1. In view of the reference made by the learned Single Judge of this Court (CORAM : A.M. Khanwilkar, J.), Madhuri Prabhakar Patole v. Aruna Satishchandra Gaikwad 2006 (4) Bom. C.R. 238 and directions given by the then Hon'ble Chief Justice, the present matter was placed before us for resolving following issue
ISSUE
Whether Section 9-A of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC) in relation to its applicability in the State of Maharashtra, stands repealed by Section 32 of the Code of Civil Procedure (Amendment Act 1999) i.e. Central Act No. 46 of 1999 and/or by Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 i.e. Central Act No. 22 of 2002?
2. Brief facts giving rise to this reference are as under:
A suit bearing Regular Civil Suit No. 895 of 2005 was filed against the present applicant in the Court of CJSD, Solapur for declaration and injunction. Application Exh-5 was also filed for temporary injunction. The present applicant-original defendant filed application under Section 9-A of CPC and contended that the said Court had no jurisdiction to try the said suit and as such issue with regard to jurisdiction be decided first. The learned trial Judge decided the said issue as a preliminary issue in terms of Section 9-A of CPC, in favour of plaintiff. Hence, original defendant i.e. present applicant filed Civil Revision Application No. 54 of 2006 in this Court and challenged the order passed by the trial Court.
3. In the meantime, the learned Single Judge of this Court (D.G. Karnik, J.), while deciding Writ Petition No. 10602 of 2004 had passed an order on 14/3/2006 Solapur Social Urban Co-operative Bank Ltd. v. Nigam A. Mannan Beskar reported in : 2006(4)BomCR217 whereby it was held that Section 9-A of CPC as applicable to State of Maharashtra stands repealed by Section 32 of the Code of Civil Procedure (Amendment) Act, 1999 and also by Section 16 of the Code of Civil Procedure (Amendment) Act of 2002.
4. While hearing the learned Advocate for the applicant argued before the learned Single Judge that the view expressed in the above mentioned writ petition is not correct and there is in fact no inconsistency or collision between the provision of Section 9-A and provision of Central (Amendment) Act, 1999 and Central (Amendment) Act, 2002. It was argued that Section 9-A of CPC is in addition or supplemental to the relevant provision of the Code and as such it can not be said that the said provision stands repealed. It seems that during the course of arguments, the learned Advocate for the respondent also fairly conceded that the issue needs in depth consideration. The learned Single Judge CORAM: A.M. Khanwilkar, J. also found that the provision of Section 9-A is not inconsistent with Central Act and the Judgment in Writ Petition No. 10602 of 2004 dated 14/3/2006 requires in depth consideration. The learned Single Judge, therefore, directed the Registry to place the matter before the Hon'ble Chief Justice for seeking direction for referring the above mentioned issue to a larger Bench. When the Registry placed the matter accordingly before the Hon'ble the Chief Justice, His Lordship was pleased to direct to place this matter before this Bench. Thus, we are required to resolve the above issue.
5. In order to answer the above referred issue correctly, it is first necessary to see the relevant provisions, concerning the said issue. It is, therefore, first necessary to see what Section 9-A of CPC says. It runs as follows
9-A. 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.-(1) Notwithstanding anything contained in this Code or any other law for the time being in force, If, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue Mhase S.B and Sathe S.R. J., as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in Sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the Jurisdiction.
6. As it is to be decided whether the above mentioned provision stands repealed by Sections 32 and 16 of the Amendment Act of 1999 and Amendment Act of 2002 respectively, it is worthwhile to see Section 32 of the CPC (Amendment), Act 1999.
32. Repeal and savings.--(i) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.
7. The Central (Amendment) Act of 2002 has come into force with effect from 1/7/2002 Sub-section (1) of Section 16 of the Central Amendment Act of 2002 is identical with Sub-section (1) of Section 32 of the Central (Amendment) Act of 1999.
8. Admittedly, as per Entry 13 of the concurrent list of 7th Schedule to the Constitution of India Parliament as well as Legislature of any State have power to enact any law relating to Civil Procedure including all matters included in Code of Civil Procedure at the commencement of the Constitution. Under Clause (2) of Article 246 of the Constitution of India Parliament and, subject to Clause (1) of Article 246, the legislature of any State have power to make laws in respect of any of the matters enumerated in the concurrent list.
9. Clause (1) of Article 254 of the Constitution of India provides that if any provision of any law made by the legislature of a State is repugnant to any provision of law made by Parliament or to any provision of an existing law with respect to one of the matters enumerated in the concurrent list, then subject to the provisions of Clause (2), the law made by the Parliament whether passed before or after the law made by the legislature of such state, or as the case may be existing law, shall prevail and the law made by the legislature of the State shall, to the extent of repugnancy be void. Clause (2) of Article 254 of the Constitution of India provides that where a law made by the legislature of a State with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter then the law made by the legislature of the State shall, if it has been reserved for consideration of the President and has received his assent prevail in that State. Proviso to Clause (2) of Article 254 provides that nothing in Clause (2) shall prevent Parliament from enacting at any time any law with respect to the same subject-matter, including a law adding to, amending, varying or repealing the law so made by the legislature of the State.
10. Admittedly, Section 9-A of CPC was introduced by State of Maharashtra initially in the year 1970 by the Code of Civil Procedure (Maharashtra amendment) 1970. However, Maharashtra Amendment Act of 1976 was repealed and Section 9-A was again added in the Code in relation to its application in State of Maharashtra by the Code of Civil Procedure (Maharashtra Amendment) Act, 1977. It was reserved for the assent of the President and was published in Maharashtra Government Gazette on 9/12/1977 after having received the assent of the President. Thus, application of the above mentioned Section 9-A was continued.
11. Shri Anturkar, learned Advocate for the respondent argued before us that as a result of Section 32 of the Central Amendment Act, 1999 and Section 16 of the Central Amendment Act, 2002 the provisions of Section 9-A stands repealed as the said provision is inconsistent with the provision of Order 14, Rule 2 of the principal Act. Admittedly, after coming into operation of the above mentioned two Central Amendment Acts, the State of Maharashtra has not again inserted Section 9-A and obtained assent for the same from the President. It was, therefore, argued that provision of Section 9-A being inconsistent with the principal Act and in particular with the provision of Order 14, Rule 2 of CPC, it stands repealed. In fact, similar argument was made before the learned Single Judge (CORAM : D.G. KARNIK, J.), in Writ Petition No. 10602 of 2004 and reliance was also placed on Section 97(1) of the Central Amendment Act of 1976 and two Supreme Court Cases, namely Ganpat Giri v. Second Additional District Judge Baliya reported in : [1986]1SCR15 , Kulwant Kaur and Ors. v. Gurdial Singh Mann reported in : [2001]2SCR525 . The learned Single Judge (CORAM : D.G. KARNIK, J.), observed that there is authoritative pronouncement of this Court in which Division Bench of this Court has specifically observed that Section 9-A is a departure from the Procedure established for deciding the preliminary issue as described under Order 14, Rule 2 of CPC. Thus, principally relying on the observations of the Division Bench in Meher Singh v. Deepak Sawhney reported in 1991(1) Bom. C.R. 107 he held that the provision of Section 9-A is inconsistent with the provisions of the Central Amendment Act. The learned Single Judge also observed that his view that the said provision is inconsistent with the Central Act is substantiated by the circumstance namely State of Maharashtra had in fact, obtained assent of the President for the said provision because they were knowing that it was inconsistent with the Central Act. However, unfortunately after the above mentioned two Central Amendment Acts of 1999 and 2002 came into force the State of Maharashtra did not obtain any further assent for introducing Section 9-A. So, the result of the same is that Section 9-A stood repealed as a result of the above mentioned two provisions.
12. Shri Kumbhakoni, learned Additional Advocate General canvassed before us that in Meher Singh v. Deepak Sawhney the Court has only observed that Section 9-A is a departure from the procedure established for deciding preliminary issue as described under Order 14, Rule 2 of CPC. But there is lot of difference between 'departure' and Inconsistency'. So, the said ruling is not applicable and the ratio of the said ruling is not to the effect that Section 9-A is inconsistent with the provisions of Central Act. He also urged before us that Section 9-A and Order 14, Rule 2 operate in a separate field. Object of introducing Section 9-A is not different from the main object of the provisions of Order 14, Rule 2(2) of CPC. Both are not overlapping each other but on the contrary, Section 9-A is supplementary. It is by way of addition and not by way of substitution and as such there is no repugnancy. He also submitted that merely because the State of Maharashtra had obtained assent of the President earlier, it can not be treated as a pointer to hold that the said provision was in fact inconsistent with the provisions of the Central Act. It was only by way of abundant precaution and with a view to rule out any ambiguity, assent was obtained and now when we are considering as to whether the provision of Section 9-A is inconsistent with the provisions of Order 14, Rule 2 of CPC it has to be done independently, by applying the test of inconsistency or repugnancy.
13. In the Deep Chand v. State of U.P. : AIR1959SC648 , K. Subba Rao, J., Speaking for majority held that repugnancy between two statutes may thus be ascertained on the basis of the following 3 principles.
(1) Whether there is direct conflict between the two provisions?
(2) Whether Parliament indicated to lay Mhase S.B. & Sathe S.R. JJ., down an exhaustive code in respect of the subject-matter replacing Act of the State legislature? and,
(3) Whether the law made by Parliament and law made by the State legislature occupy the same field?
14. Similarly, in Basti Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Anr. : (1978)IILLJ412SC . Their Lordships of the Apex Court observed that if two provisions relate to the same subject-matter to the same situation, and both substantially overlap and are co-extensive and at the same time so contrary and repugnant in their terms and impact that one must perish wholly if the other were to prevail at all then, only then, the said provision can be termed as inconsistent.
15. Shri Kumbhakoni, learned Additional. Advocate General has placed reliance on a case M. Karunanidhi v. Union of India and Anr. : 1979CriLJ773 wherein Their Lordships have observed in paragraph 24.
24. It is well-settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional Prima fade, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:
1. That there is a clear and direct inconsistency between the Central Act the State Act
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collusion with each other and a situation is reached where it is impossible to obey the one without disobeying the other.
Further in paragraph-35 Their Lordships have observed:
35. On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:
1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they can not stand together or operate in the same field.
2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collusion with each other, no repugnancy results.
4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.
16. So taking into consideration the above mentioned observations of their Lordships in the various cases we have to find out whether the provision of Section 9-A can be said to be inconsistent with the provisions of Order 14, Rule 2 of the Central Act of CPC.
17. In order to compare the two provisions it is necessary to reproduce the provision of Order 14, Rule 2 of CPC. It is as under:
Rule 2(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce Judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the Jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
18. Bear reading of the above mentioned two provisions namely Section 9-A and Order 14, Rule 2 indicate that they are not operating in the same field. The same are required to be invoked at different stages. From opening sentence of Section 9-A namely 'where at the hearing of application relating to ad interim relief in Suit, objection to jurisdiction is taken such issue to be decided by the Court as preliminary issue.' and further language, namely, 'if at the hearing of any application for granting or setting aside the order granting any interim relief, whether by way of stay, injunction, appointment of receiver or otherwise made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit the Court shall proceed to determine at the hearing of such application' it is clear that Section 9-A comes into play much earlier than the stage when suit is required to be dealt with by the provisions of Order 14. In fact, if we see the provision of Order 14, Rule 2 of CPC then we find that there is nothing in the said provision which specifically says that issue with regard to jurisdiction can not be tried as preliminary issue at any stage. On the contrary, Order 14, Rule 2(2) makes exception to the main Rule and says that when issue both of laws and of facts arise in the same suit and Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only it may try that issue first, if that issue relates to jurisdiction of the Court. So, by no stretch of imagination it can be said that the provision of Section 9-A is inconsistent with the provision of Order 14, Rule 2. The main object or the underlying idea under both the provisions is that if the relief claimed can not be granted on the point of jurisdiction then it is better to decide that issue first. We can not ignore the fact that there is any specific provision in the Central Act laying down procedure as to what should be done at the time of interim relief if objection is taken on the ground of jurisdiction. If any such specific provision would have been in the said Central Act, then it was possible to compare Maharashtra Amendment in respect of Section 9-A with such provision but when we find that there is in fact no similar provision in the Central Act, there is no question of any inconsistency with the provisions of Central Act. Even after going through the entire Judgment in Meher Singh v. Deepak Sawhney reported in 1991 (1) Bom. C.R. 107 we do not find that it has been held in the said case that the provision of Section 9-A is inconsistent with the provisions of the Central Act. Merely because the Division Bench observed that there is departure from the procedure it wanted to convey inconsistency. On the contrary, the word 'departure' is used to convey that there is deviation from earlier procedure. Deviation does not necessarily mean inconsistency.
19. In order to point out as to how the Court should approach the issue when there are two statutes one of the Central and the other of the State on similar subject and how to find out whether there is any inconsistency in the State Act as compared to Central Act, Shri Kumbhakoni has drawn our attention to a case Ramchandra Mawalal, Varanasi and Ors. v. State of UP and Ors. : [1984]2SCR348 wherein Their Lordships have observed:
The principle may be stated thus. The Centre and the State both can not speak on the same channel and create disharmony. If both speak, the voice of the Centre will drown the voice of the State. The State has to remain 'silent' or it will be 'silenced'. But the State has the right to 'speak' and can 'speak' (with unquestionable authority) where the Centre is 'silent, without introducing disharmony. If the Centre sits only on a portion of the Chair, the State can sit on the rest of the portion with arms thrown on the shoulders of each other. While the State can not sit on the lap or on the shoulders of the Centre, both can certainly walk hand in hand, lending support to each other, in a friendly manner, towards the same destination. If the Centre has built a wall, and has left a gap from which intruders can infiltrate, the State can fill the gap in the wall, and thus make its own contribution to the Common cause.
20. Applying the above principle also it can very well be said that as there was no specific provision in the Central Act for dealing with the objection regarding jurisdiction of the Court, raised at the time of injunction application or receiver application, State of Maharashtra has made the above mentioned provision of Section 9-A. So, it can not be said that it overlaps any of the provisions of the Central Act.
21. It must be noted that when the provision of Section 9-A of CPC is not at all inconsistent with the Central Act there was in fact no need for the State of Maharashtra to obtain assent of the president. However, we find that such assent was obtained earlier only by way of abundant precaution. This is clear even from the 4th recital of the preamble of the Maharashtra Amendment Act, 1977 wherein it is clearly mentioned that to leave no room for any doubt the said provision was being reintroduced. In other words, reintroduction of Section 9-A by the State legislature and action of obtaining assent from the Hon'ble President was on the principle of 'Abundans cautela non nocet'. So, merely because such assent is not obtained after coming into force the Central Amendment Act of 1999 and Central Amendment Act of 2002, it can not be said that the provisions of Section 9-A stands repealed by virtue of Sections 32 and 16 of the respective Acts because basically the said provision is not at all inconsistent with any of the provisions of Central Act.
22. Reliance was also placed by Shri Anturkar, on a case Ganpat Giri v. Second Additional District Judge Baliya reported in : [1986]1SCR15 , Kulwant Kaur and Ors. v. Gurdial Singh Mann reported in : [2001]2SCR525 wherein Their Lordships were considering the effect of Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976. It would be worthwhile to note that in case of Ganpat Giri the Apex Court was principally concerned with the effect of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 on any amendment made or any provision inserted in the Code of Civil Procedure, 1908 by a State legislature or High Court prior to the commencement of the Amending Act in prior to February 1, 1977 in the different local areas in India where the Code is in force. If they be inconsistent with the provision of the Code as amended by the Amending Act. Question there was, whether Order 21, Rule 72 of CPC as amended by Allahabad High Court and prevailing before commencement of the Amending Act i.e. February 1, 1977 stood repealed by operation of Section 97(1) even though Rule 72 was not amended by Amending Act. The High Court had taken a view that since the Amending Act had not made amendment of any kind in so far as Rule 72 of Order 21 was concerned the amendment made by the High Court of Allahabad to Rule 72 of Order 21 of the Code prior to the commencement of the Amending Act remained intact. The Apex Court, however, did not find favour with the said observations of the High Court.
When Ganpat Giri (Supra) was tried to be relied upon it was submitted on behalf of the petitioner that the said case has been overruled. However, though it is true that in Pr. Rishikesh and Anr. v. Salma Begum Smt. : [1995]3SCR1062 the Apex Court has observed that 'wide construction put up by the Bench with due respect do not appear to be sound', the careful reading of the said case shows that Ganpat Giri has not been over ruled by the said case. On the contrary, it is observed that the ratio in Ganpat Giri must be understood in the light of the facts therein. In fact in Pr. Rishikesh's case also Their Lordship have observed that by virtue of Article 254, Clause (2) and its proviso earlier State amendment which received assent of President, if found to be inconsistent with or repugnant to the subsequent Central amendment to a law of the concurrent subject, would to the extent of repugnancy be void unless the State Legislature reenacts the amendment and obtains assent of President to it. The facts of the above mentioned two cases and the facts of the case in hand are different. The proposition laid down in the above mentioned two rulings is not disputed and can not be disputed. In the facts and circumstances of those cases, it was held by the Apex Court that the provision in the State Act under consideration was not consistent with the provisions of the Central Act. However, in the case at hand we are of the considered view that basically Section 9-A is not at all inconsistent with or repugnant to the provisions of Order 14, Rule 2 of CPC or any other provision of the Central Amendment Act, 1999 or 2002. So, the above cited rulings are of no use to the respondent.
23. Thus, having regard to the position of law and considering the object of Section 9-A as well as the object of Order 14, Rule 2 of CPC and applying all the tests to determine as to whether there is any inconsistency between the two statutes, we have no hesitation to hold that Section 9-A of CPC, introduced by State of Maharashtra is not at all inconsistent or repugnant with the provisions of Order 14, Rule 2 of the Central Act. On the contrary, it supports and supplements the basic idea of Order 14, Rule 2(2) and provides additional provision to further the cause which does not in any way damages or destroys the provision under Order 14, Rule 2 of the Central Act. We, therefore, endorse the view expressed by the learned Single Judge (CORAM : A.M. Khanwilkar, J.), that Section 9-A of CPC is not inconsistent with the provision of Order 14, Rule 2 or any other provision in Central Act and as such it can not be said that Section 9-A stands repealed as a result of Sections 32 and 16 of the Central Amendment Act of 1999 and 2002 respectively.
Hence, we answer the issue under reference in the negative.
In view of above, the Registry to seek necessary direction from the Hon'ble Chief Justice for placing this revision before the appropriate Bench for disposal according to law.