cra101.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 101 OF 2010 Cantonment Board (Chhawni) Aurangabad, through its Chief Executive Officer .. APPLICANT VERSUS 1 Shakeelabee w/o Ibrahim Baig age 37 years, occ. agriculture r/o Gut No. 1/6, Golewadi, tq. & Dist. Aurangabad. 2 Wakf Board, Aurangabad .. RESPONDENTS Mr. D.V. Soman, advocate for the applicant. Mr. A.D. Kasliwal, advocate for respondent no. 1. Mr. M.G. Mustafa, advocate for respondent no. 2. ===== CORAM : R.M. BORDE, J. DATE : 31 st MARCH, 2011. ORAL JUDGMENT : 1 Heard. cra101.10 2 2 Rule. Rule made returnable forthwith. With the consent of the parties, the civil revision application is taken up for final disposal at admission stage. 3 Applicant / original defendant in Suit no. 99/2008 has approached this court raising challenge to the order passed on 7-10-2009 below exh. 5. Respondent / original plaintiff presented a suit claiming a decree of injunction restraining the defendant from causing obstruction and interference in possession of the plaintiff in respect of enjoyment of the property bearing gat no. 1/6 admeasuring 6 Acres 15 Gunthas situate at Golewadi, Tq. & Dist. Aurangabad. In the pending suit, plaintiff presented application at exh. 5 seeking an order of temporary injunction. Original defendant / petitioner herein presented written statement as well as separate written argument opposing the application presented by plaintiff at exh. 5. In the written statement presented by defendant, objection in respect of entertainability of the suit is specifically raised by the defendant. It is the contention of the defendant that the property in question is owned by the Central Government and managed by the Cantonment Board. It is also contended that the provisions of Wakf Act are not applicable so far as the property in question is concerned. Other objections are also raised in respect of nature of the property being Wakf property as well as locus of the cra101.10 3 plaintiff to institute the suit. Preliminary objection raised by the defendant in respect of jurisdiction of the tribunal has not been dealt with in the order passed by the tribunal below exh. 5. Learned counsel for the petitioner / original defendant has invited my attention to provisions of section 9-A of the Code of Civil Procedure and contended that it was obligatory on the part of the tribunal to decide the objection in respect of jurisdiction of the court before considering the application seeking injunction. It is further contended that the tribunal was not expected to deal with the application for grant of interim relief without dealing with the objection raised by the defendant in respect of jurisdiction of the tribunal as well as without considering the issue as regards nature of the property. Learned counsel for the respondent / original plaintiff, while controverting the contentions raised by the defendant contends that though specific issue in that regard is raised, the objection raised has been dealt with by the tribunal which is evident from reading paragraph no. 8 of the order passed by the tribunal. 4 It is to be noted that section 9-A of the Code of Civil Procedure casts an obligation on the court to determine the issue of jurisdiction before proceeding to decide the application seeking interim order. Section 9-A of the Code of Civil Procedure reads thus : cra101.10 4 9-A Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue : (1) Notwithstanding anything contained in this code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit. (2) Notwithstanding anything contained in sub- section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction.” . Thus, when the objection as regards jurisdiction of the tribunal is raised, it is obligatory on the part of the tribunal to consider the objection and answer the issue of jurisdiction before proceeding to decide the application presented by plaintiff seeking interim relief. The court while determining the issue of jurisdiction is not precluded from granting interim cra101.10 5 relief, if the court considers it necessary, pending determination of the preliminary issue as regards jurisdiction. In the instant matter, the tribunal has considered the application presented by plaintiff and clamped restraint order against defendant in view of order passed on 7-10-2009. The order of injunction granted in favour of plaintiff is operative since more than 1½ years. In this view of the matter, while directing the tribunal to re-consider the application, I deem it appropriate to continue the order of injunction passed by the tribunal until determination of issue of jurisdiction by the tribunal. Defendant, if finds it necessary, may present separate application requiring the court to consider the issue of jurisdiction as contemplated by section 9-A of the Code of Civil Procedure. On consideration of such an application, if any, or on consideration of the objections noted in the written statement / say presented by the defendant in that regard, and after hearing the parties concerned, the tribunal shall proceed to determine the issue of jurisdiction as a preliminary issue before deciding the application for grant of interim relief. Defendant / petitioner herein shall have liberty to tender separate application within four weeks from today. On consideration of the application, the tribunal shall proceed to decide the issue and pass appropriate order in respect of jurisdiction of the tribunal to deal with the suit, within three months from today. The order of injunction passed below cra101.10 6 exh. 5 shall remain operative until determination of the issue of jurisdiction. The tribunal shall thereafter proceed to decide as to whether the order of injunction shall be continued till disposal of the suit or not. With these directions, the civil revision application stands disposed of. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE ) JUDGE dyb