1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1198 OF 2009 M/s.Shah Builders. ..Petitioner. V/s. Shri Kantilal Bhailal Gor & Ors. ..Respondents. Mr.I.M.Vohra i/b. Mr.Bipin Joshi for petitioner. Mr.K.D.Jha for Respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 9, 2009. DATE : FEBRUARY 9, 2009. DATE : FEBRUARY 9, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Jha waives notice for Respondents. 4. As short question is involved, Petition is taken up for hearing forthwith by consent. 5. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Bombay City Civil Court dated 30th September, 2008, whereby Notice of Motion taken 2 out by the Petitioners/Plaintiffs has been rejected. The Petitioners pray that the order dated 28th January, 2008 framing preliminary issue of jurisdiction of the court be set aside. 6. Twofold arguments have been advanced in this context. The first argument is that the matter was at the stage of filing of affidavit in lieu of examination in chief and at that stage, request was made by the defendants to frame preliminary issue of jurisdiction. Even if the issue of jurisdiction arose for consideration, the same could not have been proceeded as preliminary issue within the meaning of Section 9A of the CPC as the stage for considering that as preliminary issue was already over. Besides, it is argued that in the Written Statement no where it is stated that the City Civil Court has no jurisdiction, much less any reason as to why the Court has no jurisdiction is spelt out. If so, the question of framing issue of jurisdiction of the Court did not arise at all to consider it as preliminary issue. 7. According to the Respondents/Defendants in the Written Statement it is asserted that the partnership firm is not a registered firm and for 3 which reason the suit ought to be dismissed. That argument at best would raise an issue of maintainability of the suit and not one of jurisdiction of the Court. Accordingly, taking any view of the matter, the order dated 28th January, 2008 cannot be sustained. The same ought to have been set aside by the Trial Court and instead allowed the Notice of Motion moved by the Petitioner for that purpose. 8. Indeed, it will be open to the Trial Court to frame issue about maintainability of the suit in the context of the stand taken by the Respondents/defendants in the Written Statement. That issue however, will have to be considered alongwith other issues at the hearing of the suit and cannot proceed as preliminary issue unless all the facts relevant to decide that issue have been admitted by both the sides. 9. The above aspect be considered by the Trial Court at the appropriate stage and proceed in the matter in accordance with the law. 10. Accordingly, the impugned Judgment and Order is set aside, instead the Notice of Motion filed by 4 the Petitioners is made absolute with the above observations. 11. At this stage, Counsel for the Respondents submits that atleast hearing of the suit be expedited. That request be made to the Trial Court who in turn will consider appropriately. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)