Partly allowed

Ramanuj Raghuvar Maurya v. Ajay Kumar Bhulan Maurya

Bombay HC28 Mar 2011AO/187/2011

Case brief

AI extract

What is this about?

The High Court allowed this appeal and quashed the impugned order dated 8th December 2010. It held that the trial Court was mandatory bound to decide jurisdiction as a preliminary issue under Section 9-A CPC since the objection was specifically raised in a written statement adopted as a reply to the notice of motion. Consequently, the Notice of Motion was restored.

What did the court decide?

The impugned order dated 8.12.2010 is quashed; N.O.M. No. 1490 of 2010 is restored; trial Court directed to comply with Section 9-A CPC.

Ramanuj Raghuvar Maurya Vs Ajay Kumar Bhulan… — Civil Procedure and Limitation | Bombay HC (2011)

78 ao.187.11

ndm

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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APPEAL FROM ORDER NO. 187 OF 2011

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Ramanuj Raghuvar Maurya and another. ... Appellants

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Versus

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Ajay Kumar Bhulan Maurya. ... Respondent

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Mr. Bhavesh Parmar i/b Ms.Sandhya A. Mailagir for the Appellants. Mr. Pramit Mishra for the Respondent.

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CORAM : A.S.OKA, J. DATE : 28th March, 2011.

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ORAL JUDGMENT:

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1 Admit. The learned counsel appearing for the Respondent

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waives service.

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2 Considering the limited challenge, the appeal is taken up for

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final disposal immediately.

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3 The Appellants are the original defendants and the

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78 ao.187.11

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Respondent is the original plaintiff. The challenge in this appeal from

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order is to the order dated 8th December, 2010 passed by the trial Court

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on notice of motion for temporary injunction taken out by the Respondent.

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4 The learned counsel appearing for the Appellants invited

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attention of the Court to the written statement and in particular paragraph

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Nos.3 (c) and 3(d). He submitted that in paragraph No.3, objection to the jurisdiction of the trial Court was raised in accordance with Section 9-A of

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the Code of Civil Procedure, 1908 (hereinafter referred to as “the said

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Code”). He pointed out that by filing an affidavit, the written statement

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has been adopted as a reply to the notice of motion. He submitted that

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the trial Court has not complied with the mandatory provisions of Section

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9-A of the said Code and therefore, the impugned order is illegal.

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5 The learned counsel appearing for the Respondent

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submitted that the Appellants did not press the issue of jurisdiction at the

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time of hearing of the notice of motion. He submitted that as the issue

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was not pressed, now the Appellants cannot raise the said contention.

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78 ao.187.11

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6 I have given careful consideration to the submissions. Sub-

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Section (1) of Section 9-A of the Code of Civil Procedure, 1908 (as amended for the State of Maharashtra) provides that if at the time of

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hearing of application for grant of injunction, an objection to the jurisdiction of the Court to entertain such suit is taken by the parties to the

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suit, the Court is under an obligation to determine the issue of jurisdiction

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as a preliminary issue. The written statement was specifically adopted by

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the Appellants as their reply to the notice of motion for injunction. In the written statement, issue under Section 9-A of the said Code has been specifically raised by contending that the suit has been incorrectly valued under Section 6 (iv) (j) of the Bombay Court Fees Act, 1959 and if the suit

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is valued properly, the City Civil Court will not have pecuniary jurisdiction to entertain the suit. As the issue of jurisdiction was raised specifically, in

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view of mandate of Section 9-A of the said Code, the issue ought to have

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been decided by the trial Court as a preliminary issue.

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Therefore, the trial Court has committed an illegality. In the

78 ao.187.11

circumstances, the impugned order will have to be set aside. The

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learned counsel appearing for the Respondent pointed out that on 25th

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June, 2010 there was an ad-interim injunction granted by the trial Court, which was operative till the disposal of the notice of motion. The said ad-

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interim relief will continue to operate till the notice of motion is decided

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afresh after complying with Section 9-A of the said Code.

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8 Hence, I pass the following order:

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i. The impugned order dated 8th December, 2010 is quashed and set aside and Notice of Motion No. 1490 of 2010 is restored to the file ;

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ii. The trial Court is directed to comply with requirements of Section 9-A of the said Code ;

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iii. The issue of jurisdiction and the notice of motion shall be decided expeditiously ;

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iv. Till the disposal of the notice of motion, the adinterim relief granted on 25th June, 2010 by the trial Court will continue to operate ;

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v. This order will not preclude the Respondent from making an application to the trial Court for grant of further ad-interim relief ;

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78 ao.187.11

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vi. All contentions of the parties on merits are kept open ;

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vii. The appeal from order is partly allowed with not order as to costs ;

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viii. Civil Application No. 287 of 2011 does not survive and the same is disposed of.

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[ A.S.OKA, J ]

Ramanuj Raghuvar Maurya v. Ajay Kumar Bhulan Maurya

Case brief

What is this about?

What did the court decide?

Ramanuj Raghuvar Maurya v. Ajay Kumar Bhulan Maurya

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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