11. Section 9-A of the Code, which is the product of the amendment by the Code of Civil Procedure (Maharashtra Amendment) Act, 1970 under Maharashtra Act No. LXV of 1977 when the said section has been inserted, consists of two parts. The first sub-clause envisages that if at the hearing of an application for granting or setting aside an order granting any interim relief, including injunction and appointment of receiver made in a suit, an objection to the jurisdiction of the Court to entertain the suit is taken by any of the parties, then the Court shall proceed to determine at the hearing of such an application the issue about the jurisdiction as preliminary issue before granting or setting aside the order already granted for interim relief. Sub-clause (2) provides that in spite of the provisions contained in sub-clause (1), pending the determination of such an application vis-a-vis the claim of jurisdiction an interim relief can be granted.
12. The combined reading of these two clauses of the said provisions would entail into projecting certain logical and inescapable deductions. It is contemplated that in the first instance, after filing of the suit, there comes into existence an application for interim relief. Such a prospective interim relief can be in different shape and thus can be by way of injunction, appointment of receiver or otherwise, and this last residuary clause would include other interim reliefs. Either of the two situations in that behalf can be visualised. It may be that ad-interim injunction or any interim relief would be granted in a notice of motion till the service of the said notice on the other side or that this ad-interim relief may also be postponed till that time. The contesting party, therefore, on its appearance or any time thereafter ask for setting aside the ad-interim relief, if so granted earlier or oppose the granting of any such interim relief if not granted so far, and it is in that context that the provision contemplates an application either for granting or for setting aside an order granting any interim reliefs. If a motion or an application vis-a-vis the jurisdiction of the Court to entertain the suit itself is made by the other contesting party, then it must be attended to immediately. This is obviously in consonance with the legislative intent in inserting this provision that a suit which is capable of being disposed of on the basic premise of jurisdiction, then it should be done so before any further proceeding is taken or the suit is allowed to linger and secondly, if the very foundation of the jurisdiction is brought under controversy, and if it is spelt and if the said plea is ultimately upheld, then the Court would obviously have no jurisdiction even to grant an interim relief. Such a motion can be made even at the inception, and need not be necessarily at a later stage. However, the same can be made even at the time of granting of the interim relief, and it can equally be made at the time of setting aside such an interim relief, if already granted. Once such an application or a motion is initiated by one of the parties, then the necessary obligation ipso facto devolves on the Court with the resultant consequence that the question of interim relief has got to be shelved in the back-ground, though temporarily, and to bring on the fore-front the main motion about the jurisdiction. The Court is further enjoined to proceed to hear such an application or a motion and determine the same. For that purpose, it is prescribed that the same should be treated as a preliminary issue in the suit, and it is further prescribed that this has to be done before granting of the said interim relief or if any relief so granted, then before setting it aside. The application for interim relief has got to be heard and disposed of expeditiously and a further qualification is cast that in view of the objection to the jurisdiction, the matter need not be adjourned to the hearing of the suit. This and the other aspect indicated earlier manifestly suggest the legislative intent that in the first instance the objection to jurisdiction itself should be dealt with expeditiously and obviously before granting the interim relief; that it should not be responsible for lingering of the suit, and that is why it should be treated as a preliminary issue and thirdly the decision of such a preliminary issue need not be postponed to the full dressed trial on merits on other issues, and thus its hearing and adjudication is brought in advance and lastly the application for interim relief should also need not be postponed to the final hearing of the suit.
13. When sub-clause (2) comes into operation, it is not as if that the entire field for the interim relief is re-opened, but what is contemplated by that provision is that if the exigencies of the situation impress the Court that either of the sides should be protected without wasting any time, howsoever short it may be, which may be consumed for determining the said preliminary issue, then the Court may on merits grant such an interim relief as it thinks proper. There are obviously two qualifications annexed by this provision. The first is that such an interim relief, even for such an interim period is to be given only if the Court is satisfied that some protection is necessary even during the short span of time during the pendency of the application taking objection to the jurisdiction. And such concession can be bestowed in favour of the party even at the time of the motion made by the other side regarding the jurisdiction of the Court, but certainly before its determination. Lastly, there is a qualification or a limitation about the tenure of such an interim relief, viz., that if such an interim relief is granted, then it shall hold good and be in force only up to the moment when the application or motion vis-a-vis the jurisdiction is heard and finally decided on merits treating the same as a preliminary issue.
14. It is true that it may be permissible for the Court to adopt a composite hearing of the said preliminary issue and the interim relief and even to determine the preliminary issue at such hearing and it may even be conceivable in certain circumstances such determination on both counts by a composite order. However the governing clause remaining intact would enunciate that the adjudication of the preliminary issue would precede the decision of the interim application, the applicability of which would be insisted upon equally in such a composite hearing or even in a composite order recorded on both counts, which principle is obviously founded on the sound premise that it is only the finding or decision on the preliminary issue of jurisdiction would govern the further jurisdiction of the Court to grant the interim relief. However, in that event it cannot be underestimated that though existing in the same proceeding, both matters would run on different tracks, though parallel to each other and further more the depth of the field of either of these two items would be distinct with clear gradation. Thus, it cannot be over-looked that the scheme of the said provision unmistakably indicates that the court is expected to determine the objection to jurisdiction as an issue in the suit which should be treated as a preliminary issue and having regard to the concept of the pleading, the issues arising therefrom and the-determination of such issues on evidence and on the anvil of procedure as prescribed under the Code, it would be clear that the determination of such an issue even at that stage would be on the consideration of all aspects in which the said issue is enveloped; secondly, it would be after giving the parties a full opportunity to lead all the necessary material and the evidence as they would have done when the issue was framed at the trial and lastly the determination of such an issue even at that stage would get a label of finality in so far as that proceeding and the suit is concerned. That means it is not as if that the same issue need be re-heard in the second round, when the other issues are heard at the trial, and it is equally not as if that the first round being only a prima facie, superficial view on a tentative objection while the second round being a full-fledged, final decision or adjudication on all aspects of the merits transforming the said objection into a regular issue. The user of certain phraseology cannot be without any purpose or significance. It is this depth that is in contrast with the thinner one of the interim application for an interim relief which is to be decided essentially on the prima facie view without probing deeper in the finer shades and aspects. One tends to touch the root whereas the other remains on the surface. This difference would equally be alive even if both the matters are heard at one and the same time. Therefore, permissibility and desirability of such a feature of composite hearing are two separable features and the course to be adopted can well be left to the Presiding Judge in the context of the facts and circumstances of each case. If it is decided to consider only the said preliminary issue and to keep back for the time being the interim application, then the possibility of any irreparable harm being caused to either side can well be avoided as clause (2) takes care of such a situation under which even during this interim period till the adjudication of the preliminary issue, the Court is empowered to grant the interim relief purely on interim basis.
15. Section 9-A of the Code, therefore, opens on umbrella under which exists a self-contained scheme with a definited object. I am fortified in this view by ratio of two decisions of this Court in Porbunderwala v. Gulam Hussein . 1974 Mh. LJ 594 and Radhakishin v. Sheila Govind Mirchandani . 1976 Mh. LJ 456..
[Rest of the judgment is not material for the Report.]