1 216 ao.552.04 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 552 OF 2004 M/s. Shah Kumarpal Padamsi and Company. ... Appellant Versus Parrys Confectionery Limited. ... Respondent ­­­­­ Mr. Bhavin Gada and Mrs.Y.D.Gada i/b M/s.Harakhchand and Company for the Appellant. Mr. V.N.Tayade for the Respondent. ­­­­­ CORAM : A.S.OKA, J. DATE : 28 th March, 2011. P.C. 1 Heard the learned counsel appearing for the parties. 2 Time to carry out amendment is extended by a period of four weeks from today. 3 By the impugned order, the learned trial Judge has held that the trial Court has no territorial jurisdiction to entertain and try the suit 2 216 ao.552.04 filed by the Appellant. Therefore, order of return of plaint was passed. 4 The learned counsel appearing for the Appellant pointed out that when the impugned order was passed, the issues were framed and the suit was at the stage of recording of evidence. He submitted that there is no specific order passed by the trial Court directing that the issue of jurisdiction shall be decided as a preliminary issue. He submitted that by the very nature of the issue raised, the decision on the issue involved disputed questions of facts and law. He submitted that an attempt was made earlier to get the preliminary issue framed under Section 9­A of the Code of Civil Procedure, 1908 and the said application was not entertained. The learned counsel appearing for the Respondent supported the impugned judgment and order and submitted that in view of the relevant clause in the agreement, no interference is called for to the impugned order. 5 I have given careful consideration to the submissions. On 21 st July, 2011 issues were settled. The first issue was regarding the 3 216 ao.552.04 jurisdiction. It appears that an application was made by the Respondent – defendant at Exhibit – 30 praying that the issue of jurisdiction may be decided as a preliminary issue. The said application was filed on 10 th September, 2003 on which the learned trial Judge passed an order “other side to say”. A reply was filed to the said application by the Plaintiff by which the said application was opposed. There is nothing on record to show that the application at Exhibit – 30 was allowed and that the issue of jurisdiction was ordered to be heard and decided as a preliminary issue. In fact, from first two paragraphs of the impugned order and from the order passed below Exhibit – 30, it appears that there was no order passed directing that the issue No.1 of jurisdiction should be decided as a preliminary issue. Obviously, the issue of jurisdiction was never fixed for hearing and the parties did not get any opportunity to adduce the evidence. Considering the fact that the issue of territorial jurisdiction was raised on the basis of the alleged agreement between the parties, mixed questions of facts and law were involved. 6 In the circumstances, the impugned order will have to be 4 216 ao.552.04 quashed and set aside. The suit is filed in the year 1997. The issues have been settled long back. Therefore, at this stage, interests of justice will be served if the trial Court is directed to decide all the issues together as expeditiously as possible. 7 Hence, I pass the following order: i. The impugned judgment and order dated 7 th February, 2004 is quashed and set aside ; ii. The trial Court is directed to decide all the issues together including the issue of jurisdiction ; iii. All the contentions of the parties on the issue of jurisdiction are expressly kept open ; iv. Since the suit is of the year 1997, the trial Court shall make an endeavour to decide the suit as expeditiously as possible and preferably within a period of six months from the date on which the writ of this order is received by the said Court ; v. The appeal is partly allowed on above terms with no order as to costs. [ A.S.OKA, J ]