1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7787 OF 2008 Atul Babulal Shah ...Petitioner vs. Karnataka Industrial Area Development Board ...Respondent Shri S.N.Chandrachood for the petitioner Mr.V.P.Swant for respondent CORAM :A.S.OKA,J. DATE : AUGUST 28, 2009 P.C. 1 Heard the learned counsel for the petitioner who is original plaintiff and the learned counsel for the respondent. The petitioner filed a suit against the respondent in the court of Civil Judge (S.D.), Pune praying for recovery of a sum of Rs.71,13,500/- together with interest thereon. In the said suit, an application purporting to be an application for attachment before Judgment and temporary injunction was made by the petitioner. By the impugned order, the said application has been rejected by the trial court. The learned trial Judge has observed that the court will not have jurisdiction to entertain the suit. 2 It appears that the respondent did not appear in the suit and contest the suit as well as the application on which the impugned order passed. Without complying with 2 the requirement of sub rule 1 of rule 5 of Order XXXVIII of the Code of Civil Procedure,1908, the trial court had straight away taken up the application for final disposal. If issue of jurisdiction of the court to entertain the suit arises at the time of hearing of an application for temporary injunction,, in view of the mandate of section 9A of the said Code, the court is required to consider the objection by framing a preliminary issue on jurisdiction. The issue regarding jurisdiction could not have been decided without framing a preliminary issue. Considering the aforesaid aspects, the only option open before this court is to set aside the order and remand the application for fresh consideration before the trial court. As far as prayer for grant of attachment before Judgment is concerned, the trial court will have to apply its mind and consider the case sub rule 1 of rule 5 of Order XXXVIII of the said Code. As far as prayer for injunction is concerned, it will be open for the respondent to file a reply to the said application. It will be open for the respondent to raise a contention regarding bar of jurisdiction. 3 Hence, I pass the following order : i) Impugned Judgement and Order dated 11th August 2008 is quashed and set aside. 3 ii)The application at Exh.5 in Special civil Suit No. 764 of 2008 is restored to the file of the trial court. iii)The trial court will proceed to deal with the said application in accordance with law subject to observations made in this order. iv)It will be open for the respondent to file a reply to the said application within a period of six weeks from today. It be also open for the respondent to raise contention regarding bar of jurisdiction apart from the other available contentions. v) Writ Petition is disposed of in above terms by keeping all contentions open. JUDGE