Petition to decide issue of jurisdiction as preliminary issue dismissed.

Shivaraj Patil, J.

.1. The defendants in C.S.No.94 of 1994 have filed these two appeals aggrieved by the common order dated 22. 1997 made by the learned single Judge in Application Nos.520 and 522 of 1997.

2. Application No.520 of 1997 was filed by the defendants to revoke the leave already granted on 10. 1993 in Application No.5529 of 1993 to the plaintiff to institute the suit. Application No.522 of 1997 was filed by the defendants for deciding issue No.l relating to the jurisdiction as a preliminary issue before taking up the trial of other issues. The learned single judge by the common order dated 22. 1997 dismissed both the applications.

3. The parties in these appeals, during the course of the judgment, shall be referred to as they are described in the plaint. Facts which are considered necessary and relevant for disposal of these appeals, briefly stated, are as follows: The plaintiff filed the suit C.S.No.94 of 1994 on 10. 1993 praying for a decree, directing the defendants to perform the agreement dated 10. 1990, to execute and register sale deed in favour of the plaintiff in respect of the suit property. Alternatively the plaintiff prayed for a decree against the defendants to direct them to pay the plaintiff a sum of Rs.lO lakhs received as earnest money, with interest at 36% per annum form 10. 1990 till realisation. The plaintiff also prayed for granting a decree for permanent injunction restraining the defendants from alienating or in any way dealing with the suit property.

4. It is admitted in paragraph 7 of the plaint that the suit properties are situated, and the defendants also reside outside the jurisdiction of this Court. The plaintiff filed Application No.5529 of 1993 seeking leave to sue the defendants in this Court. The learned single judge granted leave to file the suit. Second defendant filed written statement on 7. 1994 and defendants 1 and 3 adopted the same. After framing issues, the suit was posted for trial on 1. 1997 and it was adjourned to 21. 1997 as requested and then to 21. 1997.

.5. At that stage the defendants came forward with the two applications aforementioned, contending that they are permanent residents of Chengalpattu, outside the jurisdiction of this Court, and the properties also situate beyond the territorial jurisdiction of this Court. Since the suit is for land, this Court has no jurisdiction to try it, and on that basis they have prayed to revoke the leave, and to decide the issue relating to jurisdiction as preliminary issue.

6. The plaintiff filed counter affidavit opposing the said applications, stating that the suit is one for specific performance simpliciter, and not a suit for land, and that the defendants having raised the plea as to the jurisdiction in the written statement to try the suit, the application for revocation of leave granted, is not tenable without deciding that issue. The specific averment made in paragraph 10 of the plaint is not denied specifically in the written statement. It cannot be said that the defendants had no knowledge about the grant of leave. The defendants having entered defence upon the merits, they have acquiesced with the jurisdiction of this Court.

7. After hearing the learned counsel for the parties, and referring to various decisions, the learned single Judge, as stated above, dismissed both the applications.

8. The learned counsel for the defendants urged that having regard to the averments made in paragraph 10 of the plaint, looking to the defences of the defendants as pleaded in the written statement, and that the relief of possession in respect of the lands in question could be asked as per Sections 22 and 28(4) of the Specific Relief Act, the suit filed by the plaintiff has to be taken as a suit for land. According to him, the learned single judge was not right in dismissing the Application No.520 of 1997 filed for revoking the leave granted, so also in dismissing Application No.522 of 1997 filed for taking issu