Dismissed

Amit Shamsadan Painter through Guardian Kalpana Shamsadan Painter v. Indian Audit and Account Department and Ors.

Bombay HC26 Apr 2010WP/3135/2010

Case brief

AI extract

What is this about?

This writ petition challenged a District Court order that set aside a temporary injunction and framed a preliminary issue on Civil Court jurisdiction. The Single Judge held the remand order was compliant with Section 9A CPC, rejected the petition, and allowed the petitioner to apply for interim relief.

What did the court decide?

The petition is rejected. The Trial Court is directed to dispose of the preliminary issue expeditiously.

Amit Shamsadan Painter through Guardian… — Civil Procedure and Limitation | Bombay HC (2010)

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Ash

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3135 OF 2010

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Shri Amit Shamsadan Painter. .. Petitioner Vs Indian Audit and Account Department & Ors. .. Respondents

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Shri Sandeep S. Koregave for the Petitioner.

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CORAM : A.S.OKA, J. DATE : 26TH APRIL, 2010

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P.C:

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. The Petitioner is the original Plaintiff. In a civil suit filed by him, an application for temporary injunction is made under Rules 1 and 2 of Order XXXIX of the Code of Civil Procedure, 1908 ( hereinafter referred to as the said Code ). The application for temporary injunction was partly allowed. The first Defendant preferred an appeal against the said order in the District Court. The present Petitioner filed cross objections. Subsequently, the first Defendant filed a pursis seeking withdrawal of the appeal. By the impugned order, the learned District Court has set aside the order passed below the application for temporary injunction and has directed that the issue of jurisdiction of the Civil Court be tried as a

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preliminary issue.

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The learned counsel appearing for the Petitioner submitted that the Civil Court had jurisdiction to entertain and try the suit in view of the fact that the reliefs are sought against the 1^st and the 6^th Defendants. He submitted that the Appellate Court had committed an error by setting aside the order of temporary injunction and by directing that the preliminary issue of jurisdiction be framed.

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I have considered the submissions. At the time of hearing of an appeal arising out of the application for temporary application under Rules 1 and 2 of Order XXXIX of the said Code, the Appellate Court found that the objection to the jurisdiction of Civil Court was taken. The mandate of Section 9A of the said Code is that the said objection has to be decided as a preliminary issue before the application for interim relief is finally heard. It is permissible for the Court to hear the application for interim relief along with the preliminary issue.

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As it was necessary to comply with the requirements of Section 9A of the said Code, the learned District Judge has passed an order of remand with a direction to the Trial Court to decide the preliminary issue. No fault can be found with the approach of the learned District Court. Result of the impugned order is that the application at Exhibit 5 made by the Petitioner stands restored. It will be open for the Petitioner to apply to the Trial Court for grant of appropriate adinterim relief of

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injunction in accordance with Section 9A (2) of the said Code. If such an application is made for grant of adinterim relief, the Trial Court will have to decide the same on its own merit.

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5. Hence, I pass the following order.

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(a) The Petition is rejected. The Trial Court will dispose of the preliminary issue as expeditiously as possible.

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(b) It will be open for the Petitioner to apply for adinterim relief of injunction in terms of Subsection (2) of Section 9A of the said Code. If such an application is made, the same shall be decided by the Trial Court on its own merits without being influenced by the impugned judgment and order.

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(c) It is made clear that the District Court has not made any adjudication on the issue of jurisdiction and all contentions of the parties on the said issue are kept open.

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(A.S.OKA, J)

Amit Shamsadan Painter through Guardian Kalpana Shamsadan Painter v. Indian Audit and Account Department and Ors.

Case brief

What is this about?

What did the court decide?

Amit Shamsadan Painter through Guardian Kalpana Shamsadan Painter v. Indian Audit and Account Department 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

Coram

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