Chandka 1 APP-96-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 96 OF 2011 IN NOTICE OF MOTION NO. 771 OF 2007 IN SUIT NO. 470 OF 2007 Associated Bombay Cinemas Private Limited ] A company duly registered and incorporated ] under the provisions of the Companies Act, 1956 ] having its registered office at 5, Arthur Bunder ] Road, Colaba, Mumbai 400005 ] ..Appellant versus Jamni S. Ramchandani ] of Mumbai, Indian Inhabitant, ] residing at Sheetal Mahal, ] Dinsha Vachha Road, Churchgate, ] Mumbai 400 005 ] ..Respondent Mr. Dinyar Madon, Sr. Advocate with Mr. Paritosh Jaiswal i/b. Kanga & Co. for Appellant. Mr. P. K. Samdhani, Sr. Advocate with Mr. Mayur Khadapkar i/b. Prakash & Co. for Respondent. CORAM : DR. D. Y. CHANDRACHUD & ANOOP V. MOHTA, JJ. 01 March 2011. ORAL JUDGMENT : Leave to amend in terms of the draft amendment tendered by the learned counsel appearing on behalf of the Appellant. Amendment to be carried out during the course of the day. Verification is dispensed with. Chandka 2 APP-96-11 2. Admit. On the request of the learned counsel and with their consent the Appeal is taken up for final disposal. 3. This Appeal arises out of an order of a learned Single Judge dated 5 October 2009 on a Motion for interim relief in a suit for specific performance of an agreement dated 14 August 1997. The agreement stipulated that the appellant as the landlord “hereby lets to the Tenant” (the Respondent) on a monthly tenancy, commencing from the date of possession and the grant of an Occupation Certificate, the premises of a shop admeasuring 451 sq. ft. in Strand Cinema Building on a monthly rent of Rs.625/-. The Appellant, as landlord agreed to obtain the Occupation Certificate from the Municipal Corporation and it was agreed that the tenancy would commence on the completion of the structure and the grant of an Occupation Certificate by the Corporation. This is so provided in clause (I) and clause (VIII) of the agreement. On 8 December 1998 the Appellant addressed a letter to the Respondent interalia stating that the Appellant had decided to dispose of each unit in the proposed building on ownership basis and intimated that the tenancy of the Respondent “therefore is required to be also changed accordingly”. The terms for the transfer of the unit on ownership basis to the Respondent were communicated. On 27 February 2004 the Appellant terminated the Chandka 3 APP-96-11 agreement dated 14 August 1997 on the ground of the alleged inaction of the Respondent. The Respondent instituted a suit for specific performance of the agreement on 4 February 2007. It is common ground that during the pendency of the Motion, there was an ad interim order dated 3 May 2007 passed by a Division Bench in Appeal. The order of status quo continued to hold the field until the learned Single Judge disposed of the Motion by an order dated 5 October 2009. By the impugned order the learned Single Judge made the Motion absolute in terms of prayer clause (b). As a result the Appellant has been restrained from assigning, selling, transferring, disposing of, alienating or parting with possession of or inducting any other person in the said premises. 4. On behalf of the Appellant it has been submitted that in the reply which was filed to the Notice of Motion, it was specifically submitted that the suit was beyond limitation. Moreover by the time that the learned Single Judge took up the Motion for hearing, the Appellant had filed a written statement in which the jurisdiction of this Court to entertain the suit was sought to be questioned on the ground that only the Small Causes Court would have jurisdiction. On the basis of the provisions of Section 9-A of the Code of Civil Procedure 1908, it has been urged that once at the hearing of the Motion, grounds questioning the jurisdiction of this Court Chandka 4 APP-96-11 both on the issue of limitation and on whether the suit would lie before the Small Causes Court were raised, the learned Single Judge ought not to have proceeded to dispose of the Motion without framing and deciding the issue of jurisdiction as a preliminary issue. 5. On the other hand it was urged on behalf of the Respondent that (i) no request was made before the learned Single Judge to raise the issue of jurisdiction as a preliminary issue under Section 9-A; (ii) no ground has been raised in the Memo of Appeal that despite the learned Single Judge being so requested, the Court had declined to raise a preliminary issue under Section 9-A. 6. Section 9-A provides as follows : “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 Chandka 5 APP-96-11 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 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.” Section 9-A is mandatory and of an imperative nature. Section 9-A begins with a non obstante provision. Where at the hearing of an application interalia for granting interim relief an objection to the jurisdiction of the Court to entertain a suit is taken by any of the parties to the suit the Court is under an obligation to determine the issue of jurisdiction as a preliminary issue before granting interim relief. The provisions of Section 9-A have been construed in a Judgment of a Division Bench of this Court presided over by Chief Justice M. B. Shah (as His Lordship then was) in Meher Singh vs. Deepak Sawhny1. While adverting to the statement of Objects and Reasons accompanying the Bill which was introduced in the State Legislature, the Division Bench noted that Section 9-A makes a departure from the provisions of Order XIV Rule 2 of the Code. The State Legislature had taken due note of the fact that the practice of granting injunctions without going into the question of jurisdiction, though raised had led to grave abuse. Hence a provision was inserted by which if the question 1 1999(1) Bom.C.R. 107 Chandka 6 APP-96-11 of jurisdiction is raised at the hearing of any application for granting interim relief, the Court must determine the question first. In Foreshore Cooperative Housing Society Ltd., Bombay vs. Praveen D. Desai & Ors.1, a Division Bench of this Court of which one of us (Mr. Justice Anoop V. Mohta) was a member has held that the question of limitation does raise an issue of jurisdiction within the meaning of Section 9-A. This view has been followed in a subsequent decision of a Division Bench of this Court in Royal Palms (India) Pvt. Ltd. & Ors. vs. Bharat Shantilal Shah & Ors.2 In Royal Palms, D. K. Deshmukh, J., speaking for the Division Bench also held that non compliance by a learned Single Judge of the provisions of Section 9-A will constitute a material irregularity which would vitiate the order. 7. Now from the record before the Court, it is clear that in the reply which was filed by the Appellant to the Notice of Motion on 18 November 2008, the defence that the suit is barred by limitation was raised in the following terms : “With reference to para 18, I do not admit that the cause of action arose on 27th February 2004 when the Defendant terminated the said agreement. I say that effectively the cause of action arose on 8th December 1998 when the Defendant wrote to the Plaintiff calling upon the Plaintiff to purchase the suit flat on ownership 1 2009(2) Mh.L.J. 28 2 2009(2) Bom.C.R. 622 Chandka 7 APP-96-11 basis on payment of Rs.11,27,500/-. Admittedly, the Plaintiff did not reply to the said letter dated 8th December 1998 or denied her liability to make any payment. The present suit is filed in February 2007 and is hopelessly time barred.” By the time that the Motion came up for final hearing before the learned Single Judge the Appellant had also filed a written statement in which the defence that this Court would have no jurisdiction and that it is the Small Causes Court which would have jurisdiction had also been raised in the following terms:- “It is submitted that this Hon’ble Court does not have jurisdiction to entertain dispute pertaining to the Suit agreement which has been styled as Tenancy Agreement. Therefore also the Suit is liable to be dismissed. The appropriate remedy of the Plaintiff is to approach the Court of Small Causes Court at Bombay.” Ex facie, a reading of the order of the learned Single Judge would indicate that in paragraph 4 of the judgment, the learned Single judge has recorded the submission that the suit was beyond limitation. In paragraph 5 of the judgment, the learned Single Judge observed that “It is difficult to accept this contention at this stage.” Once the plea of limitation was raised, which in terms of the decision of the Division Bench in Foreshore Cooperative Housing Society Ltd., (supra) raised an issue of jurisdiction, the obligation of the Court, in terms of Section 9-A was to frame a preliminary issue. By virtue of the provisions of Section 9-A the Court cannot adjourn the hearing Chandka 8 APP-96-11 of the issue to the hearing of the suit. The jurisdictional issue has to be determined before granting interim relief or setting aside the order of interim relief. The learned Single Judge having not done so, we are of the view that the impugned order is unsustainable and would have to be set aside. 8. As regards the contention of the Respondent that the learned Single Judge was not requested to frame a preliminary issue under Section 9-A, it will be sufficient to note that the question of limitation was raised by the Respondent in reply to the Motion and was argued before the learned Single Judge. Once a ground as to the jurisdiction of the Court is taken at the hearing of the Motion for interim relief it becomes mandatory and imperative for the Court to frame a preliminary issue. The learned Single Judge therefore, with respect, erred in coming to the conclusion that the contention could not be accepted “at this stage” and by not framing a preliminary issue. Since we are inclined to direct that the issue of limitation should be raised and decided as a preliminary issue we are of the view that ends of justice would also be met by directing that the question as to whether the suit would be barred by the provisions of Section 33 of the Maharashtra Rent Control Act, 1999 should also be framed as a preliminary issue. That would obviate a piecemeal determination of the issues of Chandka 9 APP-96-11 jurisdiction. In the circumstances, the following two issues are raised:- (i) Is the suit within limitation? and (ii) Is the jurisdiction of this Court barred by the provisions of Section 33 of the Maharashtra Rent Control Act, 1999? These two issues shall be decided as preliminary issues. The impugned order of the learned Single Judge is accordingly set aside. The ad interim order dated 3 May 2007 which was passed by the Division Bench in Appeal, during the pendency of the Motion directing the maintenance of status quo shall however continue to operate in terms of the provisions of Sub Section 2 of Section 9-A pending the determination of the preliminary issues and the Motion. The Appeal is accordingly disposed of in these terms. There shall be no order as to costs. (Dr. D. Y. Chandrachud, J.) (Anoop V. Mohta, J.)