TMI Blog1999 (9) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... l Side of this Court as well as in the subordinate courts. Section 9-A, which is added to the Civil Procedure Code by an Act known as Code of Civil Procedure (Maharashtra Amendment) Act, 1977, reads as under :-- 9-A. (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a Receiver or otherwise, made in any suit, 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 at the hearing of such application the issue as to the jurisdiction as a prelimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erim relief, pending determination of the preliminary issue as to the jurisdiction. 5. Before the learned Single Judge, it was contended that when the said issue is raised for determination, the Court is required to permit the parties to lead evidence. Before the learned Single Judge, decisions in the case of Kranti Mohan Guruprasad Mehra and another v. Fatechand Vasuram Behal, and in the case of Dinyar Behramji Irani v. Kshirsagar Construction Co. Pvt. Ltd., reported in Bombay were relied upon to contend that section 9-A is self-contained scheme with definite object of deciding objection with regard to jurisdiction of the Court to deal with the matter at the preliminary issue. 6. The learned Single Judge arrived at the conclusion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to grave abuse. It is therefore proposed to provide that if a question of jurisdiction is raised at the hearing of any application for granting or setting aside an order granting an interim relief, the Court shall determine that question first. 8. In the case of Institute Indo-Portuguese v. Dr. T. Borges, reported in 1958 Bom.L.R. 660, the Court appointed Receiver with regard to Trust property and a contention was raised whether the Court has jurisdiction to entertain the suit in the first instance and to appoint Receiver thereafter. In that case the Court has observed that the question whether the Court has jurisdiction to entertain the suit for the reliefs claimed therein would be an appropriate question in the suit itself, and may, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, and may deal with the suit in accordance with the decision on that issue. Sub-Rule (1) of Rule 2 specifically provides that 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. The man-date of Order XIV, Rule 2 is to decide, as far as possible, all the issues and pronounce judgment on all issues. However, it is subject to sub-rule (2), which gives discretion that if the Court is of the opinion that the case or any part thereof can be disposed of on the issue of law only, it may try that issue first, if that issue relates to the jurisdiction of the Court or bar to the suit. As against this, section 9-A specifically gives a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be non-suited on the basis of the averments made in the plaint or in the Written Statement, If the issue is a pure question of law, then it may be decided without recording evidence, but if it is a mixed question of Jaw and fact, then parties should be permitted to lead evidence on the facts of the case. Question of jurisdiction, even if it is a mixed question of law and fact, it is required to be decided first. For deciding the said issue, the parties are entitled to lead evidence, oral as well as documentary, as that issue is required to be tried and adjudicated finally by the Court. The determination of the said issue is not only for the limited purpose of granting interim relief or vacating interim relief. It is true that this procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit. But if the issue of jurisdictions is required to be raised and finally determined, then it would require giving an opportunity of leading of evidence and hearing to both the parties. 12. We would, at this stage, refer to the precise principle laid down by this Court in the case of Fazlehussein v. Yusufally, , wherein the Court has, after observing that the averments made in the plaint would be sufficient to decide the question of jurisdiction, held as under :-- In considering the preliminary issue, the Court must look into the averments in the plaint and consider any objections which the defendant may choose to raise against the maintainability of the action on those averments. The question of jurisdiction which is raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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