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97 the aforesaid Amendment, all amendments made by state legislatures before the commencement of the Amendment Act were repealed to the extent of their inconsistency to the Amendment Act.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


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.


1  AIR 1959 Bom 275

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

3 2012 (5) Bom C.R. 27

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