1 WP 2660/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2660 OF 2011 Smt. Vidya Pradeep Kohok .. Petitioner V/s Prakash Vishwasrao Kohok .. Respondent Mr. Satyajeet P. Dighe i/b Mr. Sandeep K. Shinde for the petitioner. Mr. R.D. Soni i/b Ram & Co. for the respondent. CORAM : D.G. KARNIK, J. DATE : 12TH JULY 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Soni waives service for the respondent. 3. By consent, heard forthwith. 4. The respondent filed a suit bearing Special Civil Suit No. 250 of 2010 against the petitioner for a mandatory injunction that the respondent should transfer the joint membership in Nashik Cooperative Society Ltd. (for short “the Society”) in favour of the petitioner or his nominee and also for an injunction restraining him from transferring the plot in the Society to any third person. In the suit, the petitioner also applied for an interim injunction restraining the respondent from transferring 2 WP 2660/2011 the membership in the Society in favour of any third person. At the hearing of the application for injunction, the petitioner filed an application under section 9A read with Order 7 Rule 11 of the Code of Civil Procedure (for short “the code”) contending that the civil court had no jurisdiction to entertain and try the suit and the disputes between the parties would be required to be decided by the Cooperative Court under section 91 of the Maharashtra Cooperative Societies Act. By an order dated 25th November 2010 the trial Court rejected the application. That order is impugned in the present petition. 5. Relying upon a decision of this Court in Mukund Ltd. vs. Mumbai International Airport, 2011 (2) All M.R. 510, wherein it is held that the provisions of section 9A of the Code are mandatory, learned counsel for the petitioner submitted that section 9A of the Code is mandatory and if an objection to the jurisdiction of the Court is raised at the hearing of an application for any interim relief, it is obligatory for the Court to frame an issue of its jurisdiction. The trial Court therefore ought to have framed the issue of its jurisdiction. 6. Learned counsel for the respondent submitted that the Court has considered the merits of the contention of the 3 WP 2660/2011 petitioner that it had no jurisdiction to entertain and try the suit and has held that the Court has jurisdiction and therefore has rightly declined to frame the issue regarding jurisdiction. In my view, the submission of the respondent cannot be accepted. 7. The Court could not have decided whether it had jurisdiction to entertain and try the suit without framing an issue as to its jurisdiction. In Meher Singh vs. Deepak Sawhny, 1998 (3) Mh. L.J. 940, a Division Bench of this Court has held that any decision rendered by the Court on the jurisdiction on an issue framed under section 9A of the Code is final and cannot be reopened even at the final hearing of the suit and therefore the parties must be given an opportunity of adducing evidence before recording any finding on the issue. In the present case, the learned Judge appears to have come to the conclusion that the Court has jurisdiction to try the suit without giving an opportunity to the parties to adduce evidence by framing a preliminary issue. In my view, this could not have been done. The Court could have come to the conclusion that it had jurisdiction to try the suit only after an issue regarding jurisdiction was framed and opportunity given to the parties to adduce evidence on the issue, if they so desired. This is so because the decision of the Court that it has jurisdiction though 4 WP 2660/2011 rendered at an interlocutory stage is final and cannot be reopened even at the stage of final hearing of the suit. Mr. Soni contended that since the Court has clearly held that it has jurisdiction, it is not necessary to again frame an issue regarding jurisdiction. The submission cannot be accepted. The decision rendered without giving opportunity to the parties to adduce evidence to the parties and even without putting them to notice that the issue of jurisdiction would be decided (even without framing it) cannot be a valid decision on the issue. 8. For these reasons, the impugned judgment is set aside and the trial Court is directed to frame the issue regarding its jurisdiction to try the suit and decide it as a preliminary issue in the light of the decision of this Court in the case of Meher Singh vs. Deepak Sawhny, 1998 (3) Mh. L.J. 940. (D.G. KARNIK, J.)