TMI Blog1994 (10) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause No. 29 of the agreement at Exs. 52 and 53 and accordingly directed return of plaint to the plaintiff. On appeal the District Judge, Amravati, allowed the appeal filed by the plaintiff, set aside the order of the trial Court dated 27-3-1987 and directed the trial Court that issues as per the pleadings be framed and after giving opportunity to the parties to lead evidence, the suit be decided in accordance with law. 3. Facts leading to the controversy between the parties are that the plaintiff filed a suit for declaration in the Court of Joint Civil Judge, Junior Division, Amravati for declaration that he was the absolute owner of truck bearing No. MHV 5187. The suit was filed against the defendant and it was averred by the plaintiff that he intended to purchase a truck and entered into an Agreement of Sale with one Shri Onkar Bandu Kasar for a consideration of Rs. 98,000/- . The plaintiff was in need of the money for the said transaction. The plaintiff had paid Rs. 50,000/- to Onkar on 10-4-1981 and had received the possession of the said truck bearing No. MHV 5187 from him. For making payment of the balance consideration, the plaintiff contacted one Gautamchand and he re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter committed defaults and in spite of repeated requests, did not make the payment of the balance amount. The defendant set up the defence that according to the hire purchase agreement, the plaintiff was only a hirer and not the owner of the vehicle. The defendant also challenged the jurisdiction of the Civil Court at Amravati by submitting that the said Court had no jurisdiction to try and entertain the suit in view of Clause 29 of the Hire Purchase Agreement which provided that all legal proceedings relevant to the subject matter of the hire purchase agreement between the parties shall only be prosecuted in Hyderabad Courts and the Courts at Hyderabad shall have the exclusive jurisdiction to try any legal proceedings or any suit in respect of any matter in respect of the dispute arising out of the said agreement. 4. It is not disputed by the parties that in the suit filed by the plaintiff in the Court of Third Joint Civil Judge, Junior Division, Amravati, an application for interim relief was also filed by the plaintiff. The admitted position between the parties is that by the application Ex. 28 filed under section 9-A of the Civil Procedure Code, the defendant during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant and directed the plaint to be returned to the plaintiff for presentation to the proper Court as set out in Clause 29 of the agreements Exs. 52 and 53. 8. This order dated 27-3-1987 passed by Third Joint Civil Judge, Junior Division, Amravati, directing return of plaint to the plaintiff for presentation to the proper court as set out in Clause 29 of the Agreement in Exs. 52 and 53, was challenged by the plaintiff before the District Judge, Amravati. The District Judge, Amravati held that the issue of jurisdiction was an issue of fact and law, and therefore, the trial Court could not have decided the said issue as a preliminary issue without deciding the other issues on merits. Consequently, the appellate Court allowed the appeal filed by the plaintiff and set aside the order dated 27-3-1987 passed by the trial Court and directed the trial Court that all the issues as per the pleadings of the parties should be framed and after recording the evidence the suit should be decided in accordance with law. This order of the District Judge, Amravati passed on 11-4-1991 is under challenge in the present revision application. 9. Mr. Sunil V Manohar, the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of jurisdiction as preliminary issue, the plaintiff submitted before the trial Court that he had no objection if the question of jurisdiction is decided by the trial Court as preliminary issue. Once the plaintiff agreed for trial of the issue of jurisdiction as preliminary issue, and on the said statement of the plaintiff, the trial Court proceeded with the determination of the issue of jurisdiction as preliminary issue, recorded the evidence of both the parties on the said issue, heard the learned counsel for the parties on the said issue and gave its decision that the Court at Amravati had no jurisdiction and plaint deserves to be returned to the plaintiff for presenting the same before the competent Court of jurisdiction at Hyderabad, the said issue having been decided against the plaintiff, it was not open to the plaintiff to submit before the Appellate Court that the said issue could not have been decided as a preliminary issue, since the issue pertains to mere question of fact as well as law. The plaintiff could not have approbated and reprobated at the same time. Having taken full chance of getting the decision in its favour on the issue of jurisdiction by not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... journed to the hearing of the suit. (2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction. 14. It would be seen from the aforesaid provision of section 9-A of Civil Procedure Code that it carves out an exception to Order 14, Rule 2, Civil Procedure Code and provides that notwithstanding anything contained in Civil Procedure Code if an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine the said issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. It is not disputed by the learned counsel for the plaintiff that the application under section 9-A was filed by the defendant for deciding the question of jurisdiction at the time when the application for interim relief was pending before the trial Court. Precisely because the application was filed by the defendant under section 9-A of Civil Procedure Code and the issue of jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not there, and therefore, under Order 14, Rule 2, Civil Procedure Code a mixed question of fact and law, could not be treated as a preliminary issue. In Maharashtra, section 9-A of Civil Procedure Code is an exception to Order 14, Rule 2 and therefore, Daljil Singh's case (cited supra) has no relevance or bearing on the present case. 16. In view of the discussion referred to hereinabove, the order passed by the Appellate Court on 11-4-1991 is liable to be quashed and set aside. 17. Consequently, this revision application is allowed and the order passed by District Judge, Amravati on 11-4-1991 in Misc. Appeal No. 34/87, Sheikh Shabbir s/o Sheikh Noor vs. M/s Chopda Automobiles Finance, is quashed and set aside and the District Judge, Amravati is directed to decide the appeal afresh in accordance with law and in view of the discussion made in this order. Since the appeal before the District Judge, Amravati is of the year 1987, it is expected that the District Judge, Amravati shall give topmost priority for the disposal of the said appeal and in any case decide the same within three months of the appearance of the parties before the said Court. Both the parties are directed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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