1 WP 4381/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4381 OF 2011 Kantilal Giridharsa Lakkadkot .. Petitioner V/s Sou. Usha Prakash Shahare .. Respondent Mr. S.S. Kulkarni for the petitioner. Mr. R.N. Gite for the respondent. CORAM : D.G. KARNIK, J. DATE : 11TH JULY 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Gite waives service for the respondent. 3. By consent, taken up for hearing. 4. The petitioner is the original defendant. The respondent filed a suit against the petitioner for a declaration and injunction. In the suit, he made an application for an interim injunction restraining the petitioner from disturbing his possession. The petitioner filed a reply inter alia contending that the Court had no jurisdiction to entertain and try the suit. The petitioner also made an application under section 9A of the Code of Civil Procedure (for short “the Code”) for framing an 2 WP 4381/2011 issue regarding jurisdiction as a preliminary issue. By an order dated 19th March 2011, the trial Court dismissed the application. That order is impugned in this petition. 5. For rejecting an application, the trial Judge has relied upon a decision of this Court in Panorama Estate and Anr. v. Raad Khalid and Anr., 1996 (1) Mah. L.R. 854. In that case, it was held that the jurisdiction of the Court is to be determined on the basis of the averments in the plaint and it is irrelevant to consider the defence of the defendant for deciding the issue regarding jurisdiction. Considering the averments made in the plaint, the Court held that it had the jurisdiction to entertain the suit and accordingly dismissed the application. 6. It may be noted that the issue before the trial Court was not to decide whether the Court had jurisdiction to try the suit. The question before the trial Court was whether a preliminary issue relating to jurisdiction was required to be framed before framing of issues in the suit. It may also be noted that in the case of Meher Singh v. Deepak Sawhny, 1998 (4) All MR 536, a Division Bench of this Court has held that a finding on the preliminary issue is final and before recording such finding opportunity is required to be given to the parties to adduce 3 WP 4381/2011 evidence. In the present case, without giving an opportunity to the parties to adduce evidence, the Court has held that it has jurisdiction and on that ground the application for framing the issue of jurisdiction has been rejected. Obviously, this could not have been done before framing the preliminary issue regarding jurisdiction. Needless to say that the Court can, after framing the issue and giving an opportunity of hearing and adducing evidence, determine the issue either way, but could not have rejected the application under section 9A of the Code and declined even to frame the preliminary issue by holding that it had jurisdiction. 7. For these reasons, the impugned order is set aside and the matter is remanded back to the trial Court for the purpose of considering the application under section 9A of the Code on its own merits. Rule is made absolute to the extended indicated above. (D.G. KARNIK, J.)