Anand S/O Madanmohan Jaiswal vs M/S. Shewalkar Developers Ltd. ...
2018 Latest Caselaw 28 Bom

 Judgment                                            1                                wp7884.17.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 7884 OF 2017


 Anand S/o. Madanmohan Jaiswal,
 Aged about 42 years, Occupation: Business,
 R/o. Municipal Corporation House No.122,
 (old) 411 (new), City Survey No.2170, 
 Mouza : Sitabuldi, Mohan Nagar, Nagpur. 
                                                                         ....  PETITIONER.

                                      //  VERSUS //


 M/s. Shewalkar Developers Ltd., 
 a company incorporated under the 
 Indian Companies Act, 1956, 
 having its registered office at 
 Laxmi Bhavan Square, 
 West High Court Road, 
 Through its Managing Director
 Shri Ashutosh S/o. Ram Shewalkar, 
 aged about 52 years, Occupation :
 Business, R/o. Daga Layout, 
 North Ambazari Road, Nagpur. 
                                                    .... RESPONDENT
                                                                     .
  ___________________________________________________________________
 Shri R.M.Sharma, Advocate for Petitioner. 
 Shri Shyam Dewani, Advocate for Respondent. 
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : JANUARY 04, 2018.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

Judgment 2 wp7884.17.odt

3. The petitioner has filed civil suit praying for decree for

declaration that he is in settled legal possession of the suit property. The

petitioner/ plaintiff has further prayed for decree for injunction restraining

the defendants from disturbing peaceful possession of the plaintiff over the

suit property.

4. In this civil suit, the defendant has filed application (Exh.13)

under Order 7 Rule 11 read with Section 9A and Section 151 of the Code of

Civil Procedure contending that the claim of the plaintiff is barred by

limitation, and praying that the plaint be rejected. This application is

pending for decision.

The plaintiff had filed application (Exh.37) under Order 39

Rules 1 and 2 read with Section 151 of the Code of Civil Procedure praying

for mandatory injunction directing the defendant to restore possession of the

suit property to the plaintiff.

As the application (Exh.13) filed by the defendant is pending

for adjudication, the plaintiff had filed an application (Exh.50) under Section

9A(2) read with Section 151 of the Code of Civil Procedure praying that

pending adjudication of the application (Exh.13) interim order be passed

restraining the defendant from undertaking any construction on the suit

property.

Judgment 3 wp7884.17.odt

By the impugned order, the learned trial Judge has dismissed

the applications (Exh.37 and Exh.50). Being aggrieved by this order, the

petitioner/ plaintiff has filed this writ petition.

5. The order passed on application (Exh.37) is appealable under

Order 43 Rule 1(r) of the Code of Civil Procedure. The learned advocate for

the petitioner has submitted that though the order passed on application

(Exh.37) is appealable, the application (Exh.50) is also decided by the same

composite order and the order dismissing the application (Exh.50) is not

appealable as that order is passed under Section 9A(2) of the Code of Civil

Procedure. It is argued that in this background, the petition is required to be

entertained by this Court.

6. Section 9A of the Code of Civil Procedure (as applicable in the

State of Maharashtra) provides that when at the hearing of the application

relating to interim relief in civil suit, objection to the jurisdiction of the Court

is taken, such issue has to be decided by the Court as preliminary issue. Sub-

section (2) of Section 9A of the Code of Civil Procedure (as applicable to the

State of Maharashtra) provides that notwithstanding anything contained in

sub-section (1), the Court may grant such interim relief as it may consider

necessary, pending determination by it of the preliminary issue as to the

jurisdiction of the Court. Thus, sub-section (2) of Section 9A of the Code of

Civil Procedure confers jurisdiction on the Court to grant interim relief

Judgment 4 wp7884.17.odt

though an objection is raised by the defendant on the point of jurisdiction of

the Court to entertain the civil suit.

7. After considering the matter and hearing the advocates for the

parties, I find that the point which arises for consideration is, whether

Section 9A(2) of the Code of Civil Procedure is substantive provision

conferring power/jurisdiction on the Court to grant interim relief or it is

enabling provision providing that pending determination of the preliminary

issue as to the jurisdiction, the Court can grant interim relief.

8. The advocate for the petitioner has argued that Section 9A(2) of

the Code of Civil Procedure is a substantive provision. However, in my view,

Section 9A(2) of the Code of Civil Procedure (as applicable to the State of

Maharashtra) is not a substantive provision and is an enabling provision

permitting the Court to grant interim relief as it may consider necessary

pending determination of the preliminary issue as to the jurisdiction of the

Court to entertain and decide the civil suit. It is well settled that the Court

can grant interim relief if it has jurisdiction to grant that relief as final relief

(please refer to the judgment given in the case of Cotton Corporation of India

Vs. United Industrial Bank, reported in AIR 1983 SC 1272). The power to

grant temporary injunction is conferred in aid or as auxiliary to the final

relief that may be granted and if the final relief cannot be granted by the

Court in terms as sought for by the party, temporary relief in the same terms

cannot be granted.

Judgment 5 wp7884.17.odt

9. Keeping the above principle in mind it has to be held that the

prayer for temporary injunction made by the plaintiff in the application

(Exh.50) pending determination of the issue as to the jurisdiction of the

Court is nothing but the interim relief sought in aid of the final relief prayed

for by the plaintiff by the application (Exh.37). In the application (Exh.37),

the plaintiff prayed for interim order restraining the defendants from

undertaking any construction over the suit property. By the application

(Exh.50) the plaintiff sought the same interim relief restraining the

defendant from undertaking any construction over the suit property till

adjudication of the application (Exh.13) filed by the defendant. It is clear

that the plaintiff had filed application (Exh.50) only to seek interim relief

pending the adjudication of the objection raised by the defendant that the

Court has no jurisdiction to entertain and decide the civil suit. If examined

from this angle, I am of the view that separate application under Section

9A(2) of the Code of Civil Procedure is not required and the Court can grant

interim relief in terms of the prayer made in the substantive application filed

under Order 39 of the Code of Civil Procedure till adjudication of the issue of

jurisdiction of the Court to entertain and decide the civil suit. Therefore, the

order passed on application (Exh.50), which, though styled as application

under Order 9A(2) read with Section 151 of the Code of Civil Procedure, is

in effect an order passed under Order 39 of the Code of Civil Procedure and

it will be appealable under Order 43 Rule 1(r) of the Code of Civil Procedure.

Judgment 6 wp7884.17.odt

In view of the above, I am not inclined to entertain the writ

petition.

The writ petition is dismissed. In the circumstances, the parties

to bear their own costs.

The petitioner will be at liberty to challenge the impugned order

by filing appeal before District Court, if so advised.

JUDGE

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