S. R. SATHE, J.:- The following issue is referred to this Division Bench for consideration.

"While deciding the suit finally after parties have led evidence on all issues when a court comes to the conclusion that it lacks jurisdiction to hear and decide the suit, whether it is necessary for the court to decide other issues on merits at the time of or before passing the order of return of plaint."

2. It would be worthwhile to mention the facts giving rise to the above reference.

Jagdish Hari Thatte and 6 others filed L.C. Suit No.3856 of 1985 against the Municipal Corporation of Greater Bombay and State of Maharashtra in Bombay City Civil Court for declaration and permanent injunction restraining the defendants from implementing the threatened action in their several notices. The defendant No.1 filed its written statement and raised several contentions. One of the said contentions was that the City Civil Court has no jurisdiction to try the said suit in view of the provision of Section 149 of the Maharashtra Regional and Town Planning Act, 1966 (hereafter referred to as MRTP Act).

3. On the pleadings of the parties the learned trial Judge framed as many as six issues. One of the said issues was "Does the defendant prove that this court has no jurisdiction under Section 149 of the MRTP Act, as alleged in the written statement".

4. On all the issues framed by the Court, parties adduced evidence and the matter was fully heard. While deciding the suit and writing final judgment the learned trial judge first dealt with the issue regarding jurisdiction and came to the conclusion that in view of the provisions of Section 149 of the MTRP Act, the suit filed by the plaintiff was not tenable. He, therefore, observed that under such circumstances it was not necessary for him to deal with the other issues and therefore without recording finding on the other issues, he directed that plaint be returned to the plaintiffs for presentation before the proper forum.

5. Being aggrieved by the said decision, the plaintiff filed Appeal against Order No.1107 of 2001. When the said A.O. was heard by the learned Single Judge, of this Court, the learned advocate for the appellant made several submissions. One of which was, once the stage of deciding preliminary issue of jurisdiction under Section 9-A of the Code of Civil Procedure, 1908 (hereafter referred to as the said code) was over, and once the court decides not to take up the issue of jurisdiction as a preliminary issue, the trial court cannot pass the order returning the plaint at the time of the final hearing. In support of this submission the learned Advocate for the appellant plaintiff placed reliance on the case Kusumkant T. Nagda Vs. Mariambi w/o. Ibrahim, 2005(1) ALL MR 255. That was a case where issue regarding jurisdiction was not tried as a preliminary issue and parties adduced evidence and the matter was fully heard and while deciding the same finally, the learned trial judge came to the conclusion that the City Civil Court had no jurisdiction to decide the suit in view of the provisions of Section 28 of the Bombay Rent Act and therefore plaint was returned for presentation to proper court without answering the other issues on which parties had led evidence. The said order was challenged before the learned Single Judge of this Court and the learned Single Judge (Coram Mrs. Nishita Mhatre, J.) came to the conclusion that the trial court ought to have decided all issues since evidence was led on all issues. The stage of deciding the preliminary issue under Section 9-A had long gone by and it was therefore erroneous on the part of the trial court to return the plaint without deciding the other issues framed by it.

6. When the above cited reported ruling was brought to the notice of the learned single judge who was hearing the Appeal from Order No.1107 of 2001, the learned Single Judge felt that when the court records the finding on issue of jurisdiction against the plaintiff, the court lacks jur

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