1 WP No.1615/11 mpt IN THE HIGH court OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1615 of 2011 Lavasa Corporation Ltd. ... Petitioner versus Datta Kondiba @ Kondu Kokare & ors. ... Respondents ... Mr.Gaurav Joshi with Mr.Rajesh Mirchandani i/b Abhay Nevagi for the petitioner. Mr.T.D.Deshmukh for respondent nos.1 to 4. CORAM : D.G. KARNIK, J DATED : 1st August 2011 P.C. 1. Rule returnable forthwith. Mr.Deshmukh waives service for respondent nos.1 to 4. 2. Learned counsel for the petitioner seeks leave to delete respondent nos.5 to 8 as they were co-defendants along with the petitioner. Since their presence is not necessary for the purpose of deciding the writ petition, the request is granted. 2 WP No.1615/11 3. Respondent nos.1 to 4 filed a suit against the petitioner and original respondent nos.5 to 8 (since deleted) for a declaration that the certain sale deeds mentioned in the prayer clause of the plaint were null and void and not binding on them and for an injunction restraining the petitioners from carrying out any development on the lands covered by the said sale deeds and for an injunction restraining the petitioner from alienating them. The respondent nos.1 to 4 also made an application in the suit for ad-interim injunction restraining the petitioner from selling, alienating or transferring the suit lands and for developing them. The petitioner appeared and contested the application. He also contended that the suit of the respondents was barred by limitation and prayed that an issue regarding jurisdiction of the court to entertain and try the suit as it was barred by limitation be framed and decided as a preliminary issue under section 9A of the Code of Civil Procedure (for short “the Code”) By an order dated 2 October 2010, the trial court rejected the application. That order is impugned in the present writ petition. 4. In the case of Foreshore Co-operative Housing Society Ltd. Vs. Praveen D. Desai, 2008(6) All MR 600, a Division Bench of this court has held that an issue regarding the limitation goes to the jurisdiction of the court and if an objection to jurisdiction of the court is raised by an application under section 9A of the Code on the ground that the suit is barred by limitation, the court is required to frame an issue regarding jurisdiction as a preliminary issue. The decision in the case of Foreshore Co-operative Housing Society Ltd (Supra) has been followed by this court in subsequent decisions 3 WP No.1615/11 including the one rendered in in Mukund Ltd. Vs. Mumbai International Airport, 2011 Vol.113 Bom.L.R.1164. It therefore cannot be disputed that an issue of limitation, if raised by filing an application under section 9A of the Code, the court is required to decide the same as a preliminary issue before proceeding with the hearing of the application for injunction or any other interim relief. 4. Learned counsel for the respondents however submitted that even if the issue regarding the relief is required to be framed, the court is not powerless to grant an ad-interim relief in view of the provisions of sub-section (2) of section 9A of the Code. In support, he referred and relied upon a decision of this court in Kranti Mohan Guruprasad Mehra and Anr Vs. Fatehchand Vasuram Behal, AIR 1982 Bom.263. Therein, a learned Single Judge of this court has held that where the application under section 9A of the Code is made for framing an issue regarding jurisdiction and to try it as preliminary issue, the court is entitled to grant an ad-interim relief pending the hearing of the issue of jurisdiction. In Tayabbhai M. Bagasarwalla & Anr. Vs. Hind Rubber Industries Pvt.Ltd. & Ors., (1997) 3 SCC 443, the Hon’ble Supreme court has also held that even when an objection to the jurisdiction of a court is raised by an application under section 9A of the Code, the court can grant ad- interim relief pending the hearing of the issue regarding jurisdiction. In paragraph no.28 of the decision, the Supreme court has observed: “The correct principle, therefore, is the one recognised and reiterated in Section 9-A – to wit, where an objection 4 WP No.1615/11 to jurisdiction of a civil court is raised to entertain a suit and to pass any interim orders therein, the court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the court from passing any interim orders. It can yet pass jurisdiction at the earliest possible time. The interim orders so passed are orders within jurisdiction when passed and effective till the court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly com to an end with the decision that this court had no jurisdiction. It is open to the court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situations, it would be its duty to modify such orders or make appropriate directions”. 6. The aforementioned quoted passage makes it clear that during the pendency of decision on an issue regarding jurisdiction of the court, the court is not powerless to pass ad-interim order which operates till the issue regarding jurisdiction and the interim application is decided. Therefore, the fear expressed by the respondents that the court would not consider the application for ad-interim relief has no merit. To dispel such a fear, however it is clarified that while framing an issue regarding jurisdiction of the court, the court would not be powerless to grant ad-interim relief if 5 WP No.1615/11 the facts and circumstances of the case so warrant. The trial court is accordingly directed to frame an issue regarding jurisdiction of the court and decide it as a preliminary issue. 7. It is clarified that during the pendency of decision on the issue of jurisdiction, the court is free to exercise the powers under section 9A (2) of the Code and grant ad-interim relief if the circumstances so warrant. Rule made absolute to the extent indicated above. (D.G.KARNIK, J)