1 wp6408-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.6408/2010 1] Janu S/o Lala Pathan Secretary, Fundabi Pathan Shikshan Prasarak Mandal, Nalwandi, age 65 years, Occ-Retired, R/o Nalwandi, Tq. Patoda, Dist.Beed. 2] Iqbal S/o Janu Pathan age 39 years, Occ-Agril R/o Nalwandi, Tq. Patoda, Dist.Beed. 3] Dr.Bilkis Farook Shaikh age 36 years, Occ-Household, R/o Sadaphule Galli Jamkhed, Dist.Ahmednagar. .. PETITIONERS VERSUS Kadarbhai Manikbhai Shaikh age 75 years, Occ-Agril R/o At Post Wadgaon Tq. Pathardi, Dist.Ahmednagar. .. RESPONDENT ...... Shri Anjali Bajpai Dube,Adv.for Petrs. Shri S.A.Nagargoje h/f Shri N.L.Jadhav,Adv. Respondent .... CORAM : A.A.SAYED,J. DATE : 20/12/2010. ORAL JUDGMENT : 2 wp6408-10 1] Rule. Rule made returnable forthwith. By consent petition is heard finally. 2] By the above petition, the petitioner takes exception to the order dated 22/6/2010 passed by Civil Judge, Junior Division, Patoda. By that order, the application at Exh.21 preferred by the petitioner/orig. deft. no.2 to frame preliminary issue in respect of jurisdiction of the Court to try the suit came to be rejected. 3] The Suit, being Regular Civil Suit No.40/09 is filed by respondent/orig.plaintiff No.2 for perpetual injunction against the petitioner/original defendants 1 to 3 not to interfere in the day to day affairs of the management of the trust known as Fundabi Pathan Shikshan Prasarak Mandal ( the said trust for the sake of brevity). According to the petitioners the respondent/orig.pltff.2 was at one time the president of the said Trust, however, could not be elected on executive body of the said trust thereafter. It appears that change reports were filed by the respondent/orig.plaintiff no.2 and during the pendency of the change reports, an application being Application No. 11/06 under Section 41-E of the Bombay Public Trust Act, 1950 came to be filed before the Joint Charity Commissioner Latur. By the said application, the respondent prayed that the petitioners herein be restrained from conducting the affairs of the trust till the decision of the change reports. An application for temporary injunction was also moved and the said application was rejected on 8/10/07. Thereafter, by an order dated 29/12/2008, the Joint Charity Commissioner, Latur disposed of the said Application No. 11/06 under Section 41-E of the B.P.T. Act rejecting injunction sought by the respondent against the petitioners 3 wp6408-10 and it was also directed that the hearing of the change reports be expedited. 4] The respondent thereafter filed Regular Civil Suit No. 40/09 in the Court of Civil Judge, Junior Division, Patoda for perpetual injunction against the present petitioners. The petitioners herein resisted the suit by filing Written Statement. It appears that the respondents in the said suit have filed injunction application against the present petitioners to restrain them from interfering with the day to day working of the trust. The petitioners have averred that in the said suit for perpetual injunction, similar issue as that in the Application No.11/06 u/s 41-E of the B.P.T. Act, which has been decided by the Joint Charity Commissioner, Latur, is involved and that the said suit is barred in law and that the Court has no jurisdiction. An application at Exh.21 was moved by the petitioners in the said suit raising the issue of jurisdiction on various grounds and praying that the said issue be decided as preliminary issue under Section 9-A of C.P.C. By impugned order dated 22/6/10, however, the said application at Exh.21 came to be rejected, hence this Writ Petition. 5] The issue which arises for consideration in the present petition is whether the learned trial Judge was right in rejecting the application of the petitioner for framing preliminary issue under Section 9A of the Civil Procedure Code, 1908. It would be appropriate to extract Section 9-A of C.P.C. which was inserted vide Maharashtra Amendment on 1/2/1977. Section 9-A reads as under : 9-A] Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a 4 wp6408-10 preliminary issue  [1] Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit. [2] Notwithstanding anything contained in sub-section (1) at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction 6] On a bare reading of Section 9-A as quoted above, would reveal that in an application for interim relief in any suit, if a preliminary issue of jurisdiction is raised, the Court may grant ad-interim relief. However, before deciding such application finally for interim relief, the Court is required to hear and dispose of objections to the jurisdiction of the Court as a preliminary issue and that the said issue is to be decided as expeditiously as possible and it shall not in any case be adjourned to the hearing the suit. The learned counsel for the petitioners has relied 5 wp6408-10 upon the Division Bench decision of this Court in the case of Royal Palms (India) Pvt. Ltd. & Ors V/s Bharat Shantilal Shan & Ors. reported in 2009(2) Bom. C.R.622 in support of her contention that if the issue of jurisdiction is raised under Section 9-A of the C.P.C. that issue shall have to be decided first. On the other hand, the learned counsel for the respondent relied upon case of Namgonda Jingonda Patil V/s Appasaheb Bapurao Walwekar reported in 2000 Law Suit (Bom) 135, wherein the learned Single Judge of this Court has held that the ouster of Civil Court s jurisdiction is not to be easily inferred. 7] Having heard the learned counsel for the parties, in my view, the learned trial Judge was not right in rejecting the application of the petitioners. The issue in the present petition is squarely covered by the decision in the case of Royal Palm (India) Pvt. Ltd. (supra). The Division Bench in the said judgment relying upon the decision of the Apex Court in the case of Tayabbhai Bagasarwalla and Anr. V/s Hind Rubber Industries Pvt. Ltd reported in 1997 (3) S.C.C. 433, and the Division Bench judgment of this Court in the case of Smithkline Beecham Consumer Healthcare GHBH V/s Hindustan Lever Ltd. 2003 (2) Bom. L.R. 547, has observed in para 4 as follows : It is thus clear from the law laid down by the Division Bench in its aforesaid judgment that when an objection to the jurisdiction of the Court to entertain the suits as the suits are barred by the law of limitation is raised, at the hearing of notices of motion wherein interim order is claimed, the Court is obliged by provisions of Section 9-A of C.P.C. to frame preliminary issue as to the ground raised to the jurisdiction of the Court to entertain the suits and proceed to 6 wp6408-10 decide that preliminary issue and it is only on decision of that preliminary issue, that the notices of motion can be taken up for final decision. We find that the learned Single Judge has made the order disposing of the notices of motion even after noting that one of the objections raised was to the jurisdiction of the Court to entertain the suits as they are barred by the law of limitation, therefore, the order made by the learned Single Judge will have to be set aside and the notices of motion will have to be remitted back to the learned Single Judge for consideration and decision in accordance with law. 8] The said decision thus applies on all fours to the case in hand. In so far as the decision quoted by learned counsel for the respondents is concerned, the said decision does not deal with Section 9-A of C.P.C. and therefore, would not be applicable to the present case. 9] In the circumstances, the impugned order is set aside. The Application of the petitioner below Exh.21 shall be deemed to have been allowed. The trial Court shall proceed to frame preliminary issue in respect of jurisdiction of the Court to entertain the suit and shall decide the same as expeditiously as possible. Rule is made absolute in terms of prayer clause B of the Petition. No order as to costs. (A.A.SAYED,J.) umg/wp3904-09