1 App960.10 Kambli IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.960 OF 2010 IN NOTICE OF MOTION NO.3591 OF 2008 IN SUIT NO.2862 OF 2008 ... Abdul Sattar Haji Usman & Anr. ...Appellants v/s. The Archbishop of Bombay & ors. ...Respondents ... Mr.A.V.Anturkar i/b Mr.Amardev J. Uniyal for the Appellants. Mr.V.M.Vaghele for Respondent No.5. CORAM: D.K.Deshmukh & Anoop V. Mohta, JJ DATED: 5th April, 2011 P.C.: Admit. Heard finally by consent of parties. 2. The Appellants, who are the original Plaintiffs, by this appeal challenge the order dated 17-6-2010 passed by the learned single Judge in Notice of Motion No.3591 of 2008. 3. We have heard the learned Counsel for both sides. We find from the record that the Plaintiffs had filed Notice of Motion seeking interim reliefs. In the Civil Suit filed 2 App960.10 by the Plaintiffs one of the reliefs claimed is a decree of declaration that acquisition of the property under order dated 23-7-2004 is vitiated by fraud and for striking down the acquisition. It is common ground that the suit property has been acquired under the Maharashtra Slum Areas Act, 1971. In the affidavit-in-reply filed to the Notice of Motion on behalf of the Defendant No.5 in paragraph 16 an objection is raised to the jurisdiction of this court to entertain the suit as framed and filed in view of the provisions of Section 42 of the Maharashtra Slum Areas Act, 1971. Section 9A of the Civil Procedure Code casts a duty on a civil court to frame a preliminary issue as to jurisdiction of the court to entertain the suit, if at the hearing of any application for grant of interim relied it finds that in the reply filed by the Defendant an objection to the jurisdiction of the court to entertain the civil suit has been raised. In our opinion, therefore, the learned single Judge, in view of the objection raised to the jurisdiction of the court to entertain the suit, should not have proceeded to consider the interim relief claimed by the Notice of Motion, and should have framed a preliminary issue as to jurisdiction 3 App960.10 of the court to entertain the suit. It is only on finding that the court has jurisdiction to try the suit, that the Notice of Motion could have been considered on merits. This had not been done by the learned single Judge. In this situation, in our opinion, following order would meet the ends of justice: O R D E R (i) The order impugned in the Appeal is set aside. (ii) Notice of Motion No.3591 of 2008 is remitted back to the learned single Judge for fresh hearing. The learned single Judge is requested to frame a preliminary issue as to jurisdiction of the court to entertain the civil suit as framed and filed and shall try that issue first and after depending on the finding that the learned single Judge recorded on that issue pass appropriate order on the Notice of Motion. (iii)Appeal disposed of. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA, J.) 4 App960.10 5 App960.10