: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.820 OF 2009 Pimpri Chinchwad Municipal Corporation ... Applicant V/s. Smt.Vasanti Vasant Shinde ... Respondent Mr.G.H. Keluskar for Applicant Ms.Fozthe i/b Vijaya S. Jagdale for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: FEBRUARY 25, 2010 P.C.: 1. The present application has been preferred to challenge the order passed by the trial Court i.e. the Civil Judge, Junior Division, Pimpri, Pune on 9.11.2009. 2. The respondent filed a suit for a declaration that notice dated 25.2.2008 issued by the applicant was illegal. She also sought an injunction restraining the applicant from demolishing or removing part of the structure ie. the W.C. The applicant filed its written statement and contended that a preliminary issue be framed u/s 9A of the Code of Civil Procedure with respect to the jurisdiction of the Civil Court to try the suit. The applicant contended that the suit was barred u/s 149 of the Maharashtra Regional Town Planning Act. After hearing both the sides, the trial Court by its order rejected the application on the ground that all issues would be : 2 : decided together as “it is necessary to for the trial as per section 9 of Civil Prcedure Code. The civil Court has parent jurisdiction and thereby at this stage I do not find there is substance in the contention of the defendant that the jurisdiction of the civil Court is barred”. 3. Mr.Keluskar appearing for the applicant Corporation submits that there are several judgments of this Court which take the view that once a preliminary objection regarding jurisdiction is raised by the defendant the Court must frame an issue and decide it as a preliminary issue. He relies on the judgment in Foreshore Co- operative Housing Society Ltd., Bombay vs. Praveen D. Desai & Ors., 2009(2) Mh.L.J. 28. 4. The learned advocate appearing for the respondent submits that it is not necessary that in all cases, the preliminary issue regarding jurisdiction should be decided before all the other issues. She submits that in view of the judgment of the Division Bench of this Court in Jagdish Hari Thatte & Ors. v/s. Municipal Corporation of Greater Bombay & anr., 2007(1) Bom.C.R.577, all issues can be decided together. 5. In Jagdish Hari Thatte & Ors. (supra), the following issue was referred to the Division Bench for consideration: “While deciding the suit finally after parties have led evidence on all issues when a Court comes to the conclusion that it lacks jurisdiction to hear and decide the suit, whether it is necessary for the Court to decide other issues on merits at the time of or before passing the order of return of plaint”. 6. In Jagdish Hari Thatte & Ors. (supra), the trial Court had framed issues on all counts including the jurisdiction of the Court to decide the matter. In that case, the : 3 : parties had adduced evidence and the matter was fully heard. However, it appears that while delivering the judgment, the learned trial judge dealt with the issue regarding jurisdiction alone and concluded that in view of the provisions of section 149 of the MRTP Act, the suit filed by the plaintiff was not tenable. He further observed that in these circumstances, it was not necessary for him to deal with other issues and therefore without recording any findings on the other issues, the trial Court directed that the plaint be returned to the plaintiff for presenting it before the proper forum. It is in these facts and circumstances that the Division Bench has observed thus: 10. A perusal of sub rule (2) of rule 2 of Order XIV makes it clear that when issue of law and of fact arise in the same suit and the court is of the opinion that the case or any part thereof may be disposed of on issue of law only, it may try that issue first when that issue relates to (a) jurisdiction of the court; or (b) the bar to the suit created by any law for the time being in force. Thus, it is not disputed that issue of jurisdiction of the court can be tried as a preliminary issue. But, now in view of Order XIV Rule 2 (2) of the said code it gives discretion to the court. It is not mandatory on the court to decide the question of jurisdiction or other issue relating to the maintainability of the suit as preliminary issue. If we carefully read the wording of the issue that has been referred to this division bench for consideration, it is very clear that it contemplates the situation where the court has decided not to try the issue with regard to jurisdiction as preliminary issue and parties have infact led evidence on all the issues and the suit is ready for final judgment. It is also needless to say that in view of the provisions of Order VII Rule 10, plaint can be returned at any stage. It obviously means that it can be done so even while deciding the suit finally. The main question is whether it is necessary for the court to record finding on all issues when the court has not followed the course contemplated under Order XIV Rule 2 (2) of the said Code. 7. In the case of Foreshore Co-operative Housing Society Ltd., Bombay (supra), another Division Bench of this Court has observed thus: 18. The moment, the issue of jurisdiction is raised under Section 9A of the Code of Civil Procedure, the said issue should be decided at first, and not to be adjourned to a later date. The main reason is that if the Court comes to finding that it does not have jurisdiction vested in it in law, then no further : 4 : enquiry is needed and saves a lot of valuable judicial time. In fact, Section 9A itself mandates that when an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties, the Court will have to decide the issue expeditiously and in no case to be adjourned to the hearing of the suit. 8. The Division bench relied on several other judgments delivered by this Court on the issue including Smithkline Beechan Consumer Health Care vs. Hindustan Lever Ltd. & Ors., 2002(1) Mh.L.J. 453. 9. Reading the aforesaid two judgments it is apparent that if a party requests the Court to frame an issue regarding the jurisdiction of the Court to try the case, it must be framed as a preliminary issue and the Court must decide it as such. However, in a case where all issues have been framed, the evidence has been led and the defendant does not raise the question of jurisdiction as a preliminary issue, the Court may decide all issues together. 10. In the present case, therefore, the trial Court has erred in concluding that the issues will all be decided together. It was necessary for the trial Court to frame a preliminary issue regarding the jurisdiction of the civil Court in respect of the matters covered by section 149 of the MRTP Act. 11. Accordingly, the civil revision application is allowed. 12. The trial Court shall frame a preliminary issue with respect to its jurisdiction in accordance with the application preferred on 16.2.2009 by the applicants herein and shall decide the same in the first instance, in accordance with law.