1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL LODGING NO. 35 OF 2009 IN NOTICE OF MOTION NO. 53 OF 2008 IN TESTAMENTARY SUIT NO. 5 OF 2007 IN TESTAMENTARY PETITION NO. 494 OF 2006 Dr. Mrs. Dhun Kaikhsushroo Sorabjee Modi and anr. .. Appellants Vs. Izadyas Rohinton Irani .. Respondent Mr. Sorab Khaikhushroo Modi, party-in-person (appellant no.2). Mr. R.M. Nakhwa a/w Vasant B. Dhawan for respondent. CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. February 16, 2010. P.C. 1. Heard Mr. Sorab Modi, party-in-person, on behalf of the appellants. 2. This appeal is directed against the interlocutory order dated 17th October, 2008, whereby Notice of Motion No. 53 of 2008 filed in 2 Testamentary Suit No. 5 of 2007 in Testamentary Petition No. 494 of 2006 has been disposed off. 3. The Motion was taken out by the defendant nos.1 and 2 and defendant no.2 appeared as the Constituted Attorney of defendant no.1. Various objections were raised relating to the merits of the Testamentary Suit, including the issue of jurisdiction of the court to entertain and try the suit or the petition. The issue relating to the title of the property was also raised along with the prayer for the relief of injunction. 4. By the impugned order the learned trial Judge held that the issue regarding the title cannot be gone into while deciding a probate petition and for the relief of injunction it was necessary to take out appropriate proceedings. So far as the issue of jurisdiction is concerned, it was noted that the appellants did not file the Written Statement and consequently the motion came to be disposed off. 5. It is well settled that the issue of jurisdiction, even as a preliminary issue, would be one which is framed on the pleadings of the parties. In the instant case, the appellants have not filed Written Statement. 3 It was also not clear, whether any separate application was filed under Section 9A or under Order 14 Rule 2 of C.P.C. It was for these reasons the learned trial Judge left all the contentions in the main suit expressly open and directed to list the suit on board on 14/11/2008 for settlement of issues and in the meanwhile the parties were directed to exchange draft issues. No prejudice has been caused to the appellants, as of now, by the impugned order and even for the relief of injunction, the appellants will have to take out a separate motion. It appears in Motion No. 53 of 2008 a host of prayers were made and that too without filing any Written Statement. Unless the defendants come out with their reply to the plaint, the issue of jurisdiction could not be raised unless an application under Section 9A of C.P.C. was filed at the time of hearing of the motion taken out by the plaintiffs for temporary injunction. 6. Hence, there is no merit in the challenge to the impugned order and the appeal must fail at the threshold. The appeal is hereby dismissed in limine. (SMT. V.K. TAHILRAMANI,J.) (B. H. MARLAPALLE,J.)