RAJAN DHANSUKHLAL VORA Vs. DINESH BACCHUBHAI PAREKH

JUDGEMENT

(1.) This appeal from order is directed against the order passed by the Judge, City Civil Court on 3rd April 2010 in S.C. Suit No. 3203/2004 directing the counsel for the parties to make submission on the Notice of Motion No. 1682/2009 on merits with a view to decide as to whether the preliminary issue can be framed at the particular stage of the proceeding. The appellant is the original defendant No. 3. The respondent No. 1 is the original plaintiff who presented the suit being S.C. Suit No. 3203/2004 claiming following substantial reliefs:

(2.) In the pending suit, the plaintiffs have taken out notice of motion claiming interim relief which came to be numbered as Notice of Motion No. 3063/2004. There were three prayers made in the notice of motion. The learned trial Judge found prayer (a) is beyond the scope of the suit, prayer (b) is in respect of appointment of Court Receiver, whereas prayer (c) is for injunction against defendant No. 3 restraining him from parting with the possession of the suit premises. The learned trial Judge passed an order on 8th June 2005 and directed the plaintiffs and defendants to lead evidence in support of the notice of motion on the next date. The suit along with the notice of motion was adjourned for consideration after recording of evidence. It was also directed to all the parties to exchange their affidavits on which they wanted to rely.

(3.) In the pending suit, defendant No. 3 took out notice of motion being Notice of Motion No. 1682/2009 and requested the Court to frame the issue of pecuniary jurisdiction of the Court as preliminary issue and decide the same as provided under order 9A of Code of Civil Procedure, 1908 (C.P.C.). The plaintiff gave no objection to frame the issue as prayed for in Notice of Motion No. 1682/2009 by recording endorsement on the notice of motion. While considering the notice of motion, the learned trial Judge framed preliminary issue as "Whether this Court has pecuniary jurisdiction to try and entertain the suit -. Both parties also assured the Court that they will not lead any oral evidence in support of the preliminary issue. The matter was adjourned to 20th November 2009 for hearing on preliminary issue. When the notice of motion was taken up for hearing by the Court, it was argued by the counsel appearing for the plaintiff that his junior has inadvertently recorded no-objection on the notice of motion for framing preliminary issue. It is contended, however, that since the no-objection was given and the issue has already been framed, the issue so framed needs to be tried along with other issues involved in the matter. It was further contended that the issue raised by the defendant No. 3, in any case, cannot be tried as preliminary issue. The Court, after hearing both parties, deemed it fit to decide Notice of Motion No. 1682/2009 on merits as it was not disposed of. Hence it is ordered to both parties to make their submissions on Notice of Motion No. 1682/2009 on merits so that it could be decided whether the preliminary issue can be framed at relevant stage and, accordingly, adjourned the motion to 20th April 2010.