- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.501 OF 2004 IN NOTICE OF MOTION NO.1813 OF 2004 IN SUIT NO.1738 OF 2004 ... Anekant Enterprises & ors. ...Appellants v/s. Rajendra Manilal Jain ...Respondent ... Mr.H.Toor i/b Chitnis & Co. for the Appellants. Mr.P.M.Shah for the Respondent. ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 5TH FEBRUARY, 2009 - 2 - P.C.: 1. By this appeal the Appellant challenges the order dated 26th July, 2004 passed in Notice of Motion No.1813 of 2004 by the learned single Judge of this Court. 2. That Notice of Motion was taken out in Suit No.1738 of 2004. Suit No.1738 of 2004 has been filed by one Mr.Rajendra Manilal Jain claiming following main reliefs: (a) this Hon’ble Court may be pleased to declare that the Plaintiff is having right, title and interest in respect of the Suit bungalow being Bungalow No.C/6/E, Survey Nos.38/4/2-1 and 38/4/2-2, admeasuring about 1275 sq.ft. (built-up) situated at Anekant Residency, Belat Gavhan, Deolali Cantonment, Deolali, Dist.Nashik 422 003, pursuant to the Agreement dated 25.05.1998, executed between the Plaintiff and Defendant Nos.2 and 3 on behalf of Defendant No.1 and that the said Agreement dated 25.05.1998, is legal, valid and binding on Defendant Nos. 1 to 5. (b) this Hon’ble Court be pleased to pass decree directing the Defendant No.1 through its partners Defendant Nos.2 to 5 to specifically perform the Agreement dated 25.05.1998, by executing Sale Deed in respect of the Suit bungalow being Bungalow No.C/6/E, Survey Nos.38/4/2-1 and 38/4/2-2, admeasuring - 3 - about 1275 sq.ft. (built-up) situated at Anekant Residency, Belat Gavhan, Deolali Cantonment, Deolali, Dist.Nashik 422 003 and to further decree and order Defendant Nos. 1 to 5 to handover vacant and peaceful possession of the Suit bungalow to the Plaintiff. 3. It is, thus, clear that the Plaintiff in the suit is claiming a decree of declaration that his agreement for purchasing the property is valid and is claiming a decree of specific performance of that agreement and he is also seeking a decree for possession of that property. In this suit, the above referred Notice of Motion was taken out. The Notice of Motion has been granted by the learned single Judge in terms of prayer clause (a). Therefore, it becomes necessary for us to see what prayer clause (a) is. Prayer clause (a) reads as under:- (a) pending the hearing and final disposal of this Suit, this Hon’ble Court may be pleased to order and direct the Court Receiver, High Court, Bombay-Defendant No.6, who is appointed in the said Suit No.4863 of 1999, to handover the vacant and peaceful possession of the Suit bungalow being Bungalow No.C/6/E, Survey Nos.38/4/2-1 and 38/4/2-2, admeasuring about 1275 sq.ft. (built-up) situated at Anekant Residency, Belat Gavhan, Deolali Cantonment, Deolali, Dist.Nashik 422 003, to the Plaintiff, and also to allow the Plaintiff to complete the incomplete work of the said Suit bungalow at the cost and expenses of the Plaintiff, by appointing the Plaintiff as the Agent of - 4 - Court Receiver, upon the terms and conditions as directed by this Hon’ble Court. 4. Affidavit in reply was filed in the Notice of Motion by the Defendants, who are Appellants. One of the objection raised was that the said suit was for delivery of possession of the land, in terms of the provisions of Clause 12 of the Letters Patent the suit will not lie in this court, as admittedly the land and the property which is the subject matter of the suit is situated outside the territories of the original jurisdiction of this Court. The learned single Judge decided the Notice of Motion by order dated 26th July, 2004. In view of the provisions of Section 9A of the Civil Procedure Code as an objection to the jurisdiction of the court to entertain the suit was raised, the learned single Judge ought to have framed a preliminary issue as to the jurisdiction of this court to entertain the suit, decided that preliminary issue and then proceeded to decide the Notice of Motion. But it appears that the learned single Judge did not frame any preliminary issue, did not decide it and proceeded to pass an order in terms of prayer clause (a). Even otherwise also we find that the learned single Judge has - 5 - decided the question of jurisdiction by taking prima facie view without referring to the provisions of Clause 12 of the Letters Patent. 5. In our opinion, the conclusion recorded by the learned single Judge on the aspect of jurisdiction is incapable of being sustained, principally because it has been recorded without even referring to the Clause 12 of the Letters Patent. In our opinion, therefore, following order would meet the ends of justice. O R D E R (i) The order impugned in the Appeal is set aside. Notice of Motion No.1813 of 2004 is remitted back to the learned single Judge for denovo consideration and decision in accordance with law. (ii) Appeal disposed of. No order as to costs. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)