1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6595 OF 2009 Sanjay RK Kandhari ...Petitioner vs. V.R.Developers & Ors. ...Respondents Ms A.Castelleio i/b Ramson Dias for the petitioner Mr.S.U.Dhakephalkar for respondent no.1 CORAM :A.S.OKA,J. DATE : SEPTEMBER 10, 2009 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the first respondent. The petitioner is the defendant no.7a in the suit. The first respondent is the original plaintiff. A suit is filed by the first respondent for specific performance of the agreement for sale of the immoveable property. An application for injunction was taken out by the first respondent. The present petitioner raised an objection to the territorial jurisdiction of the trial court to entertain and try the suit. In view of the mandate of section 9A of the Code of Civil Procedure,1908 the learned trial Judge passed an order dated 15 th October 2009 directing that the preliminary issue as regards territorial jurisdiction be framed and tried as a preliminary issue. The challenge in this writ petition under Article 227 of the Constitution is to the orders 2 dated 2 nd February 2009 and 9 th July 2009 passed by the learned trial Judge on applications made by the petitioner. The order dated 2 nd February 2009 has been passed on the application made by the petitioner at Exh. 113. In the said application a prayer was made that the first defendant be summoned to depose before the court as he was a party to the suit agreement. The second impugned order has been passed by the trial court on the application at Exh.149 made by the petitioner. By the said application the petitioner prayed that the second defendant be summoned to depose before the trial court on the said preliminary issue. In the impugned order dated 2 nd February 2009, the trial court has noted that the petitioner has filed his affidavit in lieu of evidence and he has been cross examined on 17 th November 2008. By the order dated 2 nd February 2009, the learned trial Judge came to the conclusion that the first defendant cannot be forced to depose before the court. In the second order dated 9 th July 2009 which is impugned in this petition, the learned Judge held that the defendant no.7a to 7d have failed to establish the necessity of examining the second respondent for purpose of deciding the issue of territorial jurisdiction. 2 The learned counsel for the petitioner submitted that evidence of both the 1 st and 2 nd defendants is necessary for determining the issue of territorial 3 jurisdiction. The learned trial Judge noted that the 1 st defendant filed a reply to Exh.113 in which the defendant no.1 has not stated that the 1 st defendant does not desire to enter the witness box. Her submission is that even the second defendant has not declined to enter the witness box. She, therefore, submitted that the court ought to have issued witness summons to the said defendants as their evidence is very relevant. 3 I have considered the submissions. In view of a decision of the Division Bench of this Court, parties of the suit will be entitled to lead oral or documentary evidence for purposes of hearing of preliminary issue as regards jurisdiction. Therefore, the concerned court is required to follow the procedure laid down under Order XVIII of the Code of Civil Procedure,1908 in so far as examination of the parties and witnesses are concerned. It is the choice of the parties to lead the evidence if they so desire. If the 1 st and 2 nd defendants desire to adduce evidence, nobody can prevent them from doing so. No other party to the suit can force the said defendants to lead the evidence if they do not desire to lead evidence. The petitioner who is co-defendant cannot apply for issuing witness summons to the 1 st and 2 nd defendants. Therefore, the court below was right in holding that at the instance of the petitioner who is defendant No.7a, witness summons cannot be ordered to be 4 issued to the 1 st and 2 nd defendants. 4 Hence, no interference is called for with the impugned order in this writ petition under Article 227 of the Constitution of India. It is made clear that the issue of jurisdiction is kept open and nothing stated in this order shall be taken as any expression of opinion on the merits of the preliminary issue. 5 Subject to what is observed above, writ petition is rejected. Judge