pvr 1 a468-08 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.468 OF 2008 IN NOTICE OF MOTION NO.2927 OF 2007 IN SUIT NO.2330 OF 2001 Purshuttam Associates. ...Appellant vs. 1.Peter Pereira & Ors. ...Respondents --- Mr.A.Y.Bookwala, Sr.Advocate with Mr.Gaurav Joshi & Naushad Engineer i/b. RMG Law Associates, for Appellant. Mr.Paritosh Jaiswal i/b. Anup Khaitan & Co., for Respondents 1 & 2. Mr.N.G.Thakkar, Sr.Advocate with Ramesh Sawant i/b. Legal Associates, for Respondent no.3. --- CORAM: D.K.DESHMUKH ANOOP V.MOHTA, J. DATED: 26th April,2011 pvr 2 a468-08 P.C.: 1. By this appeal, the original plaintiff challenges the order dated 5.9.2008 passed in Notice of Motion no.2927 of 2007. By that order the learned Single Judge has dismissed the notice of motion taken out by the plaintiff. The plaintiff has filed the suit seeking a decree of specific performance of an agreement to transfer the immovable property. In that suit he had taken out notice of motion seeking appointment of receiver and temporary injunction restraining the defendants from dealing with the property and raising construction. One of the defences raised by the defendants was that the suit is barred by law of limitation. The learned Single Judge hearing the notice of motion found that the plaintiff has not made out a prima facie case and therefore, dismissed the notice of motion. The submission of the learned Counsel appearing for appellant is that the order has been made by the learned Single Judge in violation of the provisions of Section 9A of the Civil Procedure pvr 3 a468-08 Code. Section 9A of the C.P.C. reads as under:- 9-A. 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 pvr 4 a468-08 hearing of the suit. (2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction. The learned Counsel submits that Section 9A casts mandatory duty on the Court to frame an issue as to the jurisdiction of the Court to entertain the suit and try it as preliminary issue and depending on the decision of the Court on that issue, the Court should pass appropriate order in the notice of motion. The learned Counsel submits that the plea that the suit is barred by law of limitation was raised, the learned Single Judge has recorded a finding, without framing any issue that the suit has not filed within three years of the date fixed for performance of the agreement. The learned Counsel submits firstly that there is no clear finding recorded on the issue and pvr 5 a468-08 secondly the notice of motion has been disposed of in breach of the provisions of Section 9A of C.P.C. The learned Counsel relied on the judgments of the Division Bench of this Court in the case Foreshore Co-operative Housing Society Ltd. Vs. Praveen D.Desai & Ors., 2009(1) Bom.C.R. 757 and Royal Palms (India)Pvt.Ltd. & Ors. Vs. Bharat Shantilal Shah & Ors., 2009(2) Bom.C.R. 622. holding that compliance of the provisions of Section 9A of C.P.C. is mandatory and that the issue of limitation can be framed as preliminary issue under Section 9A of C.P.C. 2. We have heard the learned Counsel appearing for respondents. In view of the clear law laid down by this Court that compliance with the provisions of Section 9A of CPC is mandatory and when issue of limitation did arise, it was necessary for the learned Single Judge to frame the preliminary issue on the question of limitation and try that issue as preliminary issue and depending on the decision on that pvr 6 a468-08 preliminary issue, decide the notice of motion. In our opinion, therefore, the notice of motion will have to be remitted back to the learned Single Judge. 3. In this appeal, at the time of admitting the appeal, interim order was made by the Court in terms of prayer clause (c) of Notice of motion no.2662 of 2009. Prayer clause (c) of Notice of motion no.2662 of 2009 reads as under:- (c) that pending the hearing and final disposal of the Appeal, this Hon ble Court be pleased to restrain the Respondents and their respective servants, agents and/or any other person or persons claiming under any one of them by an order of temporary injunction from in any manner dealing with, disposing of, constructing, selling alienating, encumbering or creating any third party rights in respect of the suit property and/or the premises or parting with the possession of the premises to be constructed on the suit property pvr 7 a468-08 described at Exhibit-A to the Plaint or any part or portion thereof to the third party; That order, it appears, was challenged before the Supreme Court in Petition for Special Leave to appeal (Civil)no.13821 of 2009. That was decided by order dated 1.6.2009 by the Supreme Court. The order of the Supreme Court reads as under:- Heard learned Counsel for the parties. On the facts of the case we dispose of this petition with a direction that the petitioner may make construction in the disputed land but this will be at their own risk and subject to the decision of the appeal pending in the High Court. We request the High Court to dispose of the appeal expeditiously. The SLP is disposed of accordingly. In our opinion, in these circumstances, it will pvr 8 a468-08 be appropriate to direct that during the pendency of notice of motion before the learned Single Judge, interim order passed in this appeal as modified by the order of the Supreme Court quoted above, shall operate. However, the defendants shall be at liberty to apply to the learned Single Judge for modification of the interim order in case there is change in the circumstances. 4. In the result therefore, the appeal succeeds and is allowed. The order impugned in the appeal is set aside. Notice of motion no.2927 of 2007 is remitted back to the learned Single Judge. The learned Single Judge is requested to frame a preliminary issue on the point of limitation and try that issue as preliminary issue in terms of the provisions of Section 9A of CPC and depending on the decision of that issue makes further orders in the notice of motion. The preliminary issue to be tried would be Do the Defendants prove that the suit as framed and pvr 9 a468-08 filed is barred by law of limitation? 5. During the pendency of notice of motion, interim order in terms of prayer clause (c) of notice of motion no.2662 of 2009 filed in the appeal, as modified by the order of the Supreme Court quoted above, shall operate with liberty to the defendants to apply for modification of that order before the learned Single Judge, if there is any change in the circumstances. The learned Single Judge, considering that the notice of motion was taken out in the year 2008, is requested to hear and dispose of the notice of motion as expeditiously as possible. (D.K.DESHMUKH,J.) (ANOOP V.MOHTA,J.)