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Whether order passed in application for temporary injunction U/S 9A(2) of CPC is appealable?

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 7884 of 2017

Decided On: 04.01.2018

Anand
Vs.
Shewalkar Developers Ltd.

Hon’ble Judges/Coram:Z.A. Haq, J.
Citation: 2018 (2) MHLJ 381

1. Heard.

2. RULE. Rule made returnable forthwith.

3. The petitioner has filed civil suit praying for decree for declaration that he is in settled legal possession of the suit property. The petitioner/plaintiff has further prayed for decree for injunction restraining the defendants from disturbing peaceful possession of the plaintiff over the suit property.

4. In this civil suit, the defendant has filed application (Exh. 13) under Order 7 Rule 11 read with Section 9A and Section 151 of the Code of Civil Procedure contending that the claim of the plaintiff is barred by limitation, and praying that the plaint be rejected. This application is pending for decision.

The plaintiff had filed application (Exh. 37) under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure praying for mandatory injunction directing the defendant to restore possession of the suit property to the plaintiff.

As the application (Exh. 13) filed by the defendant is pending for adjudication, the plaintiff had filed an application (Exh. 50) under Section 9A(2) read with Section 151 of the Code of Civil Procedure praying that pending adjudication of the application (Exh. 13) interim order be passed restraining the defendant from undertaking any construction on the suit property.

By the impugned order, the learned trial Judge has dismissed the applications (Exh. 37 and Exh. 50). Being aggrieved by this order, the petitioner/plaintiff has filed this writ petition.

5. The order passed on application (Exh. 37) is appealable under Order 43 Rule 1(r) of the Code of Civil Procedure. The learned advocate for the petitioner has submitted that though the order passed on application (Exh. 37) is appealable, the application (Exh. 50) is also decided by the same composite order and the order dismissing the application (Exh. 50) is not appealable as that order is passed under Section 9A(2) of the Code of Civil Procedure. It is argued that in this background, the petition is required to be entertained by this Court.

6. Section 9A of the Code of Civil Procedure (as applicable in the State of Maharashtra) provides that when at the hearing of the application relating to interim relief in civil suit, objection to the jurisdiction of the Court is taken, such issue has to be decided by the Court as preliminary issue. Subsection (2) of Section 9A of the Code of Civil Procedure (as applicable to the State of Maharashtra) provides that notwithstanding anything contained in sub-section (1), the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction of the Court. Thus, sub-section (2) of Section 9A of the Code of Civil Procedure confers jurisdiction on the Court to grant interim relief though an objection is raised by the defendant on the point of jurisdiction of the Court to entertain the civil suit.

7. After considering the matter and hearing the advocates for the parties, I find that the point which arises for consideration is, whether Section 9A(2) of the Code of Civil Procedure is substantive provision conferring power/jurisdiction on the Court to grant interim relief or it is enabling provision providing that pending determination of the preliminary issue as to the jurisdiction, the Court can grant interim relief.

8. The advocate for the petitioner has argued that Section 9A(2) of the Code of Civil Procedure is a substantive provision. However, in my view, Section 9A(2) of the Code of Civil Procedure (as applicable to the State of Maharashtra) is not a substantive provision and is an enabling provision permitting the Court to grant interim relief as it may consider necessary pending determination of the preliminary issue as to the jurisdiction of the Court to entertain and decide the civil suit. It is well settled that the Court can grant interim relief if it has jurisdiction to grant that relief as final relief (please refer to the judgment given in the case of Cotton Corporation of India v. United Industrial Bank, reported in MANU/SC/0375/1983 : AIR 1983 SC 1272). The power to grant temporary injunction is conferred in aid or as auxiliary to the final relief that may be granted and if the final relief cannot be granted by the Court in terms as sought for by the party, temporary relief in the same terms cannot be granted.

9. Keeping the above principle in mind it has to be held that the prayer for temporary injunction made by the plaintiff in the application (Exh. 50) pending determination of the issue as to the jurisdiction of the Court is nothing but the interim relief sought in aid of the final relief prayed for by the plaintiff by the application (Exh. 37). In the application (Exh. 37), the plaintiff prayed for interim order restraining the defendants from undertaking any construction over the suit property. By the application (Exh. 50) the plaintiff sought the same interim relief restraining the defendant from undertaking any construction over the suit property till adjudication of the application (Exh. 13) filed by the defendant. It is clear that the plaintiff had filed application (Exh. 50) only to seek interim relief pending the adjudication of the objection raised by the defendant that the Court has no jurisdiction to entertain and decide the civil suit. If examined from this angle, I am of the view that separate application under Section 9A(2) of the Code of Civil Procedure is not required and the Court can grant interim relief in terms of the prayer made in the substantive application filed under Order 39 of the Code of Civil Procedure till adjudication of the issue of jurisdiction of the Court to entertain and decide the civil suit. Therefore, the order passed on application (Exh. 50), which, though styled as application under Order 9A(2) read with Section 151 of the Code of Civil Procedure, is in effect an order passed under Order 39 of the Code of Civil Procedure and it will be appealable under Order 43 Rule 1(r) of the Code of Civil Procedure.

In view of the above, I am not inclined to entertain the writ petition.

The writ petition is dismissed. In the circumstances, the parties to bear their own costs.

The petitioner will be at liberty to challenge the impugned order by filing appeal before District Court, if so advised.

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