IN THE HIGH COURTOF JUDICATURE AT BOMBAY CIVIL ORIGINAL JURISDICTION APPEAL NO. 268 OF 2003 IN NOTICE OF MOTION NO. 2788 OF 2000 IN SUIT NO. 3857 OF 2000 ALONGWITH NOTICE OFMOTIONL NO. 1320 OF 2003 IN NOTICE OF MOTION NO. 2788 OF 2000 IN SUIT NO. 3857 OF 2000 Nitin Gandhi & Ors. ...Appellants. [Orig.deft.Nos. 2 to 8] Versus St. Anthony"s Home Co-op.Socy. Ltd. & anr. ...Respondents. [Respdt.No.1-orig.pltf- Respdt.No.2-Orig.Deft. No.1.] Mr. J. Reis i/b. Y.M.Chaudhari and Kunal Cheema for respondent No.1. Mr. K.N.Gaikwad for BMC-Respondent No.2. Mr.H.J.Thakar Sr. Advocate with G.V.Bhagwat i/b. Divekar & Co. for the applicant. CORAM CORAM CORAM : D.K.Deshmukh and : D.K.Deshmukh and : D.K.Deshmukh and A.A.Sayed, A.A.Sayed, A.A.Sayed, JJ. JJ. JJ. DATE DATE DATE : January 15, 2009. : January 15, 2009. : January 15, 2009. P.C. 1. By this appeal, the appellants- defendant Nos. 2 to 8 in the suit have challenged the order, dated 4th February, 2003, passed in notice of motion no. 2788 of 2006, passed by the learned Single Judge of this Court. That notice of motion was taken out by the Plaintiff-Society for some interim orders. 2. It is a common ground that in the reply that was filed on behalf of the defendant Nos. 2 to 8 to the motion, it was claimed that this court does not have jurisdiction to entertain the suit in view of the provisions of Section 91 of the Maharashtra Co-operative Societies Act, 1960. Perusal of the order shows that the learned Single Judge though has noted that there is an objection raised to the jurisdiction of the Court to entertain the suit, has proceeded to make the interim order without framing the preliminary issue, as required by the provisions of Section 9A of the Code of Civil Procedure. Section 9A of the Code of Civil Procedure reads thus :- "9A.- Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue 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 haring of any such application, the Court may grant such interim relief as it may consider necessary, pending determination on it of the preliminary issue as to the jurisdiction". 3. The provisions of Section 9(A) have been considered by the Division of this Court in case of SMITH KLINE BEECHAN CONS VS. HINDUSTAN LEVER 2003 VOL (105): Bom.L.R. 547 2002(1): ALL.M.R. 1043 and FORESHORE CO-OPERATIVE HSG.SOC.LTD. VS. PRAVEEN D. DESAI, reported in 2008(6) ALL. M.R. 600 and it has been held that whenever any application for interim relief is filed in any Suit and in reply to that application an objection to the jurisdiction of the Court to entertain the suit is raised, it becomes the duty of the Court hearing the motion to frame a preliminary issue as to the jurisdiction of the court to entertain the suit and then proceed to determine that preliminary issue and, thereafter, take up the application for interim order for consideration depending on the decision on the preliminary issue. In the present case, the objection is raised to the jurisdiction of the court to entertain the suit in view of the provisions of Section 91 of the Maharashtra Co-operative societies Act. Section 91 of the Maharashtra Co-operative Societies Act ousts the jurisdiction of the Civil Court to entertain a Civil Suit between a Co-operative Society and its members relating to certain matters. There is a statutory bar to the jurisdiction of Civil Court to entertain controversy, which is a dispute within the meaning of Section 91 of the Act. Since there is a an objection raised in reply to the application made for interim relief to jurisdiction of the Court to entertain the suit because of the statutory bar it becomes the duty of the Court to frame preliminary issue. In the present case, we find that without framing the preliminary issue of jurisdiction, the motion has been decided and interim relief has been granted. In our opinion, therefore, as the order has been made in violation of the provisions of Section 9A of the CPC, the order will have to be set aside. In our opinion, therefore, the following order would meet the ends of justice. ORDER (1) Order dated 4th November, 1993, passed in Notice of Motion No. 2780 of 2000 is set aside. That motion is remanded back to the learned Single Judge for de novo consideration and decision in accordance with law. During the pendency of the motion, the following ad interim order shall operate. (a) There shall be an ad interim order in terms of prayer clause (a) of the motion during the pendency of the motion; (b) Defendant No.1- Corporation is restrained from sanctioning any further plan in respect of the plot, in Society’s lay out, without notice to the Society. (2) Consequently, the appeal is disposed of. No order as to costs. (3) The motion No. 1320 of 2003 stands disposed of accordingly. [D.K.Deshmukh, [D.K.Deshmukh, [D.K.Deshmukh, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]