1. Leave to amend in terms of the draft amendment tendered by the learned counsel appearing on behalf of the Appellant. Amendment to be carried out during the course of the day. Verification is dispensed with.

2. Admit. On the request of the learned counsel and with their consent the Appeal is taken up for final disposal.

3. This Appeal arises out of an order of a learned Single Judge dated 5 October 2009 on a Motion for interim relief in a suit for specific performance of an agreement dated 14 August 1997. The agreement stipulated that the appellant as the landlord “hereby lets to the Tenant” (the Respondent) on a monthly tenancy, commencing from the date of possession and the grant of an Occupation Certificate, the premises of a shop admeasuring 451 sq. ft. in Strand Cinema Building on a monthly rent of Rs.625/-. The Appellant, as landlord agreed to obtain the Occupation Certificate from the Municipal Corporation and it was agreed that the tenancy would commence on the completion of the structure and the grant of an Occupation Certificate by the Corporation. This is so provided in clause (I) and clause (VIII) of the agreement. On 8 December 1998 the Appellant addressed a letter to the Respondent interalia stating that the Appellant had decided to dispose of each unit in the proposed building on ownership basis and intimated that the tenancy of the Respondent “therefore is required to be also changed accordingly”. The terms for the transfer of the unit on ownership basis to the Respondent were communicated. On 27 February 2004 the Appellant terminated the agreement dated 14 August 1997 on the ground of the alleged inaction of the Respondent. The Respondent instituted a suit for specific performance of the agreement on 4 February 2007. It is common ground that during the pendency of the Motion, there was an ad interim order dated 3 May 2007 passed by a Division Bench in Appeal. The order of status quo continued to hold the field until the learned Single Judge disposed of the Motion by an order dated 5 October 2009. By the impugned order the learned Single Judge made the Motion absolute in terms of prayer clause (b). As a result the Appellant has been restrained from assigning, selling, transferring, disposing of, alienating or parting with possession of or inducting any other person in the said premises.

4. On behalf of the Appellant it has been submitted that in the reply which was filed to the Notice of Motion, it was specifically submitted that the suit was beyond limitation. Moreover by the time that the learned Single Judge took up the Motion for hearing, the Appellant had filed a written statement in which the jurisdiction of this Court to entertain the suit was sought to be questioned on the ground that only the Small Causes Court would have jurisdiction. On the basis of the provisions of Section 9-A of the Code of Civil Procedure 1908, it has been urged that once at the hearing of the Motion, grounds questioning the jurisdiction of this Court both on the issue of limitation and on whether the suit would lie before the Small Causes Court were raised, the learned Single Judge ought not to have proceeded to dispose of the Motion without framing and deciding the issue of jurisdiction as a preliminary issue.

5. On the other hand it was urged on behalf of the Respondent that (i) no request was made before the learned Single Judge to raise the issue of jurisdiction as a preliminary issue under Section 9-A; (ii) no ground has been raised in the Memo of Appeal that despite the learned Single Judge being so requested, the Court had declined to raise a preliminary issue under Section 9-A.

6. Section 9-A provides as follows:

“9-A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue.- (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing o