1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 1042 /2009 (M/s UB Engineering Ltd. VERSUS M/s Sunil Hi-Tech Engineers Ltd., & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mrs. H.P. Maldhure, counsel for the petitioner. Shri S.V. Bhutada, counsel for the R-1. Shri D.B. Patel, A.G.P. for the R-2. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 14, 2009. Heard the learned counsel for the parties and perused the impugned order dated 02.12.2008. By the impugned order dated 02.12.2008, the trial Court had rejected an application filed by the petitioner under Section 9-A of the Code of Civil Procedure for framing a preliminary issue as to the question of jurisdiction of the trial Court to entertain and decide the suit. It was the case of the petitioner that the petitioner’s Office was situated at Pune and the cause of action had also arisen at Pune. It was further pleaded by the petitioner that the agreement between the parties provided that only the Court at Pune would have jurisdiction to entertain the legal proceedings between the parties. 2 The application filed by the petitioner was strongly opposed by the respondent/original plaintiff. It was the case of the respondent that the respondent had not claimed any interim relief in the present suit and the question of territorial jurisdiction, being a mixed question of law and fact, could be decided after recording of evidence on both the sides. The trial Court upheld the objection raised by the respondent to the application filed by the petitioner under Section 9-A of the Code of Civil Procedure. The learned counsel for the petitioner submitted that the application filed by the petitioner before the trial Court under Section 9-A of the Code of Civil Procedure may be treated as the one under Section 21 of the Code of Civil Procedure. On considering the submissions made on behalf of the parties and on perusal of the impugned order as also the relevant provisions of the Code of Civil Procedure, it is clear that the trial Court did not commit any error in rejecting the application filed by the petitioner. The trial Court rightly held that it was not necessary for the trial Court to decide the issue of jurisdiction as a preliminary issue as the plaintiff/ respondent had not sought any interim relief in the suit 3 filed by the respondent. The Court rightly held that the issue of jurisdiction was a mixed question of law and fact and the same could have been decided after recording the evidence on both the sides. On a perusal of the provisions of Section 9-A of the Code of Civil Procedure, it is clear that the trial Court did not commit any error in rejecting the application filed by the petitioner for the reasons stated in the impugned order dated 02.12.2008. The provisions of Section 21 of the Code of Civil Procedure would not come to the rescue of the petitioner so as to hold that it was necessary for the trial Court to decide the issue of jurisdiction as a preliminary issue. The provisions of Section 21 of the Code of Civil Procedure provide that the objection as to the place of suing cannot be allowed unless such objection is taken at the Court of first instance and at the earliest possible opportunity. In any case, an application could not have been filed by the petitioner under Section 21 of the Code of Civil Procedure for deciding the issue of jurisdiction as a preliminary issue as Section 21 merely creates a bar and does not provide a procedure for deciding the issue of jurisdiction or any other issue as a preliminary issue. The apprehension of the petitioner that the sustaining of the order dated 02.12.2008 would result in drawing an inference that the petitioner had 4 acquiescenced with the jurisdiction of the trial Court is not well founded. The judgment reported in 2004(2) All M.R. 573 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE