Allowed

Maria Suraj Co-Operative Housing Soceity Ltd., v. Manual Gonsalves Trust and Ors.

Bombay HC1 Mar 2005WP/7452/2004

Case brief

AI extract

What is this about?

The Bombay High Court in civil appellate jurisdiction set aside an order that incorrectly proceeded with a notice of motion instead of trying a preliminary issue regarding pecuniary jurisdiction under Section 9A CPC. The court directed the trial court to set aside the order and allowed the petitioner to frame other maintenance-related issues later.

What did the court decide?

The impugned order is set aside; the petitioner is at liberty to press for framing of the other two issues at the appropriate stage.

Maria Suraj Co-Operative Housing Soceity Ltd… — Civil Procedure and Limitation | Bombay HC (2005)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 7452 OF 2004

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Maria Suraj Co-operative Housing Society Ltd. ... ... ... Petitioner.

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Versus

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Manual Gonsalves' Trust & Ors. ... .... Respondents.

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Ms. Preeti Shah for the Petitioner. Mr. R. A. Thorat for Respondent No.2.

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CORAM: S. A. BOBDE, J.

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DATED : MARCH 1, 2005.

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P.C. :

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Rule.

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2. Learned Counsel appearing for respondent No.2 waives

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service of Rule. By consent, Rule made returnable and heard

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forthwith.

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This petition is by Defendants against the order dated 3^rd

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September, 2004 by which the learned trial Court has held that the Issue of pecuniary jurisdiction is liable to be tried, but has nonetheless decided to proceed with the notice of motion.

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Having heard the learned Counsel for the parties, it is

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clear that the impugned order is liable to be set aside. The petitioner applied for framing of the following three Issues :-

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(1) Whether this Honourable Court has no jurisdiction to entertain and try this suit ?

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(2) Whether the suit is bad for want of Notice under Section

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164 of the Maharashtra Co-operative Societies Act, 1960 ?

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(3) Whether the Suit is bad for want of Notice under section

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527 of the Mumbai Municipal Corporation Act, 1888 ?

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It is clear that only proposed Issue No.1 pertains to pecuniary

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jurisdiction of the court and liable to be tried under Section 9A of

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the Code of Civil Procedure. The other two Issues are not to be

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tried under Section 9A of the Code of Civil Procedure. On this application, the trial Court has framed the following Issue as a preliminary Issue :

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(1) Whether all the defendants prove that this suit is not maintainable considering the pecuniary jurisdiction of this

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Court ?

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Having done so, it is clear that the trial Court ought not

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to have decided to proceed with the notice of motion, but ought to

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have decided the Issue under Section 9A of the Code of Civil Procedure. Hence, the impugned order is set aside. The petitioner shall be at liberty to press for framing of the other two Issues at the appropriate stage.

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Rule made absolute in the above terms. This petition is disposed of accordingly. There shall be no order as to costs.

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Sd/-

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S. A. BOBDE, J.

Maria Suraj Co-Operative Housing Soceity Ltd., v. Manual Gonsalves Trust and Ors.

Case brief

What is this about?

What did the court decide?

Maria Suraj Co-Operative Housing Soceity Ltd., v. Manual Gonsalves Trust and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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