: 1 : 7409-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7409 OF 2011 Popat Jaysingh Rajpure .. Petitioner v/s. State of Maharashtra & Ors. .. Respondents ......... Mr. Prashant P. More for the petitioner Mr. Sanjeev P. Kadam i/b P.H. Gaikwad for respondent nos. 9 and 10 Mr. S.D. Rayrikar, AGP for respondent nos. 1 to 8 ......... CORAM : R.Y.GANOO, J DATE : 30th SEPTEMBER,2011. P.C. : 1. Rule. Rule is made returnable forthwith. Learned advocate Mr. Rayrikar waives service on behalf of respondent nos. 1 to 8. Learned advocate Mr. Kadam waives service on behalf of respondent nos. 9 and 10. By consent, petition is taken up for hearing. 2. This suit filed by the petitioner being S.C. Suit No. 136 of 2011 in the Court of learned Civil Judge, Senior Division, Baramati. He filed application below Exh.5. That application was decided on 25th July, 2011 and present respondent nos. 9 to 10 were restrained from causing : 2 : 7409-11-wp=.sxw obstruction to the petitioner’s possession to the suit property. Respondent no.4 was restrained from giving possession as per the measurement report in MR No.606 of 2008 till final disposal of the suit. This order dated 25th July, 2011 was challenged by respondent nos.9 to 10 in the Court of Additional District and Session Judge, Baramati by filing Misc. Civil Appeal No.48 of 2011. The learned Extra Joint (Adhoc) District Judge and Additional Sessions Judge, Baramati by order dated 30th July, 2011 took up on himself task of framing following issue. “Whether the Civil Court has jurisdiction to entertain the suit ?” 3. After framing this issue, he directed the parties to argue on the preliminary issue. After hearing the learned advocates on both sides, the learned Extra Joint (Adhoc) District Judge & Additional Sessions Judge, Baramati on 4th August, 2011 passed the following order. “1] Civil Court has no jurisdiction to entertain the suit. Hence, Special Civil Suit No.136 of 2011 filed by the plaintiff (respondent) and present appeal filed by appellant (original defendant nos. 9 and 10) are hereby disposed of. 2] Both the parties to bare their own costs”. This order dated 4th August, 2011 is challenged in this petition. : 3 : 7409-11-wp=.sxw 4. I have heard learned advocates on both sides. Even if it is accepted for a moment that the learned Appellate Court thought it fit to go into the question of jurisdiction one may not be able to find fault with the said Court. If that is so, one can observe that the learned Appellate Court was right in framing the issue, which is mentioned as regard jurisdiction. In my view, if the Appellate Court was of the view that an issue is required to be framed and had accordingly framed an issue, it was necessary for him to remit the said issue to the trial Court i.e. learned Civil Judge, Senior Division, Baramati and he should have called upon the Court to decide the said issue so that the party aggrieved by the said decision would challenge it in the appropriate Court. Instead of doing that, the learned Appellate Court conducted the hearing and passed the aforesaid order. Granting maximum concession to the learned Appellate Court that he even can decide the aforesaid issue, it was not open for the learned Appellate Court to pass an impugned order namely disposing of the suit after having come to the conclusion that the Court has no jurisdiction. If at all, the learned Appellate Court wanted to conduct the hearing and come to the conclusion on merits and if he was of the view that the Court had no jurisdiction, it was necessary for him to pass an order thereby seeing that the plaint is returned to the petitioner plaintiff for filing it in the proper Court. At any : 4 : 7409-11-wp=.sxw rate, the order passed above on 4th August, 2011 could not have been passed. In my view, this order dated 4th August, 2011 is required to be set aside without going into the question whether the issue of jurisdiction could have been raised. Now that the issue of jurisdiction has been framed in terms of order dated 30th July, 2011, it is now necessary to remit the said issue to the Court of learned Civil Judge, Senior Division, Baramati for decision in accordance with the provisions of law. In view of the above, following order is passed to dispose of the petition. ORDER (i) The order dated 4th August, 2011 passed by learned Extra (Adhoc) District Judge & Additional Sessions Judge, Baramati passed in Misc. Civil Appeal No.48 of 2011 is set aside. Learned Civil Judge, Senior Judge, Baramati is hereby directed to take up the issue of jurisdiction which has been framed by the learned Extra (Adhoc) District Judge & Additional Sessions Judge, Baramati on 30th July, 2011. Accordingly learned Civil Judge, Senior Division, Baramati shall hear both the side on the following issue namely “Whether the Civil Court has jurisdiction to entertain the suit ?” If any of the party wants to lead evidence, said party can be permitted to lead evidence on the question of jurisdiction. After giving appropriate : 5 : 7409-11-wp=.sxw hearing, learned Civil Judge, Senior Division shall pass order on the aforesaid issue. It is clarified that this Court has not expressed any view on the merits of question of jurisdiction. (ii) It is specifically required to be mentioned that the present respondent nos. 9 and 10 had taken up the stand of the jurisdiction in their affidavit in reply however, it appears that the said stand was not pressed or if pressed, it was not considered by the learned Civil Judge, Senior Division and that is how, order below Exh.5 has been passed. Now that an order below Exh.5 has already been passed, it would be proper that the said order would continue against the concerned persons and it is only after the question of jurisdiction is decided, the learned Civil Judge, Senior Division shall depending upon the order which he passes on the aforesaid issue, he will be able to modify the order dated 25th July, 2011 passed below Exh.5. Learned Civil Judge, Senior Division, Baramati shall hear the question of jurisdiction as expeditiously as possible and in any event on or before 15th November, 2011. (iii) There shall be no order as to costs. (R.Y.GANOO, J.)