JUDGMENT - KHANWILKAR A.M., J.:---Heard.

2. Rule. Rule made returnable forthwith, by consent.

3. As short question is involved, the matter is taken for final hearing forthwith, by consent.

4. Respondent No. 1 has died long back during the pendency of the proceedings before the lower Court. In this view of the matter, Counsel for the petitioner orally prays for permission to delete respondent No. 1. As per oral request, petitioner is allowed to delete respondent No. 1 at his risk. Amendment be carried out forthwith.

5. This petition takes exception to the judgment and order passed by the Civil Judge, Junior Division, Kurundwad dated October 8, 2001 below Exhibit 45 in R.C.S. No. 66 of 1985. The respondent along with the deleted respondent No. 1 has filed suit for permanent injunction and declaration before the Civil Judge, Junior Division, being Regular Suit No. 66 of 1985. In the said suit, application for interim relief (Exhibit 5) was filed, which was, however, rejected. The matter was carried in appeal by the respondents, which appeal was also dismissed by the District Court on July 8, 1986. While considering that appeal, the District Court has dealt with the contention raised on behalf of the petitioner that the suit as presented by the respondents was barred, as the respondents had not obtained consent of the Charity Commissioner as required by section 51 of the Bombay Public Trust Act. The District Court has, prima facie, accepted that contention raised on behalf of the petitioner. Since the District Court was inclined to accept that contention, the appropriate course was to direct the trial Court to decide the issue of jurisdiction in the first instance before passing any final order on the interim relief application, as filed by the respondents. Be that as it may, the District Court rejected the appeal filed by the respondents.

6. Later on, respondents filed application for amendment of plaint on the ground that in view of the subsequent events, the amendments had become necessary. That application was marked as Exhibit 45. The same has been allowed by the trial Court by the impugned judgment and order dated October 8, 2001. Once again objection regarding jurisdiction to try the suit as presented was raised on behalf of the petitioner. In fact the petitioner has filed a formal application to decide the issue of jurisdiction but it is stated that the same is pending even now.

7. In this backdrop, the petitioner contends that the trial Court could not have proceeded to decide any other issue including the relief of amendment of the plaint, unless the issue of jurisdiction was decided by the trial Court in the first instance, having regard to the mandate of section 9-A of the Code of Civil Procedure, as applicable to the State of Maharashtra. Learned Counsel for the petitioner has also criticised the impugned judgment and order on merits for allowing the amendment as prayed. Whereas, Counsel for the respondent contends that the issue of jurisdiction is required to be considered at the first instance in terms of section 9-A of the Code of Civil Procedure, only if the Court was considering the application for interim relief and not otherwise much less while considering the application for amendment as filed by the respondents Exhibit 45.

8. Having considered the rival submissions, I find no substance in the stand taken by the respondents. Whereas, section 9-A of the Code of Civil Procedure, as applicable to the State of Maharashtra, clearly mandates the Court to decide the issue of jurisdiction in the first instance---"at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit." The legislative intent and the purpose as well as the purport of the said provision has already been enunciated by the Division Bench of this Court in the case of (Meher Singh v. Deepak Sawhny)1, reported in 1999(1) Bom.C.

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