Bombay High Court
Sayyeda Amatul Latifa Shaikh ... vs Shaikh Jaker Shaikh Maheboob And ... on 17 January, 2018
Bench: M.S. Sonak
CRA (St) No.35338/17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION STAMP NO.35338 OF 2017
Sayyed Amatul Latifa Shaikh Zafar
Pasha. ...Applicant..
Versus
Shaikh Jaker Shaikh Maheboob
and another.
...Respondents..
.....
Shri Prasad Jarare h/f Shri S.S.Thombre, Advocate for
applicant.
Shri M.M.Patil (Beedkar), Advocate for respondent No.1.
Respondent no.2 served.
.....
CORAM: M.S.SONAK, J.
DATE: 17.01.2018.
ORDER :
1] Heard learned counsel appearing for the parties.
2] Learned counsel for the applicant submits that in
terms of Section 9-A of the Code of Civil Procedure,
which is applicable in the State of Maharashtra, once the
preliminary objection is raised to the maintainability of
the suit, the learned trial Judge is obliged to frame a
preliminary issue and decide the same even before taking
up the application seeking interim relief. He submits
CRA (St) No.35338/17
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that in the present case, the learned trial Judge has
refused to frame any preliminary issue, but ordered that
this issue can be considered alongwith the remaining
issues, which will arise in the suit. The learned
counsel for the applicant submits that this is a clear
case of failure to exercise jurisdiction and, therefore,
the impugned order deserves to be revised u/s 115 of the
Code of Civil Procedure.
3] Learned counsel for the respondent no.1 i.e.
original plaintiff points out that the only preliminary
objection raised by the applicant was that the civil
Court lacks jurisdiction to entertain the suit because
the suit has been valued for the purposes of Court fees
in an amount exceeding rupees one crore. He points out
that the pecuniary jurisdiction of the Civil Judge,
Senior Division to entertain a suit of this nature is
unlimited and, therefore, the preliminary objection, as
raised, was quite frivolous and was in fact required to
be rejected at the outset.
4] There appears to be merit in the contentions of both
the learned counsel. The learned counsel for the
applicant is right in submitting that the procedure
CRA (St) No.35338/17
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adopted by the learned trial Judge in postponing the very
framing of preliminary issue or its adjudication
alongwith all the other issues, which might arise in the
suit, is incorrect. Normally, when a preliminary
objection is raised and Section 9-A of the Code of Civil
Procedure is invoked, the trial Court is obliged to frame
a preliminary issue and to decide the same before any
other issues are framed or taken up for consideration.
If the situation so requires, the trial Court can always
protect the plaintiff by grant of ad-interim relief in
terms of Section 9-A(2) of the Code of Civil Procedure.
However, framing of such issue or adjudication thereof
cannot be postponed.
5] However, learned counsel for the respondent no.1 is
also entirely right in his submission that even if a
preliminary issue as to jurisdiction were to be framed in
this matter, the same would have to be decided against
the applicant because the pecuniary jurisdiction of the
Civil Judge, Senior Division is unlimited. There is no
serious dispute that the pecuniary jurisdiction of the
learned Civil Judge, Senior Division, is unlimited and,
therefore, even if the suit were to be valued for
CRA (St) No.35338/17
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purposes of Court fees and jurisdiction in an amount
exceeding rupees one crore, there was no jurisdictional
bar to its entertainment by the Court of learned Civil
Judge, Senior Division.
6] Therefore, no useful purpose would be served by
interfering with the impugned order and directing the
civil Court to frame a preliminary issue and then
formally answer the same in favour of the plaintiff -
respondent no.1.
7] Taking into consideration the aforesaid position,
the civil revision application is dismissed. There shall
be no order as to costs.
(M.S. SONAK, J.)
ndk/c1711835.doc
