1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO. 315 OF 2006 APPEAL FROM ORDER NO. 315 OF 2006 APPEAL FROM ORDER NO. 315 OF 2006 IN NOTICE OF MOTIION NO. 1443 OF 2006 IN NOICE OF MOTION NO. 1406 OF 2006 IN S.C.SUIT NO. 1511 OF 2006 Mr. Nishant M.Mahimtura & Anr. ..Appellants (Org.Defendants) Versus Sukhshanti Co-op. Housing Society Ltd. ..Respondents (Org. Plaintiffs) Mr. Avdhoot Prabhu, Advocate, i/b. M/s. M.Dhruva & Co., Advocates for the appellants. Mr.G.R. Khinkhabwala,Advocate, a/w Ms.Bina Jariwala,Advocate, for the respondents CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. 2 DATE: 10th January,2008. DATE: 10th January,2008. DATE: 10th January,2008. P.C. P.C. P.C. 1. Heard learned Counsel for the parties. 2. The dispute is between the appellant/defendant and the respondent-plaintiff society and the defendant holds a flat in that society. According to the respondent-society, the appellant has made some encroachment on some other property in the same building for which the Plaintiff-society has filed the suit before the City Civil Court seeking certain reliefs against the defendant-appellant. A Notice of Motion was also filed. However, the defendant in the reply to the said Notice of Motion contended that the City Civil Court did not have jurisdiction as the dispute is between the Co-operative Society and its member and the jurisdiction lies with the Co-operative Court. He also prayed by the same reply that the question of jurisdiction be decided under Section 9A of C.P.C. 3. The learned trial Court passed the impugned order on the Notice of Motion and raised certain points 3 only in respect of the Notice of Motion but did not raise any question or issue of jurisdiction. 4. In the order passed by this Court on 22.6.006, it was observed that whether section 9A of the C.P.C. as applicable to the State of Maharashtra still remains on the statute after the Central Amendment Act of 2002 or not is to be decided by the larger Bench. It was also observed that if the larger Bench is to take the view that Section 9A of the Code is no more on the statute, the matter will have to proceed on its own merits, however, if contrary view is taken by the larger Bench, then obviously, the present order will have to be set aside having been passed in excess of jurisdiction, in view of the clear provision of Section 9A of the Code. The Division Bench of this Court to which the question was referred for opinion on Section 9A has, by the Judgment dated 29.11.2007 in Madhur vs. Aruna has clearly held that inspite of the Central Amendment Act, 2002, Sec.9A of the C.P.C. is still valid and remains on the statute as far as Maharashtra is concerned. In view of this, when the issue of jurisdiction is raised, that issue has to be decided before the application/Notice of Motion for interim relief is decided. In the present case, the trial Court did not decide the preliminary issue of jurisdiction, which is 4 vital, before taking up the Notice of Motion for hearing on merits. 5 In view of this, the Appeal is allowed. The impugned order is set aside. The trial Court is hereby directed to first frame the preliminary issue on the question of jurisdiction and decide the same after hearing the parties. The Notice of Motion may be taken up for hearing only if on the issue of jurisdiction the Court comes to the conclusion that Civil Court has jurisdiction and naturally if the Civil Court has no jurisdiction, the Notice of Motion cannot be heard by the Civil Court. The trial Court shall expedite the hearing on the preliminary issue and dispose of the same within six weeks. 6. Parties to maintain status-quo pending the decision on the issue of jurisdiction. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)