1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4243 OF 2009 Vishnu Mahadev Kadam ... Petitioner v/s Prakash B. Mehta ... Respondent Mr.Jitendra G. Damani for the petitioner. Mr.J.M.Chodankar for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 18TH JUNE, 2009 P.C.: 1. The petition has been filed against the order passed by the 6th Ad-hoc Additional Sessions Judge, City Civil Court, Dindoshi, Mumbai, on 25.2.2009. By this order, the learned Judge has directed the parties to argue on the preliminary issue of jurisdiction before continuing with the trial of the suit. 2 2. The petitioner who is the plaintiff before the City Civil Court has filed the present suit contending that the respondent is a trespasser in respect of the suit premises i.e. a room admeasuring 10’ x 12’ in Kadam Chawl, bearing Survey No.117, Hissa No.21, Part, C.T.S. No.1589, Vile Parle (E), Mumbai – 400 057. 3. Issues were framed on 18.6.2007 after the written statement was filed by the respondent. One of the issues which was framed was whether the defendant, the respondent herein, has proved that the Court has no jurisdiction to entertain and try the suit. Additional issues were then framed on 29.3.2008. The petitioner has already filed his affidavit in lieu of evidence and documents on which he relies. The matter has now been fixed for his cross-examination. 4. The learned advocate for the petitioner contends that all issues would have to be decided together as the question of jurisdiction cannot be decided as a preliminary issue in the facts and circumstances of the present case. He submits that it is only after evidence is led that it will be possible for the City Civil Court to determine 3 whether it has the jurisdiction to try the suit. In these circumstances he submits that all issues should be tried together. 5. The learned advocate for the respondent brings to my notice the judgment of a learned Single Judge of this Court in the case of Deepak Dhansing Patil v/s Girish Damodar Deo & anr., reported in 2005 (3) ALL MR 589. Placing reliance on this judgment, the learned advocate submits that the issue of jurisdiction must always be decided as a preliminary issue by the Court and all issues cannot be tried together. 6. It is no doubt true that an issue regarding jurisdiction should be tried as a preliminary issue. Order 14 Rule 2 reads as follows:- “2. Court to pronounce judgment on all issues-- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to -- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, 4 and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” Sub-rule (2) mandates that where the case or any part thereof can be disposed of on an issue of law only, it may try that issue first if that issue relates to the jurisdiction of the Court, or a bar to the suit created by any law for the time being in force. 7. In the present case, the dispute is whether the respondent is a tenant or a trespasser as claimed by the petitioner. The jurisdiction of the City Civil Court would be barred if the respondent is a tenant. However, if, on the other hand it is found that the respondent is a trespasser, then it would have a jurisdiction to try the suit. 8. In the present case, the plaintiff has filed his affidavit in lieu of evidence. Unless it is established by evidence that the respondent is a tenant, the jurisdiction of the City Civil Court will not be barred. Therefore, the City Civil Court would have to permit the evidence to be led on this issue before concluding the aspect of its 5 jurisdiction to try the suit. 9. In my opinion, it would be therefore reasonable to direct the parties to lead evidence on all issues. However, if it is found that the Court has no jurisdiction in view of the evidence on record by which it is proved that the respondent is a tenant, then the City Civil Court need not decide the other issues. 10. In view of this, the petition is allowed. 11. The evidence on all issues will be led together. The City Civil Court will decide the jurisdiction of the Court while dealing with the other issues. ..... 6