1 WP 9192.2011 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9192 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders ................................ CORAM : S.V.GANGAPURWALA, J. DATE : 30/11/2011. Mr. P.R.Katneshwarkar, Advocate for the petitioners. ............................. PER COURT : 1. Heard Mr. Katneshwarkar, the learned counsel for the petitioners. 2. The respondent/plaintiff has filed Suit for declaration that the construction made on the suit plot is illegal or in alternate to give the name of Shri Datta Prabhu to the said hall. The present petitioners appeared and filed Written Statement and resisted the claim. The Court thereafter framed the issues on 18/7/2009. Thereafter, the present petitioners vide application [ Exh. 26 ] requested to try the issue of jurisdiction as a preliminary issue. The trial Court rejected the said application. Aggrieved thereby, the present Writ Petition is 2 WP 9192.2011 filed. 3. The learned counsel for the petitioners submits that the issue of jurisdiction and maintainability go to the root of the case and as such the said issues are required to be decided as preliminary issues. If the said issues are decided in favour of the petitioners, then it would not be necessary to go on with the trial of the Suit. The learned counsel contends that even as per Order XIV Rule 2 of the Code of Civil Procedure [ For short, ‘ the Code ’ ], the said issue can be decided as preliminary issue. The learned counsel further contends that if the Court does not have the jurisdiction then as per Order VII Rule 10 of the Code, the Plaint has to be returned for filing in proper Court. The Court has already framed the issue of maintainability and jurisdiction. In such circumstances, there is no impediment to decide the said issues as preliminary issues. The construction has been made by the B & C department and the B & C department being the State, the Suit is not maintainable in the Court of the Civil Judge ( Jr.Division). 4. The Court has framed the Issues in July, 2009. The matter is ripe for trial. The scheme of Order XIV of the Code mandates that all issues are to be decided together. The only exception is the trial of the issues which can be decided on legal provisions. In such circumstances, the said issue can be 3 WP 9192.2011 decided as a preliminary issue. In the present case, B & C department is not the party to the Suit and no relief is claimed against the B & C department. It is for the defendants to prove whether the Suit is bad for non joinder of necessary parties. As the B & C department is not party to the Suit nor any authority of the Sate is party to the Suit, the Suit can lie before the Court of Civil Judge ( Jr. Division). More over, the issue of maintainability and jurisdiction can be decided along with all other issues. 5. The trial Court while passing the impugned order has not committed any error of jurisdiction. 6. In light of the above, the Writ Petition is dismissed. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 9192.2011