1 AO 406/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 406 OF 2011 The Administrator of Specified Undertaking of Unit Trust & Anr. .. Appellants V/s Zuber Ibrahim & Ors. .. Respondents Mr. Anil Anturkar with Mr. Vineet Naik and Ms. Jyotsana Khandalkar i/b Vigil Juris for the appellants. Mr. Y.S. Jahagirdar, Senior Advocate with Mr. M.S. Karnik and Mr.S.R. Nargolkar for respondent nos.1 to 14. Mr.P.G. Lad for respondent no.15. Mr. H.S. Rajeshirke for respondent no.16. CORAM : D.G. KARNIK, J. DATE : 5TH AUGUST 2011 P.C. : 1. Heard learned counsel for the appearing parties. 2. Respondent nos.1 to 14 are the original plaintiffs. Respondent no.15 is the original defendant no.1. Respondent no.16 is the original defendant no.4. The appellants are the original defendant nos.2 and 3. 3. In view of the order that is proposed to be passed, it is not necessary to refer to all the facts. Suffice it to say that in a suit 2 AO 406/2011 filed by respondent nos.1 to 14, an application for interim injunction was made by them. The appellants appeared in the suit and opposed the application for interim injunction. They also contended that the City Civil Court in which the suit was filed had no jurisdiction to entertain and try the suit and the suit was barred by sections 173 and 177 of the Maharashtra Housing and Area Development Act, 1976. The appellants also made an application under section 9A of the Code of Civil Procedure (for short "the Code") as applicable in the State of Maharashtra, praying that an issue regarding jurisdiction of the Court be framed and tried as a preliminary issue. It is the grievance of the appellant that instead of framing the preliminary issue regarding jurisdiction of the Court, as was required under section 9A of the Code, the trial Court proceeded to hear the application for interim injunction and by the impugned order allowed the same. 4. It has been held by a Division Bench of this Court that the provisions of Order 9A of the Code are mandatory. When at the hearing of any application for interim relief filed by the plaintiff the defendant objects to the jurisdiction of the Court, the Court is obliged to frame a preliminary issue regarding its jurisdiction and decide the same before granting any interim relief. 3 AO 406/2011 However, sub-section (2) of section 9A of the Code empowers a Court to grant ad-interim relief till the hearing and final decision on the issue of jurisdiction. In view of the provisions of section 9A of the Code, which are mandatory, in my view, the trial Court erred in hearing the application for interim injunction before framing and deciding the preliminary issue regarding jurisdiction. 5. In view of the position of law mentioned above, the counsel for the appearing parties agreed before me that the impugned order which has been passed by the Court may be treated as an ad-interim order under section 9A(2) of the Code and a direction be issued to the trial Court to frame and decide the issue regarding jurisdiction of the Court as a preliminary issue. Accordingly by consent of the parties, the following order is passed: ORDER (i) The impugned order shall be treated as an ad-interim order passed under section 9A(2) of the Code of Civil Procedure. In the meanwhile, the Court shall frame an issue regarding jurisdiction as raised by the appellants in their application under section 9A of the Code and shall decide the same. 4 AO 406/2011 (ii) The impugned order dated 23rd March 2011 has been partly stayed by this Court by ad-interim order dated 1st April 2011. Therefore, the ad-interim order passed by the trial Court as modified by the ad-interim order of this Court dated 1st April 2011 shall apply and be binding on the parties till the issue regarding jurisdiction is framed and decided by the trial Court. (iii) In the event the trial Court holds that it has no jurisdiction and dismisses the suit or returns the plaint, the order shall not be given effect to for a period of 2 weeks thereafter. (iv) In the event the trial Court holds that it has jurisdiction to entertain and try the suit, it shall hear the application for interim injunction on its own merits. (v) In the facts and circumstances of the case, the trial Court shall decide the issue regarding jurisdiction as expeditiously as possible. Appeal is disposed of in the aforesaid terms. (D.G. KARNIK, J.)