S.C. DHARMADHIKARI, J.

1. This Appeal under Clause 15 of the Letters Patent challenges the order passed by the learned Single Judge of this Court dated 03rd April, 2012 on the Notice of Motion No.1548/2011 in Suit No.1173/2011. In this Notice of Motion bearing No.1548/2011 for interim relief filed in the Respondent/ Plaintiff's Suit, the Appellants/ original Defendants invoked Section 9A of the Code of Civil Procedure, 1908 as applicable to the State of Maharashtra and raised the issue of jurisdiction of this Court to entertain and try the Suit.

2. The main prayer in the Notice of Motion No.1548/2011 reads as under:

(a) That pending the hearing and final disposal of the Suit, the Defendants, their servants and agents be restrained by temporary order and injunction of this Hon'ble Court from entering upon or remaining on the Suit Flat viz. Flat No.5, Second Floor, Goolestan, 37, (East) Wing, Cuffe Parade, Bombay 400005 or any part thereof without the permission of the Plaintiff.”

3. In terms of the legal provision noted above the issue of jurisdiction of the Civil Court, if raised, has to be tried as a preliminary issue and before consideration of the prayer for interim reliefs made in the suit. In other words, the issue of jurisdiction can be raised at an interim stage and while the Court is considering the application for interim injunction. That is how it was raised and in the present Appeal we are only concerned with the findings on the issue of jurisdiction rendered by the learned Single Judge.

4. The learned Single Judge held that the claim or question in the subject Suit is not covered by Section 33 of the Maharashtra Rent Control Act, 1999 (for short MRC Act). The Civil Court has, therefore, jurisdiction to entertain and try the present Suit. The correctness of this finding and conclusion is impugned in the present Appeal.

5. The learned Senior Counsel appearing for both sides agree that the order on the above Notice of Motion is a judgment within the meaning of Clause 15 of the Letters Patent of this Court. That is how we have proceeded in this Appeal.

6. In view of the earlier orders and by consent of parties, the appeal is taken up for final hearing.

7. The issue of jurisdiction of this Court and whether the claim or question raised in the instant suit is covered by Section 33 of the MRC Act or not, will have to be decided on the basis of the allegations in the plaint. The issue of jurisdiction of a civil court cannot be decided, as is well settled, on the basis of defence or plea raised in the Written Statement. In raising the issue of jurisdiction of this Court, the Appellants alleged that the claim or question involved in the suit is referable to Section 33 of the MRC Act. They, therefore, requested the learned Single Judge to frame the issue of jurisdiction. At the instance of the Appellants and by consent of parties the learned Single Judge framed the following issue as a preliminary issue:“ Whether the Defendants prove that this Hon'ble Court does not have jurisdiction to entertain and try this suit in view of Section 33 of the Maharashtra Rent Control Act, 1999?”

8. The learned Single Judge noted that both parties stated that they do not wish to lead any oral evidence on the issue. The issue has, therefore, been answered with reference to the allegations in the plaint. We will now make a brief reference to the allegations in the plaint.

9. The Respondent/ Plaintiff filed the Suit No.1173/2011 in this Court alleging that he is a senior citizen and is physically handicapped. He had Polio at the age of one year, which considerably weakened both his legs and his right arm. He has pointed out that this has affected his mobility. The Appellant No.1 is the original Defendant No.1. She is younger married sister of the original Plaintiff. The Appellant No.2 is husband of the Appellant No.1.

10. The Respondent/ Plaintiff stated in paragraph 1 of the plaint that he is a resident of Washington D.C., United States of