*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2682/2008 IN NOTICE OF MOTION NO.3416/2006 IN SUIT NO.2806/2006 Rameshchandra Dharamdas and others. ..Plaintiffs -VERSUS- Mrs.Anjanaben Jivanlal Vyas. ..Defendant ............... Mr.Munir Merchant, Advocate for the Plaintiffs. Mr.Shailesh Shah a/w Ms.Nina Nadar i/b Divyakant Mehta and Associates, Advocates for the Defendant. ............... CORAM: A.P.DESHPANDE, J. Dated 26th August, 2009. PC:- 1 By the present Notice of Motion moved by the Defendant twofold reliefs are claimed (1) for condonation of delay of 49 days in taking out the present Notice of Motion and (2) to set aside the order dated 05.05.2008 passed in Notice of Motion No.3416/2006. 2 According to the learned counsel for the Applicant/ Defendant, it is submitted that an ex-parte order came to be passed on 05.05.2008 in absence of the counsel for the Defendant and thus, the same be set aside as the counsel for the Defendant was *2* prevented by sufficient cause in not appearing before the Court when the matter was listed. 3 Perusal of the order dated 05.05.2008 would itself reveal that the counsel for Defendant had remained absent on most of the occasions for no just cause. By an order dated 05.05.2008 this Court has appointed the Court Receiver with a view to fix an amount of royalty to be paid by the Defendant to the Plaintiffs as the Defendant is in occupation of the premises and has not paid any amount whatsoever. On the earlier date i.e. 28.04.2008 the Notice of Motion was heard and the counsel for Defendant had assured this Court that he would be taking instructions from the Defendant in regard to regular payment of royalty to the Plaintiffs as the Defendant is occupying the premises owned by the Plaintiffs. However, the counsel for Defendant chose not to appear on 05.05.2008. 4 According to the learned counsel for the Plaintiffs, the order which is termed as ex-parte order is not in fact an ex-parte order as adequate opportunity was made available to the Defendant before passing the order and this fact is revealed from the orders dated 28.04.2008 and 05.05.2008 and thus, there is no question of setting aside the order dated 05.05.2008. 5 Touching the merits of the matter, it is submitted that though the jurisdictional issue is raised by the Defendant, the Court Receiver came to be appointed without deciding the jurisdictional issue at the threshold. It is contended that unless and until the jurisdictional issue is decided the Court has no jurisdiction to grant interim relief. This submission touching the merit is devoid of any *3* substance. According to the Maharashtra amendment, Section 9(A) of the Civil Procedure Code makes it clear that pending consideration of a preliminary issue the Court has jurisdiction to pass an interim order. 6 In that view of the matter, there is no substance in the Notice of Motion and the same is dismissed. (A.P. Deshpande, J)