kbp 1 4141-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4141 OF 2009 Surya Pharmaceutical Limited ..Petitioner Vs. Degussa AG ..Respondent ....... Mr.S.R.Nargolkar, for petitioner. Mr.A.S.Khandeparkar i/b.Mr.Kedar Wagle, for respondent. ....... CORAM : A.S.OKA, J.. DATE : 23 rd SEPTEMBER, 2009. P.C. : 1] Heard learned counsel for the petitioner and learned counsel for the respondent. 2] The Petitioner is the defendant in a summary suit filed by the respondent by invoking Rule 2 Order 37 of the Code of Civil Procedure, 1908. An application was made by the petitioner at exhibit 16 purporting to be an application under Rule 11 of Order VII of the Code of Civil Procedure, 1908 praying for rejection of the plaint on the ground that the court in which the suit has been instituted has no territorial jurisdiction to entertain and try the suit. The trial court framed a preliminary issue of jurisdiction by invoking Section 9-A of the Code of Civil kbp 2 4141-09.sxw Procedure. The Trial Court, by the impugned order, decided the issue of jurisdiction in favour of the respondent-plaintiff. 2] The learned counsel for the petitioner submitted that though the prayer made in the application made by the petitioner at exhibit 16 is for rejection of the plaint, if the issue of the jurisdiction is answered in favour of the petitioner, the plaint will have to be returned to the respondent for presentation to the court having jurisdiction. It is submitted that no evidence was adduced by the respondent in support of their case that the trial court has jurisdiction to entertain and try the suit. He submitted that on plain reading of the plaint, the trial court had no jurisdiction to entertain the suit. 3] I have considered the submissions. It is not in dispute that there is no application for any interim relief as contemplated by section 9-A of the said Code pending in the suit. This aspect was not brought to the notice of this Court when earlier writ petition was decided. There is a pending application made by the petitioner for grant of leave to defend the suit. Unless the issue of jurisdiction is raised by way of written statement, there was no occasion for the trial court to frame an issue regarding jurisdiction. As stated by the learned counsel for the petitioner, the application at exhibit 16 was not an application for rejection of the plaint, but it was in effect an application for return of the plaint. Even if the application exhibit 16 would have been allowed, the court could not have rejected the plaint and the court would have returned the plaint for presentation kbp 3 4141-09.sxw before the proper court. 4] The parties did not adduce evidence for deciding the preliminary issue. It is true that the Trial Court has not happily dealt with the issue. No purpose will be served by keeping this petition pending. The only reasonable course open is to set aside the impugned order and direct the trial Court to decide the issue of jurisdiction at an appropriate stage. 5] Learned counsel for the petitioner submitted that in application for leave to defend, the petitioner has taken a ground of lack of jurisdiction. The said ground will have to be obviously considered by the trial court in accordance with law when the said court considers the application for grant of leave to defend. Hence, I pass the following order:- (a) Subject to what is observed above, the impugned order is quashed and set aside and the application at exhibit 16 stands disposed of. (b) The issue of territorial jurisdiction of the trial court is expressly kept open. It shall be considered and decided by the trial court at an appropriate stage in accordance with law. (c) All contentions of the petitioner in the application for leave to defend including the contention based on defence of lack of jurisdiction are expressly kept open. (d) The trial court will proceed to decide the application for leave to defend filed by the petitioner in accordance with law. (e) Hearing of the application for leave to defend is expedited. (f) Writ Petition is partly allowed in the above terms with no kbp 4 4141-09.sxw order as to the costs. ( A.S.OKA, J. )