1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2238 OF 2009 Rajinder Narataram Kapoor and others Petitioners versus The State of Maharashtra and another Respondents Chetan Golwala for petitioners. Trupti Gohil for respondent no.2. A.P.Vanarse, AGP for State. CORAM : A.S.OKA, J. DATE : 24th July 2009 PC :- 1. Heard learned counsel for the petitioners and learned counsel for the second respondent. Considering the nature of controversy involved, the petition is taken-up for final disposal. The petitioners who are the defendants in a suit filed by the second respondent filed an application before the Trial Court praying that issue as to jurisdiction of the Trial Court be framed and be tried as a preliminary issue. By the impugned order the said application has been rejected. 2. The grievance of the petitioners is that instead of framing an issue and keeping it for hearing, the learned Judge has decided the issue of jurisdiction. The learned counsel for the second respondent submitted that the issue of pecuniary jurisdiction was never raised by the seconc respondent. She pointed out that the prayer made by the second respondent for grant of leave under sub rule 2 of rule 2 of order II of the 2 Code of Civil Procedure, 1908 is still pending before the Trial Court and hence no interference is called for. 3. I have considered the submissions. The prayer in the application made by the petitioners was that an issue as regards jurisdiction of the Trial Court be framed and be tried as a preliminary issue as per mandate of section 9A of the said Code. While dealing with the said application, the learned Judge could have framed an issue. However, by the impugned order passed on application in which only prayer was for framing issue, the learned Judge has purported to decide the issue of jurisdiction itself. Therefore, the impugned order is rendered illegal and the same is required to be set aside. 4. Hence, I pass following order :- (a) The impugned order dated 14th January 2009 is quashed and set aside; (b) Miscellaneous Application No.1 of 2009 is restored; (c) Learned Judge will decide Miscellaneous Application No.1 of 2009 afresh in the light of the observations made by this Court; (d) It is made clear that all contentions of the parties on the merits of the suit are expressly kept open; (e) The application be decided on its own merits. (A.S.OKA, J.)