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RadhakishIn N. Advani Vs. Sheila Gobind Mirchandani and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberA.F.O. No. 48 of 1975
Judge
Reported inAIR1977Bom35; 1976MhLJ456
ActsCode of Civil Procedure (CPC), 1908 - Sections 9-A
AppellantRadhakishIn N. Advani
RespondentSheila Gobind Mirchandani and anr.
Appellant AdvocateP.L. Nain and ;G.V. Bansi, Advs.
Respondent AdvocateKeshavdas Dalpatrai, Adv.
Excerpt:
.....advocate for the 1st defen-aant, that the learned trial judge has done precisely the reverse. nain's contention that the learned trial judge has first of all failed to expeditiously determine the question of jurisdiction and that secondly contrary to the mandate of section 9-a of the civil procedure code he has adjourned the application for interim relief, in the form of the notice of motion, to the hearing of the suit. nain, is right and that is precisely how the learned judge has fallen in error. the emphasis is on the ad interim nature of the relief, precisely because an ad interim order cannot be converted into an interim order without hearing the application itself in the form of the notice of motion. it is good of mr......suit. 2. it requires to be stated at once that the 1st defendant in reply to the application for interim relief took up the plea that the city civil court, bombay, had no jurisdiction to entertain and try this suit and/or grant any interim relief inter alia on the ground that the value of the subject-matter of the suit, viz., a fiat in brothers co-operative housing society ltd., mahim, being rs. 35,000/-, exceeded the pecuniary jurisdiction of the court secondly it was contended that the city civil court would have no jurisdiction because the plaintiff was claiming under a will left by one jethmal mulchand malkani (who died on the 24th of october, 1972) unless a probate of the will was obtained from the high court. 3. it would appear that the learned judge did not appreciate the scope.....
Judgment:

1. This is an appeal from an order of a Judge of the City Civil Court, Bombay, (Judge Guttal) whereby on a Notice of Motion taken out by the plaintiff he granted an interim injunction in terms of prayer (c) of the Notice of Motion and adjourned the hearing of the Notice pf Motion itself till the hearing of the suit.

2. It requires to be stated at once that the 1st defendant in reply to the application for interim relief took up the plea that the City Civil Court, Bombay, had no jurisdiction to entertain and try this suit and/or grant any interim relief Inter alia on the ground that the value of the subject-matter of the suit, viz., a fiat In Brothers Co-operative Housing Society Ltd., Mahim, being Rs. 35,000/-, exceeded the pecuniary jurisdiction of the Court Secondly it was contended that the City Civil Court would have no jurisdiction because the plaintiff was claiming under a will left by one Jethmal Mulchand Malkani (who died on the 24th of October, 1972) unless a probate of the will was obtained from the High Court.

3. It would appear that the learned Judge did not appreciate the scope and ambit of Section 9-A of the Civil Procedure Code, which was introduced in 1970. Now, Section 9-A reads as follows:--

'9-A. (1) if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of 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 preliminary issue before granting or setting aside the order granting the interim relief. Any such application, shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned 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.'

4. A plain reading of the section discloses that whenever an objection to; the jurisdiction of the Court is taken to entertain a suit in which an application for granting or setting aside an order granting an interim relief is made, then it becomes a duty of the Court to proceed to determine, at the hearing of such application the issue as to jurisdiction as a preliminary issue before granting or setting aside the order granting interim relief.

5. In other words, the Court is enjoined to first determine the question of jurisdiction as a preliminary issue not at the hearing of the suit but at the hearing of the application for interim relief Then there is a further provision that any such application, that is to say, the application for granting or setting aside an order granting any interim relief shall be heard and disposed of by the Court as expeditiously as possible, and what is perhaps more important it 'shall not in any case be adjourned to the hearing of the suit.'

6. It is the grievance of Mr. Nain, the learned Advocate for the 1st defen-aant, that the learned trial Judge has done precisely the reverse.

7. Now, the order which the learned trial Judge passed reads as follows:--

'On the plaintiff's Notice of Motion No. 2135 dated 7-5-1974 there shall be an interim injunction in terms of prayer (c). Hearing of the Notice of Motion is adjourned till the hearing of the suit.'

8. It is Mr. Nain's contention that the learned trial Judge has first of all failed to expeditiously determine the question of jurisdiction and that secondly contrary to the mandate of Section 9-A of the Civil Procedure Code he has adjourned the application for interim relief, in the form of the Notice of Motion, to the hearing of the suit.

9. I am afraid, Mr. Nain, is right and that is precisely how the learned Judge has fallen in error.

10. It requires to be stated .that there is no prohibition even when the question of the jurisdiction of the Court is involved for the Court to grant an ad interim relief. The emphasis is on the ad interim nature of the relief, precisely because an ad interim order cannot be converted into an interim order without hearing the application itself in the form of the Notice of Motion. The learned Judge has not heard the Notice of Motion as such, because he adjourned it to the hearing of the suit.

11. Mr. Keshavdas Dalpatrai, the learned Advocate for the plaintiff-respon-dent, contended that the word 'ad' may have been inadvertently left out so that what the learned Judge was in fact doing was to grant an ad interim injunction and then hear the Notice of Motion at the time of the hearing of the suit where the preliminary issue as to the jurisdiction would be considered. It is good of Mr. Keshavdas Dalpatrai to argue in this manner, but I am afraid that does not seem to be the case. Even assuming that what the learned Judge intended to grant was an ad interim injunction and not an interim injunction, the fact that he had. adjourned the hearing of the Notice of Motion to the hearing of the suit speaks for itself.

12. Section 9-A of the Civil Procedure Code, as I find it, is in the clearest possible terms and, in my opinion, it would be the duty of the Court in such matters to forthwith hear the application for granting or setting aside an order granting an interim relief and determine the question of jurisdiction of the Court wherever it is taken. It is only after the question of jurisdiction has been put away that further proceedings may go on.

13. It is substantially clear that the purpose and intent of this legislation (which is expressed fortunately in the clearest of terms) is that if a suit is capable of being disposed of on the question of jurisdiction it should be so disposed of forthwith before any further proceedings are taken or the suit is allowed to be in some docket for years to come and becomes part of the arrears about which we hear so much.

14. In the result, the appeal is allowed, and the order of the learned trial Judge is modified so that there will now be an ad interim injunction in terms of prayer (c) of the Notice of Motion pending the hearing and final disposal of the Notice of Motion.

15. On Mr. Nain's request it is clarified that the words 'dealing with' used in the ad interim order will not include carrying on necessary repairs in the flat or doing anything for the preservation of the property.

16. In the circumstances o the case there will be no order as to costs.

17. Order accordingly.


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