( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 936 OF 2009 Syed Imam Bande Ali PETITIONER VERSUS Pandharinath Sauderam Nawle and others RESPONDENTS ..... Mr. Y.M. Khan, advocate for the petitioner. Mr. A.N. Nagargoje, advocate for respondents No. 1 to 9. Mr. S.K. Shinde, advocate for respondent No. 11. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 12th January, 2010] PER COURT : 1. Heard counsel. 2. By this petition, the petitioner challenges order dated 28th August, 2008 rendered by learned Civil Judge (S.D.), Sangamner, on an application (Exh-36) in suit (R.C.S. No. 403/2007) filed by the respondent No.1. 3. The petitioner filed application challenging the maintainability of the suit on the ground that the ( 2 ) civil Court has no jurisdiction for the reason that the properties involved in the dispute are the wakf properties. Therefore, he objected the civil Court’s jurisdiction. The learned Civil Judge rejected application vide the impugned order. The application was to decide the issue of jurisdiction as a preliminary issue under section 9A of the Code of Civil Procedure. 4. As per Section 9A of the C.P. Code as per State (Maharashtra) Amendment, the jurisdiction issue is required to be treated as a preliminary issue. The relevant provision is as below : “Section 9A (Maharashtra Amendment) :- 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 of injunction, appointment of a receiver or otherwise, made in granting an interim relief, ( 3 ) whether by way of stay, in any suit, an objection to the jurisdiction of the Court to entertain such 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 hearing of the suit. (2) Notwithstanding anything contained in sub- s (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 expression “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” is required to be interpreted having regard to the intention of the Legislature. Section 9A seems to have been introduced with a view to avoid grant of interim ( 4 ) relief by the Court which does not have jurisdiction to entertain the suit. The issue has to be decided as a preliminary issue and, therefore, the finding will be a preliminary finding likewise the finding on the interim application. Obviously, the trial Court is required to give prima facie findings on such issue. The sequential placement of section 9A also needs to be considered. It is placed below section 9 which declares that Court shall try all the civil suits, “unless barred”. The conjint reading of Order-XIV Rules 1 and 2 alongwith Order-XX Rule-5 of the Civil Procedure Code will indicate that after the pleadings are completed, the issues are required to be framed and the Court is required to pronounce judgement on all issues. Obviously, though preliminary issue was raised while deciding the interim objection and the application filed by the petitioner, yet, such issue can be framed during the trial on basis of material placed by the petitioner. Mr. Khan for the petitioner states that he is ready and willing to place the material before the trial Court for the purpose of framing such issue and if such material is found adequate, the trial Court may frame a regular ( 5 ) issue under Order-XIV Rule-1 of the Civil Procedure Code. 5. The petition may be conveniently disposed of with direction to the trial Court to frame a regular issue and try it if the petitioner will place on record some material to infer that the suit properties are declared as the properties of the wakf. However, if the petitioner will not produce any such material, which will enable the Court to prima facie infer that the allegation is having some force, the trial Court may not frame such issue. The suit is old one and is pending before the trial Court since 2007. It is just and expedient to direct early disposal of the suit. 6. In the result, the petition is disposed of with direction to frame a regular issue if there is adequate material produced by the petitioner to infer that the averments regarding the suit properties being the properties of the wqkf for some prima facie force and such issue may be tried alongwith other issues involved in the matter. The suit shall be expedited for final ( 6 ) hearing and be disposed of within period of nine months as far as possible. The petition is disposed of in terms of above directions. No costs. 7. In view of disposal of the writ petition, civil application No. 13575/2009 does not survive and hence, stands disposed of accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/wp936-09