Final Order 1

Order Details: Other
Pdf Text: 12.02.2019
SU 984/16
@ NM
1917/16
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Swapnil Mhatre for Plaintiff present.
Adv. Apeksha Munot for Defendant present.
Draft NM filed by Defendant t.o.r.
Leave granted to register it.
Copy of NM served on other side.
K.B.
L.O.
Heard both sides.
Order below Draft Notice of Motion
Read draft notice of motion and say. Heard respective counsel for parties.
Notice of motion is taken out to recall order dated 05.07.2018 whereby this court has
directed to decide preliminary issue along with other issues to be framed under Order
XIV of CPC.
Plaintiff has raised objection to notice of motion and also submitted that appropriate
order be passed.
It is pertinent to note that my learned Predecessor has framed preliminary issue on
17.06.2017 on the point of pecuniary jurisdiction of this Court to try and entertain the
suit keeping in view section 9A of CPC. Considering the fact that section 9A of CPC has
been deleted, my learned Predecessor as per order dated 05.07.2018 passed an order
that the preliminary issue shall be deemed to be an issue framed under Order XIV of CPC
and will be decided along with other issues. The evidence as recorded for preliminary
issue will be considered at the time of final disposal of suit itself. It is pertinent to note
that an Act to amend Code of Civil Procedure (Maharashtra Amendment) Act, 2018 has
been enacted vide Amendment No.LXXII of 2018. By said amendment it has been
clarified that in section 3 of Code of Civil Procedure (Maharashtra Amendment) Act,
2018 for clause (1) following clause shall be substituted and shall be deemed to have
been substituted with effect from 27th June 2018, being the commencement of the said
Act namely (1) where consideration of a preliminary issue framed under 9A is pending
on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment)
Act, 2018 (hereinafter, in this section, referred to as “the Amendment Act”), the said
issue shall be decided and disposed of by the Court under section 9A, as if the said
section 9A has not been deleted.
In present matter preliminary issue framed under section 9A was pending on the
date of commencement of Code of Civil Procedure (Maharashtra Amendment) Act,
2018. So, in view of above amendment it has to be decided and disposed of by this
Court under section 9A as said amendment has been applied retrospectively with effect
from 27.06.2018. Therefore, order dated 05.07.2018 needs to be recalled in view of
amending Act as pointed above and notice of motion is allowed as under:
ORDER
1. Preliminary Issue as framed on 17.06.2017 shall be decided in accordance with
section 9A of CPC (Maharashtra Amendment) in view of Amendment Act No.LXXII of
2018. Therefore, parties to adduce their evidence in relation to preliminary issue.
2. Accordingly, notice of motion is disposed of.
3. For statistical purpose notice of motion be registered and after registration it be
removed from board in view of present order.
Earlier order to continue till next date.
Adj for R/E to 19.03.2019.
Judge
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