1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.220 OF 2010 Golden Rock Co-operative Hsg. Society Ltd. ...Appellant. v. Sharan Ramchandani ...Respondent. Mr. R.G.SIngh, adv. For the Appellant. Ms. Rubai Taneja a/w Ms.Shama Taneja, advs. For the Respondent. CORAM : J.H. BHATIA, J. DATED : MAY 3, 2010 P.C. 1 With consent of the learned counsel for the parties, matter is taken up immediately for final hearing and disposal. Plaintiffs/appellants filed suit against the respondents for certain relief to which they are entitled under the Maharashtra Ownership Flats Act, 1963. Respondent filed an application Ex.6 under Section 9A of the C.P.C. as applicable to the Maharashtra challenging the jurisdiction of the City Civil Court. After hearing the parties, the learned trial Court held that civil Court had no jurisdiction to entertain the matter and rejected the plaint. That order is challenged in the present appeal. Section 9A reads as follows: “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 2 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 preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed off by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.” From the clear and unambiguous language of Section 9-A, it is clear that application to decide question of jurisdiction of the Court as its preliminary issue under Section 9-A is tenable at the initial stage only if there is an application for some interim relief. Admittedly, in the present case, there was no application by the plaintiff for any interim relief nor any interim relief was already granted which the defendant would seek to be vacated. Therefore, as there was no application for any interim relief, Section 9-A could not have been invoked. Order 14 Rule 1 of the C.P.C. provides for framing of issues. Order 14 Rule 2 of the C.P.C. provides that notwithstanding that a case may be disposed off on a 3 preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. Sub-rule 2 provides that where issues both of law and on fact arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed off on an issue of law only, it may try that issue first if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined. It has to borne in mind that stage of framing issues comes only after the written statement have been filed. 2 In the present case, written statement was never filed and only an application under Section 9-A was filed taking exception to the jurisdiction of the Court. In view of the language of Section 9-A, such application was not tenable as no application for interim relief was filed by any of the parties. In view of this, it is clear that the trial Court committed error in framing preliminary issue even before filing of the written statement and then determining it. The learned trial Court committed another mistake in the operative part of the order. If the Civil Court does not have the jurisdiction to entertain the suit , it may return the plaint to the parties for filing the same before the Court having 4 jurisdiction as provided under Order 7 rule 10 of the C.P.C. In the present case, the learned trial Court judge rejected the plaint. Rejection of the plaint is provided under Order 7 Rule 11 in the specific circumstances. 3 For the aforesaid reasons, impugned order is hereby set aside and the defendant/respondent shall file their written statement wherein they may take all the defence including challenge to the jurisdiction of the Civil Court. The trial Court shall proceed with the matter as per law after the written statement has been filed. Parties shall appear before the trial Court on 10th June, 2010. (J.H. BHATIA,J.)