IMPORTANT POINT
In a case where application for framing preliminary issue is pending on 27th June, 2018 but preliminary issue has not been framed, then in that case, such application under Section 9A CPC shall be deemed to be an application filed under Order 14 CPC and shall be decided by Court alongwith other issues at the time of final disposal.

JUDGMENT

Sandeep K. Shinde, J.—The State of Maharashtra on 27th June 2018, further to amend Section 9A of the Code of Civil Procedure, 1908 (“CPC” for short) in its application to the State of Maharashtra, promulgated Maharashtra Ordinance No. XVIII of 2018.

2. This Ordinance has been replaced by Code of Civil Procedure (Maharashtra Amendment Act), 2018 (Maharashtra Act No. LXI of 2018), enacted by the State legislature on 29th October, 2018 which has deemed to come into force on 27th June, 2018 (hereinafter called “First Amendment Act”).

3. In Writ Petition No. 8089 of 2015, preliminary issue of jurisdiction framed and answered by the Learned 3rd Civil Judge Junior Division, Thane on 6th August 2014, holding that the Court has jurisdiction to entertain the suit, is under challenge.

4. In Writ Petition No. 12418 of 2015, preliminary issue was framed and answered by the learned Civil Judge Senior Division, Jaysingpur holding that the Court has jurisdiction to entertain the suit, is under challenge.

5. The issue in both the petitions is;

“Whether the present proceedings stands abated in view of clause-2 of Section 3 of the Code of Civil Procedure (Maharashtra Amendment Act), 2018 ?”

6. The Counsels in both the petitions, submit that, in view of the referral order of this Court, in the case of Paresh Kapadia V/s. Sandeep Runwal and Ors. in the Suit no. 179 of 2017 with Notice of Motion No. 550 of 2017, whether provision of clause (2) of Section 3 of the First Amendment Act can be applied to the facts of the case, when a conflict is arising between the First Amendment Act and Maharashtra Act No. LXXII of 2018 (hereinafter called the Second Amendment Act for short).

7. First Amendment Act, received the assent of the Petitioner and published in the Gazette on 29th October, 2018 but deemed to have come into force on 27th June, 2018. Second Amendment Act was first published in the Gazette on the 15th December, 2018, however, in terms of Section 2 thereof, it substituted clause (1) of Section 3 of the First Amendment Act, with effect from 27th June 2018, being the date of commencement of the First Amendment Act.

8. In view of Section 2 of the First Amendment Act which deemed to have come into force on 27th June, 2018, Section 9A CPC in its application to the State of Maharashtra, has been deleted; however under Section 3, it saved, following proceedings:-

(i) where consideration of preliminary issue framed under Section 9A is pending on the date of commencement of the said First Amendment Act, the said issue by deeming fiction shall be an issue framed under Order 14 of the Civil Procedure Code, 1908 and shall be decided by the Court, as it deems fit with all other issues at the time of final disposal of the suit itself, and if any evidence is led on the preliminary issue so framed, it shall be considered alongwith other evidence.

(ii) In all cases, where preliminary issue framed under Section 9A has been decided, holding that the Court has jurisdiction to entertain the suit, the challenge to such decision is pending before the revisional Court, on the date of commencement of the First Amendment Act, such revisional proceedings shall stand abated. Provided, where Court upholds the jurisdiction and Appeal against a decree in such suit is preferred, order upholding the jurisdiction shall be treated as one of the ground of objection as if it had been included in the Memorandum of appeal.

(iii) Where preliminary issue framed under section 9A CPC has been decided, holding that the Court has no jurisdiction to entertain the suit, and a challenge to such decision is pending before an Appellate/Revisional Court, such appellate or revisional proceedings shall continue as if the Amendment Act has not been enacted and Section 9A CPC has not been deleted.

Proviso to sub-section (3) provides, in case, the appellate / revisional Court partly allows the appeal and remands the matter to the trial court for reconsideration of the preliminary issue, the trial