1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.240 OF 2009 Srikant Venkatesh Kamath. ..Appellant. Vs. Vimlakant V. Kamath and anr. ..Respondents Mr. M.S. Mhambrey for the Appellant. Ms. Mukta Gabse for the Respondents 1 and 2. CORAM : R.S. MOHITE, J. DATE : 2nd Sept.2009 PC : 1. Heard both sides. Admit. By consent, matter heard finally. 2. This is an appeal filed by the original plaintiff impugning an order dated 20.12.2008 passed by the City Civil Court in Notice of Motion filed by the plaintiff in his suit bearing S. C. Suit No.2274 of 2008. It is seen from the record that in the said notice of motion on behalf of the defendants reply was filed raising issue of lack of jurisdiction on various grounds. One of the ground 2 which was raised was that Small Causes Court would have jurisdiction to try the suit in view of the full bench judgment of this court in the case of Prabhudas Damodar Kotecha and anr. Vs. Manoharbala J. Damodar and ors. reported in 2007(5) B.C.R.-1. While delivering the judgment on the notice of motion, City Civil Court has framed an issue relating to jurisdiction and has answered the said issue in Paragraph -34 of the judgment itself. In my view, the course followed by the trial court is not proper. The jurisdiction issue can not be framed in the judgment given for the purpose of disposing of the notice of motion. The issue is required to be framed in the main suit and till the same is framed and decided, notice of motion is required to be kept pending. There is a serious lacuna in the procedure which has been followed and in my view, such a lacuna should be corrected otherwise such procedure is likely to be followed in the other matters in the city civil court. Second issue pertaining to the merits of the case 3 has been dealt with in the impugned judgment and order and the trial court itself has observed that it involves an important question of law as to whether judgment of this court in the case of Conrad Dias Vs. Joseph Dias carves out any exception to the definition of the term licensee as defined under Section 52 of the Indian Easements Act. For the moment, I do not wish to express any opinion in this aspect of the matter because procedure followed in this matter is not correct. In the circumstances, impugned order passed in the present case is set aside and the matter is remanded back for framing a preliminary issue in the suit. On such preliminary issue is framed, the parties will be at liberty to lead evidence if they so desire on the preliminary issue. If the plaint is returned on the issue being decided, it will not be necessary to decide the notice of motion at all. 2. Advocate appearing for the original defendant 4 states that she was not aware of the stay granted to the impugned order returning the plaint and in such circumstances, she could not file her written statement in time and this resulted in her client being barred from filing the written statement. It appears that an application has been made for setting aside that order which has been passed by the city civil court. I have no doubt that matter will be considered on its own merits and proper order will be passed taking into consideration the aforesaid facts. Appeal is accordingly, disposed off in the aforesaid terms. ( R.S. MOHITE, J.)