trial court for reconsideration of preliminary issue under Section 9A, the provisions of the Code would apply.
  4. In cases where an ad-interim relief has been passed under Section 9A (2) of the Code, such an order will be deemed to have been made under Order XXXIX of the Code and the Court will confirm, modify or vacate such order at the time of deciding such an application.

The said Ordinance has been promulgated by the Governor of the State of Maharashtra with prior assent of the President of the Union of India since the amendment falls under Entry 13 of the Concurrent List provided under Seventh Schedule of the Constitution of India. The said Ordinance falls squarely within the purview of the proviso to Clause (3) of Article 213 of the Constitution of India. Since the Ordinance has been promulgated with the prior approval of the President, further reservation of the Ordinance for the assent of the President under Article 254(2) of the Constitution would not be required.2

Conclusion

The notoriety of Section 9A of the Code in contributing to multiplicity of litigation and judicial backlog is well documented. The collective exasperation of the courts with respect to the delay caused by parties resorting to challenge under Section 9A of the Code is summed up in the following paragraph of the judgment of the High Court of Bombay in the matter of Madhuriben K. Mehta v. Ashwin Rupsi Nandu3

"26.This Court is bound by the aforesaid judgments. However, this Court would be failing in its duty if it did not record the fallout of the procedure of considering all orders passed even upon detailed arguments on affidavits, as "ad-interim" orders despite the provision of Sub-Sec (2) of Section 9A containing the non-obstante clause referring to the provision contained in Sub-Sec (1) of Section 9A of the CPC. It may be noted that the abuse which was sought to be remedied by the introduction of Section 9A as set out in para 14 in the case of Smithkline Beechem Vs. HLL 2003 (105) 2 BLR 547 which is recited in para 4 in the case of Royal Palms (supra) and para 11 in the case of Mukund Ltd. (supra), has given way to the other abuse of duplication of judicial work by repeated applications which has become an endemically circuitous practice."

Since the Courts have decided in various cases that where the preliminary issue required adjudication of a question of law and fact, the Court was required to conduct a trial and the parties were entitled to lead evidence in order to assist the Court in adjudication of the issue. What would entail is a long drawn out trial at a preliminary stage and before the merits of the matter were gone into. However, now that Section 9A of the Code has ceased to operate, the number of pending motions before the Court is bound to reduce in volume.

Footnotes

1  AIR 1959 Bom 275

2 Laxmibai v. State of MP [AIR 1951 Nag 94]

3 2012 (5) Bom C.R. 27

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions