1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION FIRST APPEAL NO.590 OF 2009 WITH CIVIL APPLICATION NO.5620 OF 2000 Bagh-E-Firdaus Trust and Ors. ...Appellants. v. Bhiwandi Nizampura Municipal Council ...Respondents. Mr.A.A.Kumbhakoni, Sr.Counsel i/by Rajesh S. Datar, advs. For the Appellants. Mr. R.S.Apte, Sr.Counsel i/by Mr. N.R.Bubna, advs. For the Respondents. CORAM : J.H. BHATIA, J. DATED : 15th October , 2009 P.C. 1 This appeal is preferred to challenge dismissal of the suit filed by the appellants. 2 Heard the learned counsel for the Parties. 3 Plaintiffs/appellants had obtained permission for making certain construction on 23.6.1999. However, on 24.12.1999 Chief Officer of the defendant/respondent addressed a letter and asked the plaintiffs/appellants to stop the construction. That order was challenged by the plaintiffs/appellants by filing Special Civil Suit No.16 of 2000. In the said suit, the plaintiffs also filed an application for temporary injunction. Defendant/respondent moved an application under Section 2 9-A to frame a preliminary issue of jurisdiction of the Civil Court and to decide the same before any interim relief could be granted. However, the trial Court framed as many as seven preliminary issues numbered as (a) to (g). Preliminary issue (b) was only issue pertaining to jurisdiction. The trial Court gave findings on the issues against the plaintiffs and dismissed the suit by the impugned order dated 10.8.2000. Dismissal of the suit is challenged by the plaintiffs in the present appeal. 4 Section 9-A of the Code of Civil Procedure is applicable to the State of Maharashtra reads as follows: “9-A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issued to be decided by 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 a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit. (2)Notwithstanding anything contained in sub- section (1), at the hearing of any such application, 3 the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction.”- Maharashtra Act (65 of 1977) (w.e.f.19-12-1977)” In view of the provisions of Section 9-A, only a issue of jurisdiction could be framed as preliminary issue. The trial Court while holding that he has no jurisdiction to entertain the suit, he did not refer to any provisions of law under which the jurisdiction of the Civil Court was excluded. It dealt with the facts and the remaining issues and on the basis of that it held that the Civil Court had no jurisdiction to entertain the suit challenging the letter dated 24.12.1999 issued by the Chief Officer of Municipal Council. In fact, the other issues and the facts on the basis of which those issues could be decided were totally irrelevant for the purpose of deciding issue of jurisdiction. While deciding the preliminary issue of jurisdiction under Section 9-A, the trial Court was expected to decide only that issue of jurisdiction on the basis of claim of the plaintiffs and the provisions of law, which would exclude the jurisdiction of the Civil Court and nothing more. He could decide the remaining contested points and go to the facts of the case only if he would come to conclusion that he had jurisdiction. If he had no jurisdiction to entertain the suit, he also did not have jurisdiction to 4 entertain remaining issues and decide the same. The learned counsel for the respondents could not point out any provisions of law under which the jurisdiction of the Civil Court was excluded when the order passed by the Chief Officer of the Municipal Council to stop the construction was challenged particularly when said order does not refer to any provisions of law under which that order was passed. In view of this, it must be held that trial Court was wrong in holding that Civil Court had no jurisdiction to entertain the suit. In view of this, the impugned order is liable to be set aside. 5 For the aforesaid reasons, appeal is allowed. The impugned order is hereby set aside and the Special Civil Suit No.16 of 2000 is hereby remanded back to the Civil Judge Senior Division, Thane for hearing and disposal of suit as per law. This Court has not expressed any opinion on the other issues, which were treated as preliminary issues. The trial Court shall hear the parties afresh on all the issues and decide the same on merits. 6 Parties shall appear before the trial Court on 19th November, 2009. 7 Status-quo shall continue till the application for temporary injunction filed by the plaintiffs is decided by the trial Court after hearing 5 the parties. 8 As the appeal itself is disposed off, Civil Application No. 5620 of 2000 for injunction does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)