Chandka 1 APP-225-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 225 OF 2010 IN NOTICE OF MOTION NO. 152 OF 2006 ALONGWITH NOTICE OF MOTION NO. 4053 OF 2005 ALONG WITH CHAMBER SUMMONS NO. 277 OF 2008 ALONG WITH NOTICE OF MOTION NO. 598 OF 2008 ALONG WITH NOTICE OF MOTION NO. 3969 OF 2008 IN SUIT NO. 3466 OF 2005 Ewart Investments Limited ..Appellants versus V. H. Holdings Pvt. Ltd. & Ors. ..Respondents Mr. Janak Dwarkadas, Sr. Advocate with Mr. Sharan Jagtiani and Mr. Shailesh Shukla i/b. AZB & Partners for Appellant. Mr. Snehal Shah with Mr. Vikram Shinde i/b. Vigil Juris for Respondent Nos. 1 to 3, 6 and 11. Mr. S. Rustomjee i/b. Federal & Rashmikant for Respondent No. 4. Mr. Ashutosh Kumbhakoni with Mr. Mayur Khandeparkar i/b. Kanga & Co. for Respondent No. 5 and 23 to 27. CORAM : DR. D. Y. CHANDRACHUD & ANOOP V. MOHTA, JJ. 31 January 2011. P.C. : The challenge in this Appeal is to an Order of a learned Single Judge dated 13 January 2010 by which the Defendants have been permitted to lead Chandka 2 APP-225-10 evidence in support of the contention that this Court has no jurisdiction under Section 33 of the Maharashtra Rent Control Act and Section 41 of the Bombay Presidency Small Causes Court Act and/or Chapter VIII of the Maharashtra Rent Control Act 1999 to entertain and try the suit. 2. The Appellants are the Plaintiffs in a suit instituted in this Court interalia for a declaration that the tenancy and licence purportedly created in respect of a residential flat under diverse agreements are illegal, null and void. The Appellants also seek declaration that a leave and licence agreement entered into between the First Defendant and Thirteenth Defendant is sham, bogus and fraudulent. Two Motions were taken out on behalf of the Fifth Defendant and on behalf of Defendant Nos. 1, 2, 3 and 11 for framing an issue of jurisdiction as a preliminary issue under Section 9A of the Code of Civil Procedure 1908 as amended in relation to the State of Maharashtra. On 23 January 2006 the following issue was framed as a preliminary issue: “Whether this Court has jurisdiction to entertain and try the suit in view of Section 33 of the Maharashtra Rent Control Act and Section 41 of the Bombay Presidency Small Causes Court Act and/or Chapter VIII of the Maharashtra Rent Control Act, 1999?” By the impugned order of the learned Single Judge the Defendants have Chandka 3 APP-225-10 been permitted to lead evidence on the preliminary issue. 3. On behalf of the Appellants it has been submitted that their case proceeds on the basis that the purported creation of a tenancy and licence is bogus and fraudulent and that as a matter of fact no relationship of landlord and tenant does exist between the parties. It is urged that the question as to whether this Court has jurisdiction can be determined only on the basis of the averments contained in the Plaint. The question of jurisdiction cannot be determined by the plea which is sought to be taken by the Defendants. Reliance was placed on the judgment of the Supreme Court in Raizada Topandas & Anr. vs. M/s. Gorakhram Gokalchand1. 4. On the other hand it was urged on behalf of the contesting Respondents that (i) the issue of jurisdiction has been framed as a preliminary issue under Section 9A of the Code of Civil Procedure Code, 1908; (ii) this issue has to be agitated upon and decided finally; (iii) in view of the judgment of a Division Bench of this Court in Meher Singh vs. Deepak Sawhny & Anr,2 the issue has to be decided upon furnishing to the parties an opportunity of leading evidence; (iv) the judgment of the Supreme Court in Raizada Topandas case did not deal with the provisions 1 AIR 1964 Supreme Court 1348 2 1998(3) Mh.L.J. 940 Chandka 4 APP-225-10 of Section 9A; and (v) in any event the Appeal under Clause 15 of the Letters Patent is not maintainable since all that the learned Single Judge has directed is to grant an opportunity to the parties to lead evidence. 5. Section 9A was introduced into the provisions of the Code of Civil Procedure 1908 by Amendment Act 65 of 1977 of the State Legislature. Section 9A reads as follows :- “9-A. 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 granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such a 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- section (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 provisions of Section 9A were construed by a Division Bench of this Court in Meher Singh vs. Deepak Sawhny (supra). Chief Justice M. B. Chandka 5 APP-225-10 Shah (as his Lordship then was) while delivering the judgment of the Division Bench noted that Section 9A amounts a departure from the provisions of Order XIV Rule 2. When a preliminary issue of jurisdiction has to be decided, that must be on the basis of an adjudication arrived after the parties have an opportunity to lead evidence. The Division Bench observed thus :- “Section 9A is a departure from the procedure established for deciding the preliminary issue as prescribed under Order XIV, Rule 2 of Civil Procedure Code. On many occasions, it is not always proper to pass an order of hearing the preliminary issue with regard to maintainability of a suit at the time of final hearing of the suit. If such issue is decided at an earlier stage, rights of the parties can be crystallised. As stated earlier, section 9A is a departure from the procedure prescribed under Order XIV, Rule 2 of the Code of Civil Procedure for achieving that object. For determination of the preliminary issue, which may be mixed question of law and facts, the parties are required to lead evidence. Without permitting the parties to lead evidence the issue of jurisdiction cannot be finally determined. If it was to be decided only for prima facie purpose for granting interim relief, then there was no necessity of adding Section 9A in the Civil Procedure Code. Secondly, on the basis of prima facie determination without proper adjudication, in our view, suit cannot be disposed of. The Plaintiff cannot be non-suited on the basis of the averments made in the plaint or in the Written Statement. If the issue is a pure question of law, then it may be decided without recording evidence, but if it is a mixed question of law and fact, then parties should be permitted to lead evidence on the facts of the case. Question of jurisdiction, even if it is a mixed question of law and fact, it is required to be decided first. For deciding the said Chandka 6 APP-225-10 issue, the parties are entitled to lead evidence, oral as well as documentary, as that issue is required to be tried and adjudicated finally by the Court. The determination of the said issue is not only for the limited purpose of granting interim relief or vacating interim relief. It is true that this procedure requires piecemeal determination of the suit, but that cannot be avoided because of the mandate of section 9A.” Having regard to the law laid down by the Division Bench, it cannot be held that the learned Single Judge was in error in permitting the Defendants to lead evidence. The issue of jurisdiction under Section 9A is not a tentative or prima facie determination. The issue has to be decided finally and after adjudication by the learned trial Judge. The decision on a preliminary issue under Section 9A therefore does not stand on the same footing as an application under Order VII Rule 11(d). Order VII Rule 11(d) for instance requires the rejection of the plaint where a suit appears from the statement in the plaint to be barred by any law. That is not the case in a situation where Section 9A is attracted. In the context specifically of Section 9A the Division Bench has after considering the Maharashtra Amendment held that parties should be given an opportunity to lead evidence when a preliminary issue raises a mixed issue of law and fact. Evidently the decision in Raizada Topandas was much prior to the Amendment that was brought in 1977 by insertion of Section 9A. The issue of jurisdiction in the present case does not raise a mixed question of law and fact. Chandka 7 APP-225-10 6. For these reasons, we are of the view that the order of the learned Single Judge does not suffer from any error. The Appeal is accordingly dismissed. (Dr. D. Y. Chandrachud, J.) (Anoop V. Mohta, J.)