1 wp2375-11.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 2375 of 2011 Ravi G. Batheja ..Petitioner v/s. Rano Batheja ..Respondent Mr.S.D.Patil i/b. S.R.Saudagar for the petitioner . Mr.V.A.Deshmukh for the respondent. CORAM : R.Y.GANOO, J. DATED : 4th May, 2011 P.C. : 1. Rule. Rule made returnable forthwith. 2. Learned Counsel appearing on behalf of the respondent waives service of notice of admission. By consent taken up for hearing. 3. The respondent herein has filed petition for divorce, for the reasons more particularly stated in M.J.Petition No.2760 of 2008 in the Family Court at Bandra. The petitioner herein filed written statement and has disputed the prayers sought in the said petition. 2 wp2375-11.sxw 4. After filing the written statement the petitioner herein filed application or or about June 2009 praying that the question of maintainability of the petition along with jurisdiction of the court should be framed, or in the alternative the petition and other proceedings in Petition No.1-7 f 2008 be stayed till disposal of petition No.09 SL-BR-05627/ 2008 by Family Court of St. Louis County Missiouri, 21st Judicial Circuit at U.S.A. The learned Judge of the Family Court heard the respective parties and has passed order dated 12.10.2010. He has dismissed the said application at Exhibit 22. Being aggrieved by Order dated 12.10.2010 the petitioner husband has filed this petition. After having heard learned Counsels on both sides and after having noted that the petitioner has filed written statement, a proper course of action would have been to frame issues on the basis of pleadings which were before the learned Judge including the issue of jurisdiction and take up the issue of jurisdiction for decision first in accordance with the provisions of Order 14 of C.P.C. In my view, if this course would have been adopted it would have been convenient for the parties to understand whether the learned Judge of the Family Court had jurisdiction or 3 wp2375-11.sxw not. It appears that application at Exhibit 22 came to be filed by the petitioner resorting to the provisions of Section 9A of C.P.C. After having gone through the said application, I am inclined to observe that the said application was restricted to jurisdiction only and there was no other interim prayer made in the said application and therefore the provisions of Section 9A could not be attracted to the said application filed by the petitioner. 5. In view of the aforesaid discussion, I am inclined to set aside the order dated 12.10.2010 passed below Exhibit 22. The petitioner has set up the defence that the learned Judge of the Family Court has no jurisdiction as set out in paragraph 2 of the written statement. The learned Judge of the Family Court shall frame issues including the issue as regards jurisdiction and thereafter decide the question of jurisdiction first in accordance with the provisions of Order 14 of C.P.C. and pass an appropriate order. Since the Order dated 12.10.2010 is set aside, he shall offer denovo hearing to both the sides. 6. In view of the aforesaid discussion, following order is passed to 4 wp2375-11.sxw dispose of the petition. ORDER i) Order dated 12.10.2010 passed below Exhibit 22 by the learned Judge of the Family Court No.7, Bandra Mumbai is set aside. ii) The learned Judge of the Family Court is directed to frame issues on the basis of the text of the petition as well as written statement filed by the respondent and frame the issue as per Order 14 of C.P.C. The learned Judge shall also frame issue of jurisdiction and he shall decide the issue as regards jurisdiction first, if necessary, by giving opportunity to the parties to lead evidence on the question of jurisdiction. Depending upon the said decision further course shall be adopted iii) This Court has not expressed any views on the merits as regards the point of jurisdiction. There shall be no order as to costs. iv) Writ to go forthwith. [R.Y.GANOO, J.]