In an attempt to reduce judicial backlog in courts — referred to as pendency — the Maharashtra government’s Law and Judiciary Department has taken a remarkable step: on Thursday, it issued the CPC (Maharashtra Amendment) Ordinance, 2018, signed by Governor C. Vidyasagar Rao, deleting Section 9A from the Code of Civil Procedure Code (CPC).
Section 9A, was inserted in 1970, when a suit was filed against the government in the Bombay City Civil Court without a valid notice being issued.
A court would grant an ad interim (temporary) injunction and an adjournment to plaintiffs regardless of jurisdiction. This would enable plaintiffs to issue a notice to the government, then after the expiry of the period of the notice, withdraw the suit with the liberty to file a fresh suit and seek continuation of the earlier injunction.
The ordinance says that the practice of granting injunctions without going into the question of jurisdiction had been ‘leading to grave abuse’ and it was against this backdrop that section 9A was introduced.
It states, “However, today, Section 9A has become a cumbersome and tedious provision which has contributed to judicial backlog and given rise to several complications. Consequently, Section 9A of the said Code has given rise to at least two judicial bottlenecks which have stymied the speedy disposal of cases. Firstly, when an issue is raised under the section, a court cannot dispose a motion (application) until the trial into such an issue is concluded and the issue is finally decided. The motion consequently remains pending for several years, and ad interim relief masquerades virtually as final relief. Secondly, when such an issue is raised, two trials have to be conducted, viz., one on the preliminary issue and the other on the remaining issues, each subject to its own round of appeals and Special Leave Petitions. All this needlessly burdens the court.”
Mixed reactions
V.M. Kanade, a retired Justice of the Bombay High Court, told The Hindu , “9A says that whenever a question of inherent jurisdiction is raised, that should be decided first. My view is that the deletion of 9A will not make any difference and the position will continue to remain the same — that is, the pendency will remain — as now Order 14 Rule 2 of CPC will prevail, which essentially states that court has to pass a judgement on all issues not withstanding the fact that a preliminary issue may have been decided. Earlier, what used to happen was one party who wanted to delay proceedings would file an application by filing a preliminary objection about inherent lack of jurisdiction and the matter would remain pending. This will be exploited instead, unless clarified.” He concludes that deleting 9A will not be sufficient and that further legislation and deliberation is required.
Senior counsel Milind Sathe differs. Section 9A was supposed to help the court as cases could be thrown early, he said.
