Mr. Jagdish Kashinath ChogaleVsMr. Kashinath Posu Chogale +2 more

Date: 29-07-2019
Business: Adv. Harshal Mirashi for Plaintiff present.
Adv. Pravin Singh for Defendant no.1 present.
Plaintiff is present.
CA of defendant no.1 present.
Notice of motion is to proceed without reply of defendant no.2.
Although defendant no.2 appeared but she failed to file written statement.
Therefore, suit to proceed without WS against defendant no.2.
Defendant is directed to get registered Notice of motion.
Writ of summons filed by Plaintiff relating to defendant no.3.
Writ of summons is not served upon defendant no.3.
Plaintiff has to take steps for service of writ of summons upon defendant no.3.
Plaintiff is directed to file acknowledgement or net report to show that notice has been served upon defendant no.3 in compliance of provisions of O-38 Rule-3 of CPC.
Say filed by Plaintiff on draft NM.
Order below draft Notice of motion.
Present draft notice of motion is taken out by the defendant no.1 to frame preliminary issue U/s.9-A of Code of Civil Procedure on the point of jurisdiction of this Court to try and entertain present suit.
Plaintiff opposed the notice of motion on the count that Sec.9-A of CPC has been deleted by Amendment Act of June-2018. Accordingly, he prayed for dismissal of motion.
Heard respective counsel for parties.
It is pertinent to note that Sec.9-A of CPC (Maharashtra Amendment) has been deleted in June-2018. Subsequently, by Maharashtra Act No.LXXII of 2018 dated 15.12.2018, said amendment has been substituted and it provides that (1) where consideration of preliminary issue framed under section 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.
From above amendment, it is clear that if on the date of commencement of Code of Civil Procedure (Maharashtra Amendment) Act, 2018. If preliminary issue framed under section 9A was pending for consideration, then it has to be decided and disposed of by the Court under section 9A as if said provision has not been deleted.
In present case Notice of motion is taken out on 01.04.2019 while Amendment Act came into effect on 27.06.2018. At that time said issue was not pending for decision in present matter. Therefore, defendant no.1 cannot invoke provision of section 9A of Maharashtra Amendment Act, as it stands deleted.
At this stage of interim relief application, contention of defendant no.1 to frame preliminary issue on the point of jurisdiction cannot be considered. I would like to clarify that I have not considered the aspect whether this Court has jurisdiction to entertain and try present suit. That point is kept open. With above observation following order is passed.
ORDER
1. Draft Notice of motion stands dismissed.
2. It be registered for statistical purposes.
Draft NM is disposed off accordingly.
Adj for compliance to 29.07.2019.
Nature Of Disposal: DISMISSED
Disposal Date: 29-07-2019

Main Case No: SUIT/0102045/2018
Main Cnr: MHCC010099442018
Main Filing No: 111447

Filing Number: 107839/2019
Filing Date: 16-07-2019
First Hearing Date: 29th July 2019
Decision Date: 29th July 2019
Court Number And Judge: 2-COURT 02 ADDL SESSIONS JUDGE