(DR.D.Y.CHANDRACHUD, J.)

The First Respondent is the Plaintiff in a suit instituted against (i) the Appellant; (ii) the Airports Authority of India (the Second Respondent); and (iii) the State of Maharashtra (the Third Respondent). The First Respondent seeks a declaration that the Second Respondent is the owner of certain land and that it has been leased out to the First Respondent under a lease of 26 April 2006; that an order dated 22 June 1973 and an agreement dated 22 January 1991 executed between the Appellant and the State of Maharashtra are null and void; and an injunction restraining the Appellant from alienating the land.

2. An interlocutory motion was taken out by the First Respondent for seeking an injunction against the Appellant and the State of Maharashtra from acting upon their agreement and for restraining the Appellant from alienating the land. On behalf of the Appellant an affidavit was filed in reply to the motion inter alia contending that the suit is not maintainable on the ground that “the suit and the prayers are barred by the law of limitation”. A similar objection was raised to the maintainability of the suit in an affidavit filed on behalf of the State Government. The bar of limitation was thus raised in both the affidavits.

3. On 4 March 2010, a Learned Single Judge of this Court issued an ad-interim direction to the effect that the statement that was recorded in a letter dated 25 February 2010 would continue until 22 March 2010. On 18 March 2010, the ad-interim protection was continued pending the disposal of the motion. On 16 June 2010, a statement was made on behalf of the State of Maharashtra by Counsel that for the purpose of the Notice of Motion, the State was not pressing the issue that the suit is beyond limitation. The same statement was made on behalf of the Appellant. When the motion came up before the Learned Single Judge, the Court considered it appropriate to decide upon the legal position as to whether a Defendant can be permitted to give up its stand with regard to the question of jurisdiction of the Court at the hearing of the motion or whether, in view of the provisions of Section 9A of the Code of Civil Procedure, 1908, as applicable to the State of Maharashtra, a preliminary issue would have to be framed.

4. By a judgment dated 7 July 2010, the Learned Single Judge held that once a party to a suit raises a point of jurisdiction in the affidavit in reply, it is the duty of the Court to frame a preliminary issue under Section 9A. The Court cannot allow the party to drop its contention as regards the jurisdiction of the Court unless the Defendant desires to give up the contention that the Court has no jurisdiction for the purposes of the entire trial. In other words, the Learned Single Judge was of the view that it was not open to the Defendant to contend that it does not wish to raise the question of jurisdiction at the stage of the disposal of the Notice of Motion and would raise it subsequently at the stage of trial.

5. The correctness of the judgment of the Learned Single Judge is called into question in these proceedings.

6. On behalf of the Appellant it has been submitted that: (i) Section 9A is attracted if at the hearing of an application for interim relief, an objection to the jurisdiction of the Court to entertain the suit is taken by any of the parties to the suit. In such an eventuality, the issue of jurisdiction has to be decided as a preliminary issue at the hearing of the application before determining the grant of interim relief; (ii) Where a Defendant has raised an issue of jurisdiction in the affidavit filed in reply to the motion for interim relief, that does not preclude the Defendant from withdrawing the objection as to jurisdiction for the purpose of the Notice of Motion. Stating a point of jurisdiction on affidavit and informing the Court later that the point is not pressed for the purpose of the motion, stands on the same basis as a case where an obje