jpc wp8068-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 8068 OF 2011 Deo Kalya Patil and others ... Petitioners Versus Shri Nagindas Shamjibhai Shah (Since deceased) Jayalaxmi Nagindas Saha (since deceased) Through their heirs and legal representatives: Ramesh Nagindas Shah and others ... Respondents Mr. Raghuraj S. Deshpande and Mrs. Veera Shin, for the Petitioners Mr. P. K. Dhakephalkar, Senior Counsel with Mr. Niranjan P. Shimpi for Respondent Nos. 1 to 6 Mr. G. S. Hegde i/by Mr. G.S. Hegde & Associates for Respondent No.7 Ms. Shamali Gadre i/by M/s Little & Co. for respondent no.8 CORAM: R. M. SAVANT, J. DATED : 16th November, 2011 P.C. : 1. Rule, made returnable forthwith. By consent, the petition is taken up for hearing. 2. The above petition takes exception to the order dated 3rd August, 2011 by which preliminary issue to the following effect came to be framed by the trial Court. jpc wp8068-11.sxw 2 "(1) Whether this court has jurisdiction to try and entertain the suit ?" 3. The litigation in question has a chequered history inasmuch as the earlier Petition filed by the Petitioners above named being Writ Petition No. 2311 of 2010 challenging the orders passed by the Revenue Authorities culminating with the orders passed by the Maharashtra Revenue Tribunal, holding that the predecessor of the Petitioners was not a protected tenant came to be withdrawn by the petitioners in the light of the Notification No. 88 (1) (b) of the Bombay Tenancy And Agricultural Lands Act dated 4th August, 1975 with a liberty to seek relief in the Civil Court. Thereafter the instant suit being Special Civil Suit No. 632 of 2010 came to be filed by the petitioners and the main substantive relief is as per prayer clause (b) which reads thus: ''(b) it be declared that the predecessor-n-title-Kalya padya Patil of the Plaintiffs was lawfully in possession and cultivating the suit lands on 1.4.1957 as tenant thereof and consequently had become the deemed purchaser thereof and the plaintiffs being the heirs of said Kalya Padya Patil are therefore entitled to the benefits conferred upon him by the provisions of B.T. & A.L. Act;" jpc wp8068-11.sxw 3 4. It is required to be noted that in the said suit, an application for temporary injunction came to be filed by the petitioners for certain interim reliefs including the reliefs in respect of allotment of land under 12.5% scheme of Respondent no.7 herein. The said interim relief application came to be allowed by the trial court, against which an Appeal From Order came to be filed by the respondents herein which has been admitted. However, the interim reliefs have been refused by this Court vide order dated 24th November, 2011 passed in the said Appeal. It is thereafter, whilst considering the draft issues which have been formulated by the parties for facilitating the framing of issues, but the trial court has framed the instant preliminary issue. The framing of the preliminary issue was objected to by the petitioners. However, the the trial Court, relying upon the two judgments of this Court in the case of Immigrants Ideal Producers Co-op. Society Ltd. Vs. Jahnara Moiz Dalal reported in 2004 (i) Mah. L.J. 910 and Minguel Francis D'costa Vs. Sultani Gulam Ali Karim, reported in 1999 (2) Mah. L.J. 473, reached the conclusion that such an issue could be framed. 5. As indicated above, framing of the preliminary has been assailed in the instant Petition. The said challenge is principally on the jpc wp8068-11.sxw 4 ground that such issue could not be framed having recourse to Section 9A of the Code of Civil Procedure after the application for interim injunction has been decided by the trial Court in favour of the petitioners. The learned counsel for the petitioner would contend that said preliminary issue may be directed to be tried with all other issues and findings be directed to be recorded on all the issues together. Per contra, it is submitted by the learned Senior Counsel Mr. Dhakephalkar, appearing for the respondent Nos. 1 to 6 that the reference to Section 9-A of the Code by the trial Court may be erroneous, since the trial Court is sufficiently seized with the discretion to frame a preliminary issue under Order XIV Rule 2 of Code of Civil Procedure, 1908 notwithstanding the fact that the application for temporary injunction has been disposed of. The learned senior counsel relied upon the judgement of this Court in the case of Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. Vs. Jagruti Industries & another, reported in 2008 (5) Bom. C.R. 284. Paragraph 36 of the said judgment, wherein answers to the questions referred to the Division Bench of this Court have been given, is material and is reproduced hereunder: "36. In view of the above discussion, we answer the question as follows: jpc wp8068-11.sxw 5 (i) An application for framing of issue relating to jurisdiction of the Court can be filed at any stage of the proceedings in the suit. The provisions of Section 9-A of the code are attracted only when the conditions stated in that provision are satisfied at the time when question are satisfied at the time when question of jurisdiction is raised before the Court. Once the stage contemplated under Section 9-A of the Code is over (i.e. the application for interim orders has been decided), then these provisions lose their mandatory character and significance. Where after the application for framing of an issue relating to jurisdiction and its determination in accordance with the law would be controlled by the provisions of Order 14, Rule 2 of the Code. (ii) However, if an application for grant of vacation of reliefs specified under section 9-A of the Code has already been decided by the Court of competent jurisdiction, in that event, the proceedings in the suit would be controlled by the provisions of Order 14 Rule 2 of the Code. The formation of opinion and exercise of discretion by the Court cannot be regulated by any strait-jacket formula and essentially it must be left in the discretion of the court, depending on the facts and circumstances of a given case. The Court will obviously exercise such jurisdiction applying the well accepted canons of civil jurisprudence. In other words and construed objectively, the provisions of section 9A are not mandatory and subject to what has been stated above it may not be necessary for the Court to decide the issue at the threshold. If the application for interim relief is pending, section 9-A of the Code will operate with all its rigour and irrespective of the stage of such application." 6. Having heard the learned counsel for the parties, in my view, no exception could be taken to the framing of the preliminary issue as framed by the trial Court considering the provisions of Order 14 Rule 2 jpc wp8068-11.sxw 6 of the Code. The said provision, as held by a catena of judgments of this Court, vests a discretion in the concerned Court to frame a preliminary issue considering the facts and circumstances of a case. 7. In the light of the facts as narrated above, the trial Court has suo moto deemed it fit to frame the preliminary issue as regards to its jurisdiction. In my view, the exercise of discretion by the trial Court, in the facts of the present case, cannot be faulted with, notwithstanding the fact that the trial Court has erroneously referred to Section 9A of the Code. In so far as the objection of the petitioners to the effect that the said preliminary issue could not have been framed in view of the fact that the application for temporary injunction has already been decided, answer to the same lies in the Division Bench Judgment of this Court in Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. case (supra) , I, therefore, do not find any error or any irregularity committed by the trial Court in framing the said preliminary issue. In that view of the matter, no case for interdiction is made out. 8. The writ petition is accordingly dismissed. Rule discharged. (R. M. SAVANT, J.)