1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.798 OF 2010 Grasim Industries Limited Petitioner versus The Sirdar Carbonic Gas Co. Ltd. and another Respondents Ms.Dumita Lewis i/by M/s. Thakordas & Madvavkar for petitioner. CORAM : A.S.OKA, J. DATE : 21st April 2010 PC : 1. Notice for final disposal was issued by this Court on 5th March 2010. The advocate on record for the petitioner has filed an affidavit of service stating that the private notice has been duly served to the first respondent in terms of order dated 5th March 2010 for final disposal. None appears for the first respondent. Name of the second respondent is deleted. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 17th April 2009. By the said order, the application made by the petitioner for seeking a direction to decide the issue of jurisdiction as a preliminary issue has been ordered to be filed. 2. The first respondent filed a suit against the petitioner. Issues were settled after written statement was filed by the first respondent. The first 2 issue framed by the Trial Court on 22nd August 2005 was of the territorial jurisdiction of the Trial Court to entertain and try the suit. It appears that an application was made by the first defendant at Exhibit-11 for deciding the issue of jurisdiction as a preliminary issue. An order was passed on the said application on 13th September 2005 directing that the first issue regarding jurisdiction shall be tried as a preliminary issue. The parties were directed to adduce evidence on the said issue without touching the merits of other issues involved in the suit. 3. It appears that another application was made by the petitioner on 7th August 2006 seeking a direction that the issue regarding jurisdiction be framed as a preliminary issue. It appears that the first respondent- plaintiff filed an application before the Trial Court pointing out that the learned Single Judge of this Court has held that section 9-A of the Code of Civil Procedure, 1908 stands repealed on account of subsequent amendment to the said Code brought into force with effect from 1.7.2002. the said order notes that a reference was made for reconsideration of the said view to the Larger Bench. The prayer in the said application was not granted and by order dated 13th August 2006, the application was disposed of without granting any relief. 4. The learned counsel appearing for the petitioner pointed out that the earlier order passed by the Trial Court of directing that the issue of jurisdiction shall be heard as a preliminary issue is valid and subsisting. The effect of the impugned order is that the issue of jurisdiction will not be 3 heard as a preliminary issue and all issues will be tried together. 5. As the order earlier passed by the Trial Court directing that the issue of jurisdiction shall be heard as a preliminary issue is still subsisting, the Trial Court will have to decide the said issue as a preliminary issue. The issue is regarding territorial jurisdiction of the Trial Court. If the said issue is answered against the first respondent-plaintiff, the plaint will have to be returned for presentation to appropriate Court. Therefore, the earlier order passed below application at Exhibit-11 ought to have been implemented by the learned Trial Judge. 6. Hence, the writ petition is disposed of by passing following order :- A) The impugned order is modified and the Trial Court shall proceed to decide the issue of jurisdiction as a preliminary issue as directed by the said Court by order dated 13th September 2005 which is passed below application at Exhibit-11; B) The writ petition is allowed in the above terms; C) All contentions of the parties on merits are kept open. (A.S.OKA, J.)