1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1948 OF 2009 Ms. Excel Infotech Pvt. Ltd. & others .. PETITIONERS VERSUS Smt. Sarita Pawan Goenka .. RESPONDENT Mr. A.B. Kadethankar, Advocate for the petitioners. Mr. G.V. Wani, Advocate for respondent. ===== CORAM : R. M. BORDE, J. DATE : 16 th November, 2009 PER COURT : 1 Petitioners are raising exception to the order passed by the 3 rd Jt. Civil Judge, Sr.Dn., Jalgaon on 28-1-2009 rejecting application tendered by them in pending suit objecting jurisdiction of the court to deal with the matter. Petitioners are the original defendants. Respondent / original plaintiff instituted suit claiming recovery of Rs.5,00,000/- against the defendant. On consideration of the pleadings raised by the parties, trial court framed issues and prescribed the matter for recording of evidence. Plaintiff has filed affidavit and has examined one witness. Application came to be tendered 2 by defendants under section 9(a) of the Code of Civil Procedure requesting the court to try the issue in respect of territorial jurisdiction of the court as preliminary issue. The court found that the application cannot be entertained at that stage and as such rejected the same. 2 Learned counsel for the petitioners has invited my attention to clause no. 15 contained in the memorandum which reads thus : 15 Governing Laws : This agreement will be subject to jurisdiction of the Courts of Aurangabad, Maharashtra, India. . It is the contention of the petitioners that the jurisdiction to deal with the dispute will vest with Aurangabad and the court at Jalgaon shall have no jurisdiction. Contention raised by the petitioners has been controverted by respondent contending that the clause refers to Aurangabad as well as Maharashtra and India. According to respondent, therefore, the court at Jalgaon which is situate in Maharashtra shall have jurisdiction. In my view, objection raised will have to be considered by the trial court at the time of rendering decision in the suit. Application is also objected on the ground that section 9(A) of the Code of Civil Procedure is not attracted as recording of evidence has already commenced. 3 3 Learned counsel for the respondent placed reliance on judgment in the matter of Shraddha Associates vs. S.P.T. Co-operative Housing Society Ltd. reported in 2003(2) Mh.L.J. 219. The court has recorded in paragraph no. 21 of the judgment thus 21 The Fall out of the above discussion is that : i the obligation cast upon the Civil Court to frame the issue of jurisdiction as a preliminary issue under section 9A is only in cases where such an issue is raised while dealing with the application for grant of or vacating any interim relief, including the appointment of Commissioner, matters pertaining to stay and similar such interim applications and not otherwise; ii the jurisdiction of the Court to re-frame or re-cast issues in exercise of the powers under Rule 5 of Order XIV of the Civil Procedure Code is not subject to pre-hearing of the parties and consequent to such re-framing or re- casting or striking of the issues in exercise of those powers, the parties are not precluded from approaching the Court for further exercise of powers under the said Rule, either for re-framing of the issues or for recalling of the order passed earlier by the Court under the said Rule; iii the issue regarding bar of limitation can be disposed of as a preliminary issue under Order XIV, Rule 2(2) of the Civil Procedure Code only in cases where it can be disposed of as an issue of law and not otherwise. In cases where such an issue requires recording of evidence, it has to be disposed of along with the other issues except when the Court, in its opinion, thinks fit to postpone the settlement of the other issues till the disposal of the issue regarding jurisdiction or limitation. Undoubtedly, the Court in that regard has to exercise its discretion judiciously and considering the facts of each 4 case. iv The decision in Sudesh case was in the facts of that particular case wherein the point of limitation was raised on the basis of the pleadings in the plaint itself and being so, the ruling therein cannot be made applicable to the cases where the point of limitation is to be decided by allowing the parties to lead evidence on such issue. . Learned counsel for the petitioners places reliance on the judgment in the matter of Shreyan Industries vs. State of Uttar Pradesh and another reported in 2003(2) Bom.C.R. 636 and submits that the application can be considered under section 151 of the Code of Civil Procedure. 4 Clause 15 of the memorandum on which reliance is placed by petitioner / original defendant needs to be interpreted in view of the rival contentions raised by the parties. In exercise of jurisdiction under Article 227 of the Constitution of India, it would not be appropriate to cause interference at this stage. Writ petition therefore stands rejected summarily. ( R. M. BORDE, J.) dyb/office/wp1948.09.odt