MANUBHAI VADILAL SHAH Vs. HIRALAL KARSONDAS BHAKTA

JUDGEMENT

(1.) THIS Chamber Summons is taken out by defendant No. 1 wherein he requested to revoke the leave granted by this Court under Clause XII of the Letters Patent Act on 12-2-1997. In deciding this case, it is necessary to state certain facts relevant to this case. The plaintiff/respondent No. 1 filed a Suit No. 605 of 1997 before this Court after obtaining leave under Clause XII of the Letters Patent, the said suit is for specific performance of the contracts which was exhibited as "c" and "d" to the plaint. The said agreements sought to be specifically performed is for the sale of the immovable properties which is situated in Bhayandar, District Thane which is admittedly outside the jurisdiction of this Court. Along with the plaint, the plaintiff has moved an injunction application by way of Notice of Motion No. 1189 of 1997 to which reply has been filed by defendant No. 1 opposing that Notice of Motion. In para 2 of that affidavit in reply, defendant No. 1 has stated thus : "at the outset, I say that this Honble Court has no jurisdiction to try and entertain the suit. The plaintiff has his official address at Sheetal Park, Sheetal Nagar, Mira Road, District Thane. The suit property is situated within the District of Thane. The suit agreements are entered into within the District of Thane and except the defendant No. 1, all the other defendants reside at Thane and within the District of Thane. The suit for specific performance is thus not maintainable in this Honble Court and the same is liable to be dismissed and be accordingly dismissed. "

(2.) HE says that the suit is not maintainable in this Court as none of the ingredients required to be fulfilled under Clause XII of the Letters Patent are satisfied and the leave of this Court is obtained by suppressing material facts from this Court. The learned Counsel for the applicant, Mr. Sakhardande has contended that since the first defendant has raised the question of territorial jurisdiction at the first instance, it is incumbent upon this Court to decide that question first before proceeding further. The learned Counsel for the plaintiff Mr. Shukla has however, contended that the suit has been filed as early as 1997 and several orders have been passed by this Court and parties have taken benefits under those orders. In this circumstances, the first defendant, cannot at this stage raise this question of jurisdiction. According to me, this is not proper answer to the question raised by defendant No. 1 in his Chamber Summons. Whenever a jurisdictional question particularly of territorial raised that has to be decided first before proceeding the matter any further. This is a part of public policy and to achieve this objective, section 9-A of the Civil Procedure Code has been introduced. Section 9-A of the Code of Civil Procedure which is specifically brought into force in State of Maharashtra postulates that if in any suit jurisdictional question is arising no interim application can be considered before the jurisdiction question is decided. Section 9-A of the Code of Civil Procedure reads as under:

(3.) THE legislative intention behind this section is quite obvious. If a party challenges jurisdiction of this Court and unless that question is decided, it will be wasteful of the time for the Court if it embarks upon to decide other issues raised in the case. If the litigations are to proceed with without deciding jurisdictional issue and after lapse of years, at the fag end of the litigation if that question is taken up and objection is upheld, the entire time and energy of the Court and litigants spent on such suit will become wasteful. Therefore, if the jurisdictional question is raised that has to be decided first. In the circumstances, the lapse of two years, and taking benefits of the orders by the parties, is quite immaterial and irrelevant as far as the deciding the question of jurisdiction which is called upon to decide by this Court is concerned.