1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.3387 OF 2009 Deepa Prakash Khaire & Ors. .. Petitioners Versus Disha Institute .. Respondent Mr.Jaydeep Deo for the petitioners. Mr.Chirag Shah i/by M/s.H.N.Associates for the respondent. CORAM : A.S.OKA, J. DATE : 12 th August 2009. P.C.: . Heard learned counsel appearing for the petitioners and the learned counsel appearing for the respondent. The respondent is the original plaintiff and the petitioners are the defendants. The case made out by the respondent is that the respondent is running an orphanage in the suit premises. The suit filed by the respondent is simplicitor for injunction restraining the petitioners from interfering with the possession of the respondent. An application for grant of temporary injunction was made by the respondent. The application was contested by the petitioners by raising various defences. The trial Court 2 granted injunction restraining the petitioners from dispossessing the respondent without taking recourse to due process of law. The said order has been confirmed in an appeal. 2. By this writ petition under Article 227 of the Constitution of India, the petitioners have challenged the aforesaid orders. The submission of the learned counsel appearing for the petitioners is that the respondent has no title and at highest it can be said that the respondent is in permissive possession of the suit premises. The second submission is that the suit has been filed without obtaining permission of the Charity Commissioner as required by section 50 by the Bombay Public Trust Act, 1950. He submitted that issue of jurisdiction was raised but the same has not been decided on the ground that there is no application made under section 9A of the Code of Civil Procedure, 1908 filed by the petitioners. The submission is that the Courts below have not performed their obligation under section 9A of the said Code. 3. I have considered the submissions. It is true 3 that if objection to jurisdiction of the Court is raised at the time of hearing of an application for temporary injunction, the Court is under obligation to decide the objection to the jurisdiction. In the present case the objection raised by the petitioners is an objection to the maintainability of the suit. The objection is not as regards the jurisdiction of the trial Court to entertain the suit. Hence, section 9A of the said Code has no application. 4. The Courts below have concurrently found that the respondents are in possession of the suit premises and therefore discretionary order of temporary injunction has been passed. The result of the impugned order is that the petitioners cannot dispossess the respondents without taking recourse to the due process of law. 5. The learned counsel appearing for the petitioners makes a grievance that the plaint ought to have been rejected in exercise of powers under Rule 11 of Order VII of the Code of Civil Procedure, 1908. The impugned orders and the confirmation thereof by this Court will not 4 preclude the petitioners from making an application praying for rejection of the plaint. If such application is made, the trial Court is bound to decide the same in accordance with law and all contentions in that behalf are expressly kept open. Even the contentions on the issue of maintainability of the suit will have to be kept expressly open. 6. Subject to what is observed above, writ petition is rejected. It is made clear that the suit will be decided on its own merits without being influenced by the tentative findings recorded by the Courts below. (A.S.OKA,J)