PARESH KAPADIA Vs. SANDEEP RUNWAL AND ORS

JUDGEMENT

(1.) In these three suits defendants have raised the issue of jurisdiction under Section 9A of the Code of Civil Procedure (CPC). In Suit No.179 of 2017 and Suit No.247 of 2017 this Court was pleased to frame issue under Section 9A of CPC. In Suit No.215 of 2017 no such issue has been framed but parties were directed to file their evidence affidavits.

(2.) As per the Code of Civil Procedure (Maharashtra Amendment) Ordinance, 2018 (the First Amendment Act), Section 9A of Code of Civil Procedure, 1908 (Maharashtra Amendment) came to be deleted. The legality of deletion of Section 9A was challenged in the Bench of this Court at Aurangabad in Writ Petition No.12607 of 2017 with Writ Petition No.14076 of 2017. This Court by an order dated 12th December 2018 was pleased to reject the challenge.

(3.) The Maharashtra Government on 15th December 2018 notified the Civil Procedure (Maharashtra Amendment) (Amendment) Act, 2018 (the Second Amendment Act) amending the First Amendment Act. By this Act, Section 3(1) of the First Amendment Act came to be substituted to the effect that where consideration of a preliminary issue framed under Section 9A is pending on the date of commencement of the First Amendment Act, the said issue shall be decided and disposed of by the Court under Section 9A, as if the said Section 9A has not been deleted. Since the Second Amendment Act was notified soon after the First Amendment Act of deleting Section 9A was notified, the Court was concerned as to whether the second amendment was valid. One of the main concern was that the second amendment is discriminatory and arbitrary to treat one set of litigants differently from others. Even in the three suits before this Court today, in one suit, viz., Suit No.215 of 2017 though the issue of objection has been raised in the affidavit in reply to the notice of motion, formal issue has not been framed. It was also observed from the statement of objects and reasons of both Amendment Act, the method of seeking to achieve the objective aimed at furthering the rights of litigants is inconsistent, i.e., the First Amendment Act seeks to do away with Section 9A (subject to transitioning and sun setting provisions), whereas the Second Amendment Act seeks to re-insert Section 9A.