Final Order 1

Order Details: Other
Pdf Text: 30.09.2019
SU 797/14
NM 1158/14
NM 1586/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Binali Dave for Plaintiff present.
Adv. Nandini Chittal for defendant present.
Say filed by plaintiff to application Ex-4. t.o.r.
Copy given to other side.
KB
LO
Already heard both sides on NM No.1586 of 2019.
Heard advocate for both sides on application Exh.4
COMMON ORDER PASSED BELOW NOTICE OF MOTION NO.1586 OF 2019 AND
EXHIBIT 4
Notice of motion is taken out by defendant to recall order dated 2nd August, 2018 and to fix the
date for hearing on preliminary issue framed under section 9A of CPC. Defendant has also filed
application vide Exh.4 for condoning delay caused in filing above referred notice of motion.
It is contended that delay of 90 days has been caused in taking out notice of motion and prayed
to condone said delay.
Plaintiff opposed the said application on the count that delay caused is due to gross negligence
on the part of applicant/ defendant. Plaintiff has also opposed notice of motion on the count that no
case is made out to recall the order dated 02.08.2018.
It is pertinent to note that preliminary issue was framed by my learned predecessor on
03.04.2014. Thereafter, matter was adjourned from time to time for hearing on preliminary issue.
Said issue was decided by my learned Predecessor on 31.10.2015 and held that this Court has
jurisdiction to entertain and try the present suit. Said order was challenged by the defendant before
Hon'ble High Court in CRA No.22 of 2016 and as per order dated 22.01.2016, impugned order
dated 31.10.2015 was set aside by Hon'ble High Court with consent of parties and directed this
Court to decide preliminary issue of jurisdiction after considering material on record as also after
considering pleas taken by the defendant in affidavit and further, directed this court to give reasons
about the applicability of otherwise of the decision of the Hon'ble Apex Court in the case of
Mansukhlal Dhanraj Jain. Thereafter, matter was again adjourned for hearing on preliminary
issue. My learned predecessor vide order dated 02.08.2018 passed order considering the recent
amendment in section 9A of CPC, ordered that, preliminary issue as framed in the suit shall be
deemed to be issue framed under Order 14 of CPC and shall be decided along with other issues.
It is pertinent to note that present notice of motion is taken out after coming into force
Maharashtra Act No.LXXII of 2018 on 15.12.2018. Said amendment provides that Where
consideration of preliminary issue framed under section 9A is pending on the date of
commencement of Code of Civil Procedure (Maharashtra Amendment) Act, 2018, the said issue
shall be decided and disposed off by the Court under section 9A, as if said section 9A has not been
deleted. In view of this legal position it is clear that on the date of coming into force i.e. 27.06.2018
of amendment deleting section 9A of CPC preliminary issue relating to jurisdiction was pending for
decision by this Court. Therefore, in view of amendment as pointed above it is necessary to decide
preliminary issue under section 9A of CPC. It is mandate of law. In the facts of matter delay
caused in preferring present notice of motion is condoned. Hence pass following order
ORDER
1. Application Exh.4 is allowed.
2. Notice of Motion No.1586 of 2019 is allowed and made absolute in terms of prayer clauses (a)
and (b).
3. Accordingly, application and notice of motion stands disposed off.
Matter is posted and adjourned for preliminary issue to 02.11.2019 at 11.00 a.m.
Judge
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