TMI Blog1990 (12) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction to hear this suit because of a bar created by section 80 of the Bombay Pubic Trusts Act, I960. Plaintiff had submitted an application for temporary injunction under Order 39, Rule 1 praying that the defendants be restrained from obstructing him from working as a Secretary of the said Trust. Despite raising an objection in the written statement, a separate application was also moved by the defendants on 9 7-1990 that the point for the jurisdiction be decided though the prayer did not say so elaborately but the intention of the defendant in filing this application appear to be that this issue be tried as preliminary issue. This is clear by the fact that in the title of this application, there is a mention that this application, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Court has acted with material irregularity in deciding the question of the interim relief before framing an issue regarding the jurisdiction and deciding it as a preliminary issue required by mandate of section 9-A of the Code of Civil Procedure, 1908 but has also acted without jurisdiction. Shri Bora submits that whenever an objection to the jurisdiction of the Court is raised, the Court has no jurisdiction to pass any order of interim relief unless it decides the question of jurisdiction first and finds that it has jurisdiction and only an exception carved out from this is that during the pendency of the question of jurisdiction and when the decision of the said question is in process, ad interim relief can be granted by the Court. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order 39 are to be decided by the same procedure. A summary procedure has been prescribed for decision application under order 39 and it is evident from special provision made in respect of taking evidence while considering the interim relief. Order 39, Rule 1 authorises specifically to the Court hearing application for interim relief to pass orders when the facts are proved by affidavits This is an exception to the general rule how the evidence is to be recorded in the trial of a suit as mentioned in Rule 4 of Order 18. Secondly, the nature of the evidence which a party would be required to place before the Court when the Court is considering a question of granting or refusing interim relief under Order 39 would be totally different from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue has not been framed at all, a mere consideration of the question of jurisdiction by asking Counsel to address the Court on the point will not be a decision on the issue as is required by the mandate of section 9-A of the Code of Civil Procedure. Therefore, there is no compliance of the provisions of section 9-A. 8. The question of jurisdiction and of interim relief can be heard together was also considered by Kotwal, J., in Kranti Mohan Guruprasad Mehra and another v. Fatehchand Vasuram Behal, . KotwaL J., observed thus--- It is true that it may be permissible for the Court to adopt a composite hearing of the said preliminary issue and the interim relief and even to determine the preliminary issue at such hearing and it may even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of such an issue even at that stage would get a label of finality in so far as that proceeding and the suit is concerned. It is this depth that is in contract with the thinner one of the interim applicator for an interim relief which is to be decided essentially on the prima facie view without probing deeper in the finer shades and aspects. One tends to touch the roof whereas the other remains on the surface. This difference would equally by alive even if both the matters are heard at one and the same time . Though Kotval, J., has pointed out the possibility of both the questions to be decided together, but looking to the difference of the nature of the inquiry as was pointed out by him, it would always be desirable that both the thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge, Aurangabad becomes infructuous and he would withdraw the same for that reason. However, it appears that an interim relief has been granted in Misc. Appeal by the appellate Court on 29-8-1990 and that interim relief still continues. This interim relief is directed to be continued and to be taken as interim relief granted under sub- section (2) of section 9-A only during the pendency of the decision on the question of jurisdiction. Preliminary issue to be framed by learned trial Judge, if any, under section 9-A within a period of two months from today. The writ to go forthwith Since the learned trial Judge has taken a view about the interim relief in his order, it would be desirable if the matter is .assigned to some other Judge This lib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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