1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.962 OF 2010 Chairman, MICO Employees Co-op Credit Society Ltd. & Anr. ...Petitioners vs. Narayan Baburao Kate ...Respondent Mr.Vishal Tambat for the petitioners Mr.R.M.Haridas i/b Mr.P.N.Joshi for the respondent CORAM :A.S.OKA,J. DATE : APRIL 5, 2010 P.C.: 1 Heard the learned counsel for the parties. On 10 th February 2010, this Court issued a notice for final disposal at admission stage. 2 The petitioners in this writ petition under Article 227 of the Constitution of India are the defendants in the suit filed by the respondent. The suit is filed for challenging the action of removal of the respondent from the employment of the petitioners and for setting aside the said order. A money decree is also prayed for in the suit. 3 An application for temporary injunction has been made by the respondent which is admittedly pending. The petitioners made an application at Exhibit-16 under section 9-A of the Code of Civil Procedure,1908 raising an objection to the jurisdiction of the Civil Court to entertain and try the suit. Another application was made at Exhibit-17 purporting to be an application under Rule 11 of Order VII of the said Code for rejection of the plaint on the ground that notice under section 164 of the 2 Maharashtra Co-operative Societies Act,1960 was not served prior to institution of the suit. Both the applications have been rejected by the learned trial Judge. The orders passed below the said applications are subjected to challenge in this writ petition under Article 227 of the Constitution of India. 4 As far as application at Exhibit-16 is concerned, in view of pendency of the application for temporary injunction, mandate of section 9-A of the said Code requires the Court to frame a preliminary issue of jurisdiction. Therefore, the order passed below the said application is completely illegal. 5 As far as other application at Exhibit-17 is concerned, the prayer was made for framing a preliminary issue whether the suit was barred by any law . Though the application purports to be an application under Rule 11 of Order VII of the said Code, there was no prayer made for rejection of the plaint but the prayer was for framing a preliminary issue. From the impugned order, it appears that what was argued in support of the said application was that for want of notice under section 164 of the said Act of 1960, the suit was not maintainable. Even assuming that the said application was for rejection of the plaint, the said application has to be decided only on the basis of the averments made in the plaint and the defence of the defendants cannot be gone into. Therefore, there cannot be any fault found with the final order of rejecting the application passed by the trial Court. However, the issue regarding the effect of non- service of notice under section 164 of the said Act of 1960 will have to be kept open which will be decided by the trial Court at appropriate stage. 3 6 Hence, petition is disposed of by passing the following order : i) Impugned order dated 15 th September 2009 passed below application at Exhibit-16 is set aside. The trial Court shall frame the preliminary issue of jurisdiction in accordance with section 9-A of the Code of Civil Procedure,1908. ii)All contentions of the parties on the merits of the preliminary issue are kept open. iii)The order of rejection of the application at Exhibit-17 is confirmed. However, the issue regarding legal effect of the alleged failure to serve the notice under section 164 of the said Act of 1960 is kept open which can be agitated by the petitioners at later stage of the proceedings of the suit. iv)Writ petition is partly allowed in above terms with no order as to costs. JUDGE