MAHARASHTRA
REPEALS SECTION 9A OF CPC | DELETION OF OBJECTION ON JURISDICTION AS A
PRELIMINARY ISSUE
Maharashtra Government very recently passed an ordinance deleting Section 9A of the Code of Civil Procedure, 1908 (CPC).
SECTION 9A of CPC
Section 9A of CPC was introduced because the practice of granting injunctions, without going into the question of jurisdiction even though raised was leading to grave abuse. It was against this backdrop that Section 9A was introduced into the CPC.
Section 9A of CPC provided that ``Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue``. However this Section 9A over a period of 30 years led to judicial backlog and also provided a method to delay the proceedings.
Raising an issue under Section 9A of CPC, led to an extensive argument on merits on the issue of jurisdiction which resulted in an entire trial on the issue of jurisdiction thereby causing delays and the grant of ad-interim reliefs. Further, it led to conducting of 2 trials, one for determining the issue of jurisdiction and the other on the remaining issues for which the suit is filed.
Against this background, the Maharashtra Government passed the Ordinance deleting this Section 9A.
INTRODUCTION OF CODE OF CIVIL PROCEDURE (MAHARASHTRA AMENDMENT) ORDINANCE, 2018
The statement of objects and reasons of the CPC Ordinance, 2018 (“Ordinance”) lays out why the said provision was deleted-
``All this needlessly burdens the Court with duplication and results in a waste of judicial time and resources. In fact, in Madhuriben K. Mehta vs. Ashwin Rupsi Nandu ((2012) 5 Bom. CR 27), the Bombay High Court took the view that section 9A has led to the “abuse of duplication of work by repeated applications which has become an endemically circuitous practice. It is, therefore, considered expedient to amend the Code of Civil Procedure, 1908, in its application to the State of Maharashtra, by deleting the said section 9A.``
APPLICATION OF 9A OF CPC AFTER THE INTRODUCTION OF THE ORDINANCE
The CPC provides as follows:
SECTION 9A of CPC
Section 9A of CPC was introduced because the practice of granting injunctions, without going into the question of jurisdiction even though raised was leading to grave abuse. It was against this backdrop that Section 9A was introduced into the CPC.
Section 9A of CPC provided that ``Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue``. However this Section 9A over a period of 30 years led to judicial backlog and also provided a method to delay the proceedings.
Raising an issue under Section 9A of CPC, led to an extensive argument on merits on the issue of jurisdiction which resulted in an entire trial on the issue of jurisdiction thereby causing delays and the grant of ad-interim reliefs. Further, it led to conducting of 2 trials, one for determining the issue of jurisdiction and the other on the remaining issues for which the suit is filed.
Against this background, the Maharashtra Government passed the Ordinance deleting this Section 9A.
INTRODUCTION OF CODE OF CIVIL PROCEDURE (MAHARASHTRA AMENDMENT) ORDINANCE, 2018
The statement of objects and reasons of the CPC Ordinance, 2018 (“Ordinance”) lays out why the said provision was deleted-
``All this needlessly burdens the Court with duplication and results in a waste of judicial time and resources. In fact, in Madhuriben K. Mehta vs. Ashwin Rupsi Nandu ((2012) 5 Bom. CR 27), the Bombay High Court took the view that section 9A has led to the “abuse of duplication of work by repeated applications which has become an endemically circuitous practice. It is, therefore, considered expedient to amend the Code of Civil Procedure, 1908, in its application to the State of Maharashtra, by deleting the said section 9A.``
APPLICATION OF 9A OF CPC AFTER THE INTRODUCTION OF THE ORDINANCE
The CPC provides as follows:
- If the consideration of preliminary issue framed under Section 9A of CPC is pending the same shall be deemed to be an issue framed under Order XIV of CPC.
- If evidence has been led by any party on the preliminary issue under Section 9A of CPC, the same shall be considered by the Court along with evidence, if any, led on other issues in the suit at the time of final disposal of the suit.
- In cases where the preliminary issue framed under Section 9A of CPC has been decided, holding that the Court has jurisdiction to entertain the suit and such a decision is challenged before a revisional Court then on date of commencement of the said Ordinance, such revisional proceedings shall stand abated.
- In cases where the preliminary issue framed under Section 9A of CPC has been decided, holding that the Court has no jurisdiction to entertain the suit and such a decision is challenged before a revisional Court then such revisional proceedings shall continue and the said Ordinance shall not be applicable. Provided that in case the appellate or revisional court remands the matter to the trial court for reconsideration, upon receipt of these proceedings by the trial Court, all provisions of the principal act shall apply.
- In all cases, where an ad-interim relief has been passed under sub-section (2) of section 9A of CPC prior to its deletion, such order shall be deemed to an ad-interim order made under Order XXXIX of the Principal Act (Order XXXIX-Temporary Injunctions and Interlocutory Orders).MHCO COMMENT: The government is hoping that by deletion of Section 9A of CPC, it would reduce the burden of the Courts. However, the actual impact must be analysed over a period of time.The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.
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