6. cra 384-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 384 OF 2010 1. Smt. Yamuna Parasram Autade, ] Age 62 Years, Occ - Agriculture, ] 2. Shri. Ashok Parasram Autade, ] Age 43 Years, Occ - Agriculture, ] 3. Shri. Vithal Parasram Autade, ] Age 41 Years, Occ - Agriculture, ] 4. Shri. Govind Parasram Autade, ] Age 39 Years, Occ - Agriculture, ] All residing at :- Autade Wadi, ] Post :- Urali Devachi, Tal :- Haveli, ] Dist. Pune. ] 5. Mrs. Mandabai Baban Kale, ] Age 45 Years, Occ :- Household, ] Residing at :- Gujarwadi Katraj, ] Dist. Pune. ] Applicants [ Org. Defts 1 to 5 ] Versus 1. Smt. Babubai Sitaram Autade, ] Age 62 Years, Occ :- Household, ] 2. Shri. Sanjay Sitaram Autade, ] Age 43 Years, Occ :- Household, ] 1 6. cra 384-10.doc 3. Shri. Dada Sitaram Autade, ] Age 37 Years, Occ :- Household, ] 4. Shri. Raju Sitaram Autade, ] Age 39 Years, Occ :- Household, ] All residing at :- Autade Wadi, ] Post :- Urali Devachi, Tal :- Haveli, ] Dist. Pune. ] 5. Mrs. Sunita Vishnu Tapkir, ] Age 41 Years, Occ - Household, ] Residing at :- Charoli, Tal :- Haveli, ] Dist. Pune. ] Respondents [Org. Plff Nos. 1 to 5] AND 6. Shri. Vasant Nanu Autade, ] Age 70 Years, Occ :- Agriculture, ] Residing at :- Satavwadi, Tal :- Haveli, ] Dist. Pune. ] 7. Shri. Bajirao Nanu Autade, ] Age 68 Years, Occ :- Agriculture, ] Residing at :- Sadguru Society, ] Survey No. 207, Bhekarai Nagar, ] Fursungi, Opp :- IBM, Tal :- Haveli, ] Dist. Pune. ] 8. Shri. Ratan Nanu Autade, ] Age 68 Years, Occ :- Agriculture, ] Residing at :- Holkarwadi, Tal :- Haveli, ] Dist. Pune. ] 9. Mrs. Rahibai Kaluram Holkar, ] Age 74 Years, Occ :- Household, ] Residing at :- Holkarwadi, ] 2 6. cra 384-10.doc Tal. Haveli, Dist. Pune. ] Respondents [ Org Defendant Nos. 6 to 9 ] Mr. A.V. Anturkar, Sr. Counsel i/b Mr. S.B. Deshmukh for the Applicants Mr. Vilas B. Tapkir for Respondent Nos. 1 to 5 CORAM : D.G. KARNIK, J. DATE : 10th JUNE, 2011. ORAL JUDGMENT: 1. Rule, returnable forthwith. Mr. Tapkir waives service for respondent nos. 1 to 5. Respondent nos. 6 to 9 are the co- defendants of revision applicants and are formal parties; hence service of Rule on respondent nos. 6 to 9 is dispensed with. 2. Heard. 3. Respondent Nos. 1 to 5 filed a suit against the revision applicants and respondent nos. 6 to 9 for setting aside alienation and partition. In the suit, they made an application for interim injunction restraining revision applicants from transferring the suit property to a third party. Before the hearing of the application for interim injunction, the revision applicants made an application purporting to be an application under Section 9-A of the Code of Civil Procedure contending that the suit was barred by limitation and that an issue 3 6. cra 384-10.doc regarding limitation be framed and decided as preliminary issue before hearing of the application for interim injunction. 4. The trial Court dismissed the application holding interalia that issue of limitation was not an issue relating to the jurisdiction of the Court and therefore, it could not be framed and tried as a preliminary issue before hearing the application for injunction under Section 9-A of the Code of Civil Procedure. That order is impugned in this revision application. 5. In my view, the matter is squarely covered by a decision of Division Bench of this Court in Royal Palms (India) Pvt Ltd & Ors Vs Bharat Shantilal Shah & Ors, 2009(2) Bom.C.R. 622. In that case, relying upon the earlier decision of another Division Bench of this Court in Smith Kline Beechan Cons Vs Hindustan Lever, 2002(Supp.) Bom.C.R. 674 (O.S.) : 2003 Vol. (105) 2 Bom.L.R. 547, the Division Bench observed at Para 21 of its decision: ".....It is clear from the law laid down by the Division Bench in its aforesaid judgment that when an objection to the jurisdiction of the Court to entertain the suits as the suits are barred by the law of limitation is raised, at the hearing of notices of motion wherein interim order is claimed, the Court is obliged by provisions of section 9-A of C.P.C. to frame 4 6. cra 384-10.doc preliminary issue as to the ground raised to the jurisdiction of the Court to entertain the suits and proceed to decide that preliminary issue and it is only on decision of the preliminary issue, that the notices of motion can be taken up for final decision." 6. The decision of the trial Court is contrary to the decision of the Division Bench which has held that if at the hearing of an application for any interim relief, an application is made by the defendant under Section 9-A of the Code of Civil Procedure contending that the Court has no jurisdiction to entertain and try the suit as the same is barred by limitation, the issue regarding limitation is required to be framed and decided as a preliminary issue. 7. For these reasons, the impugned order is set aside and the trial Court is directed to frame an issue regarding limitation and decide it as a preliminary issue before proceeding with the hearing of the application for interim relief. Needless, however, to say that in the meanwhile the Court may, if it thinks fit, pass an ad-interim order in accordance with Section 9(2) of the Code of Civil Procedure. [ D.G. KARNIK, J ] 5 6. cra 384-10.doc 6