1 wp 7680.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7680 OF 2011 Gajendra S/o Bapu Puri, Age : 61 Years, Occu. : Agril., R/o Tirth (Bk), Tq. Tuljapur, Dist. Osmanabad. .. Petitioner Versus Nagnath Devasthan Trust Tirth (Bk), Tq. Tuljapur, Through Chairman Sunanda W/o Tukaram Bhosale, Age : 35 Years, Occu. : Household, R/o Tirth (Bk), Tq. Tuljapur, Dist. Osmanabad. .. Respondent Shri N. N. Tungar, Advocate for the Petitioner. Smt. M. A. Kulkarni, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 04TH OCTOBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2 wp 7680.11 2. The present petitioner is the original defendant. After the pleadings were complete the Court framed the issues and thereafter the parties are adducing their evidence. Initially the present petitioner had filed an application U/Sec. 9-A of Code of Civil Procedure which was rejected upto this Court. When the matter had been to this Court, I had referred to the order passed by the Trial Court wherein the Trial Court had observed that it would be proper to decide the suit finally on merits and defendant has ample opportunity to raise law points at the time of final arguments. The application U/Sec. 9-A was rejected in view of the fact that the suit is fixed for evidence. 3. Shri Tungar, the learned counsel for the petitioner submits that the Court should have framed the issue of jurisdiction as this fact has been brought to the notice of the Court earlier by an application U/Sec. 9-A and subsequently by way of present application. 4. Mrs. Kulkarni, the learned counsel for the respondent submits that the issues can be framed only on the basis of pleadings. A fact affirmed by one party and denied by another would give rise to an issue. In the present case, the defendant has not raised a plea that this Court has no jurisdiction in the 3 wp 7680.11 written statement. In view of that the Trial Court was justified in rejecting the application for framing issue of jurisdiction. 5. If the Court has no jurisdiction and it is a case of inherent like of jurisdiction, a decree passed by a Court is nullity and an issue would also be relevant to assist the parties in adducing the evidence and advancing their arguments. 6. The petitioner had specifically filed an application U/Sec. 9-A raising the plea of jurisdiction in view of Sec. 80 of the Bombay Public Trust Act and bar engrafted under other provisions of the said Act. In such circumstances, there was no impediment for the Court to frame the issue. 7. In the light of the above the impugned order is quashed and set aside and application Exhibit 126 is allowed. The Court shall frame the issue of jurisdiction and try the same along with other issues. Rule is accordingly made absolute in above terms, however, with no order as to costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11