: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1269 OF 2009 ALONGWITH CIVIL APPLICATION NO.1589 OF 2009 Silver Beach Haven-1 Co-op. Housing Society Ltd. .. Appellants V/s. Ershad Salim Basha & Anr. .. Respondents Mr. Manoj S. Mhambrey for the Appellants. Mr. I.S.I. Menon for Respondent No.2. CORAM : SMT. NISHITA MHATRE, J. DATED : 24 TH FEBRUARY, 2010. P.C.: 1. The Appeal from Order is directed against the order dated 13th May, 2009, passed by the City Civil Court, Dindoshi, Borivali, Mumbai, in S.C. Suit No. 839 of 2009, by which the Court has adjourned the Notice of Motion filed by the appellants. The Notice of Motion was directed to be registered and the parties were further directed to maintain status-quo. The Notice of Motion has been filed by defendant No.2, i.e. the appellants herein, for framing a preliminary issue with respect to the jurisdiction of the City Civil Court. Several contentions were raised in the Notice of Motion by : 2 : the defendant No.2 indicating that the City Civil Court does not have jurisdiction to entertain the Suit. 2. According to the learned Advocate for the appellants, the City Civil Court ought to have, on considering the pleadings, framed the preliminary issue itself without waiting for defendant No.2 to file a Notice of Motion. He submits that although more than six months have elapsed since the Notice of Motion was filed, the preliminary issue has not been framed as yet by the Court and, therefore, there has been no hearing with respect to the preliminary issue. 3. It is no doubt true that a Notice of Motion need not be filed for framing a preliminary issue, once the parties point out to the Court that the Court does not have jurisdiction. The Court is, in fact, duty bound to frame a preliminary issue and to decide the same before proceeding with the Suit. In fact, the Division Bench of this Court in the case of Smithkline Beecham Consumer Healthcare GMBH : 3 : & Ors. vs. Hindustan Lever Limited & Anr., reported in 2003 Vol. 105 (2) Bom.L.R. 547, has held that the Court is enjoined with the duty to determine the issue as to jurisdiction as a preliminary issue, after the insertion of Section 9A of the Code of Civil Procedure. When at the hearing of any application for granting or setting aside the interim relief, an objection to the jurisdiction of the Court to entertain such a Suit is raised by any party to the Suit, it must be decided initially. Similarly, in the case of Arjun Dada Gadage vs. Mallappa Gurappa Chougule & Anr., reported in 2003 (4) Mh.L.J. 256, a learned Single Judge of this Court has held that the preliminary issue must be decided first before proceeding with any other matter. Further, a Division Bench of this Court in the case of Foreshore Co-operative Housing Society Limited vs. Praveen D. Desai & Ors., reported in 2009 (1) Bom.C.R. 757, has also held that when the issue of jurisdiction of a Court to entertain a lis is raised, the Court is duty bound to decide it’s jurisdiction and the maintainability of the Suit as a preliminary issue. : 4 : 4. In this view of the matter, the trial Court is directed to frame the preliminary issue and decide it as expeditiously as possible and in any case within a period of eight weeks from today. 5. The Appeal from Order is disposed of. 6. In view of the above, Civil Application No.1589 of 2009 pending in the Appeal from Order does not survive and the same is dismissed as infructuous.