JUDGMENT - LODHA R.M., J.:—Applicant M/s. Chopda Automobiles Finance has preferred this revision application under section 115 of the Civil Procedure Code, 1908 (for short 'CPC') aggrieved by the order dated 11-4-1991 passed by District Judge, Amravati, in Miscellaneous Civil Appeal No. 34/87 whereby he allowed the appeal filed by the non-applicant and set aside the order passed by Third Joint civil Judge, Junior Division, Amravati on 27-3-1987 in Regular Civil Suit No. 490/83, (Sk. Shabbir v. Chopda Automobiles Finance). 2. The Third Joint Civil Judge, Junior Division, Amravati by the order dated 27-3-1987 allowed the application filed by the applicant (hereinafter referred to as defendant) under section 9-A of Civil Procedure Code an directed the Non-applicant (hereinafter referred to as 'plaintiff') for presentation of the plaint to the proper Court as set out in Clause No. 29 of the agreement as Exs. 52 and 53 and accordingly directed return of plaint to the plaintiff. On appeal the District Judge, Amravati, allowed the appeal filed by the plaintiff, set aside the order of the trial Court dated 27-3-987 and decided the trial Court that issues as per the pleadings be framed and after giving opportunity to the parties to lead evidence, the suit be decided in accordance with law. 3. Facts leading to the controversy between the parties are that the plaintiff filed a suit for declaration the Court of Joint Civil Judge, Junior Division, Amravati for declaration that he was the absolute owner of Truck bearing No. MHV 5187. The suit was filed against the defendant and it was averred by the plaintiff that he intended to purchase a truck and entered into an Agreement of Sale with one Shri Onkar Bandu Kasar for a consideration of Rs. 98,000/-. The plaintiff was in need of the money for the said transaction. The plaintiff had paid Rs. 50,000/- to Onkar on 10-4-1981 and had received the possession of the said truck bearing No. MHV 5187 from him. For making payment of the balance consideration, the plaintiff contacted one Gautamchand and he represented to the plaintiff that he was the representative an agent of the defendant firm. The plaintiff accordingly executed an agreement by receiving an advance of Rs. 50,000/- after deduction of the commission fee and it is the case of the plaintiff that thereafter he made payment to the tune of Rs. The plaintiff accordingly executed an agreement by receiving an advance of Rs. 50,000/- after deduction of the commission fee and it is the case of the plaintiff that thereafter he made payment to the tune of Rs. 17,500/- to the defendant, but the rest of the amount was not paid, since the truck met with an accident on 25-2-1982. The plaintiff again approached the said Gautamchand and requested to refinance him an advance to the tune of Rs. 60,000/- for repayment of the arrears of the previous loan. The second refinance is alleged to have been made in the name of the defendant. The plaintiff further averred in the plaint that the said Gautamchand and Abbasbhai came to Amravati on 17-9-1983 from Hyderabad and tried to remove the truck from the possession of the plaintiff, but they could not do so. However, hey were successful in removing the registration book, pass book and the permit book with them. This led to filing of the present suit by plaintiff challenging the right of the defendant to remove the documents without his consent. In this suit the defendant set up the defence that the finance and refinance was paid to the plaintiff by the defendant on execution of relevant documents and the plaintiff on his own had entered into an agreement of hire purchase dated 6-6-1981. According to the defendant, the plaintiff owe an amount of Rs. 70,000/- payable in 20 equal monthly instalments at the rate of Rs. 3,000/- per month as per the Hire Purchase Agreement dated 6-6-1981. The defendant in the said suit also set up the defence that it is the owner of the truck under the Hire Purchase Agreement. The defendant also submitted that the plaintiff had only paid five instalments and committed defaults thereafter. The defendant also submitted that it agreed to execute another hire purchase agreement for the payment of Rs. 88,800/- with the plaintiff rate who agreed to re-pay the said amount in 24 equal monthly instalments at the of Rs. 3700/- as was mentioned in the hire purchase agreement dated 7-4-1982. The defendant also submitted that it agreed to execute another hire purchase agreement for the payment of Rs. 88,800/- with the plaintiff rate who agreed to re-pay the said amount in 24 equal monthly instalments at the of Rs. 3700/- as was mentioned in the hire purchase agreement dated 7-4-1982. According to the defendant, it had filed a suit before the Second Additional City Civil Court, Hyderabad against the present plaintiff for declaration and injunction, since pursuant to the hire purchase agreement dated 7-4-1982, the plaintiff only paid 10 instalments, and thereafter committed defaults and in spite of repeated requests, did not make the payment of the balance amount. The defendant set up the defence that according to the hire purchase agreement, the plaintiff was only a hirer and not the owner of the vehicle. The defendant also challenged the jurisdiction of the Civil court at Amravati by submitting that the said Court had no jurisdiction to try and entertain the suit in view of Clause 29 of he Hire Purchase Agreement which provided that all legal proceedings relevant to the subject matter of the hire purchase agreement between the parties shall only be prosecuted in Hyderabad Courts and the Courts at Hyderabad shall have the exclusive jurisdiction to try any legal proceedings or any suit in respect of any matter in respect of the dispute arising out of the said agreement. 4. It is not disputed by the parties that in the suit filed by the plaintiff in the Court of Third Joint civil Judge, Junior Division, Amravati, an application for interim relief as also filed by the plaintiff. The admitted position between the parties is that by the application Ex. 28 filed under section 9-A of the Civil Procedure Code, the defendant during the pendency of the application for the grant of interim relief prayed the trial Court to decide the issue of jurisdiction as a preliminary issue. The defendant by the said application wanted that since the parties had agreed that all disputes under the hire purchase agreement shall have to be raised in the Courts at Hyderabad, the Amravati Court has no jurisdiction, and therefore, this issue of jurisdiction should be decided first before proceeding in the suit on the merits of the claim and before deciding the application for the grant of interim relief. It is also not disputed, rather it is admitted by the plaintiff that to this application of the defendant filed under section 9-A of Civil Procedure Code that the question of jurisdiction should be decided as preliminary issue, the plaintiff had no objection and submitted before the trial Court that the application fled by the defendant under section 9-A for deciding the issue jurisdiction as preliminary issue may be decided as preliminary issue by the trial Court. 5. Since the plaintiff had no objection for deciding the question as preliminary issue, the trial Court framed the preliminary issue to the effect: “Whether this Court has jurisdiction to try the suits?” 6. Accordingly, plaintiff as well as defendant led oral and documentary evidence. Plaintiff examined himself as P 1 and also examined Clerk of the R.T.O. office as P.W. 2 on behalf of the defendant, Prakashchandra Chopra was examined as DW 2. Both the agreements between the parties Exs. 52 and 53 dated 6-6-1981 and 7-4-1981 respectively were on record. Some other documents wee also filed by the parties. 7. The trial Court after recording the evidence and hearing the learned Counsel for the parties concluded that the parties are bound by the arms of the agreement dated 6-6-1981 and 7-4-1981 Exs. 52 and 53 and in view of Clause 29 of the said agreements, which is binding on both the parties, the parties have chosen the forum to refer the dispute arising out of the agreement to the Courts at Hyderabad. Thus, according to the trial court, the trial jurisdiction Court at Amravati was excluded and exclusive jurisdiction of the Courts at Hyderabad was agreed between the parties in case of the dispute under the said agreements. The trial Court thus held that the Court at Amravati has no jurisdiction, decided the issue in favour of the defendant and directed the plant to be returned to the plaintiff for presentation to the proper Court as set out in Clause 29 of the agreements Exs. 52 and 53. 8. This order dated 27-3-1987 passed by Third Joint Civil Judge, Junior Division, Amravati, directing return of plaint to the plaintiff for presentation to the proper court as set out in Clause 29 of the Agreement in Exs. 52 and 53, was challenged by the plaintiff before the District Judge, Amravati. 52 and 53. 8. This order dated 27-3-1987 passed by Third Joint Civil Judge, Junior Division, Amravati, directing return of plaint to the plaintiff for presentation to the proper court as set out in Clause 29 of the Agreement in Exs. 52 and 53, was challenged by the plaintiff before the District Judge, Amravati. The District Judge, Amravati held that the issue of jurisdiction was an issue of fact and law, and therefore, the trial Court could not have decided the said issue as a preliminary issue without deciding the other issues on merits. Consequently, the Appellate Court allowed the appeal filed by the plaintiff and set aside the order dated 27-3-1987 passed by the trial Court and directed the trial Court that all the issues as per the pleadings of the parties should be framed and after recording the evidence the suit should be decided in accordance with law. This order of the District Judge, Amravati passed on 11-4-1991 is under challenge in the present revision application. 9. Mr. Sunil V. Manohar, the learned Counsel for he applicant defendant submitted that the Appellate Court committed serious error of jurisdiction in holding that the issue of jurisdiction being an issue of fact and law could not have been decided as a preliminary issue. According to the learned counsel for the applicant defendant, the appellate Court overlooked the fact that the issue of jurisdiction was tried as preliminary issue, since the plaintiff had no objection to the trial of the said issue as a preliminary issue. The learned Counsel for the defendant appellant submits that even otherwise since the application for an interim relief was pending before the trial court and during he pendency of the said application, the application under section 9-A of Civil Procedure Code was filed by the defendant for deciding the question of jurisdiction, it cannot be said that the trial Court committed any error in deciding he said issue as preliminary issue even if the said issue was of fat an law, since under section 9-A of Civil Procedure Code which is applicable in Maharashtra, the trail Court rightly decided the issue of jurisdiction as preliminary issue. The learned Counsel relied on (Hakam Singh v. Gammon (India) Ltd.)1, A.I.R. 1971 S.C. 740 and (M.L. Sethi v. R.P. Kapur)2, A.I.R. 1972 S.C. 2379. 10. On the other hand, Mr. The learned Counsel relied on (Hakam Singh v. Gammon (India) Ltd.)1, A.I.R. 1971 S.C. 740 and (M.L. Sethi v. R.P. Kapur)2, A.I.R. 1972 S.C. 2379. 10. On the other hand, Mr. V.M. Deshpande, the learned Counsel for he plaintiff non-applicant strenuously urged that no error of jurisdiction has been committed by the Appellate Court in holding that since the question of jurisdiction was a question of fact and law and the same should be decided along with other issues. The learned Counsel for the plaintiff non-applicant submitted that under Order 14, Rule 2, Civil Procedure Code when the issue cannot be decided without recording evidence, such issue should not be decided as a preliminary issue. Shri Deshpande in support of his submissions relied on (Abdula Bin Ali v. Galappa)3, A.I.R. 1985 S.C. 577, and (Daljit Singh v. Jogender Singh)4, A.I.R. 1985 P. H. 184. 11. I have given my thoughtful consideration to the rival contentions raised by the learned counsel, he reasoning given by the District Judge, Amravati in the impugned order and record of this revision application. 12. The District Judge appears to have not adverted to the most material aspect of the matter that on filing of the application by the defendant under section 9-A of Civil Procedure Code for deciding the question of jurisdiction as preliminary issue, the plaintiff submitted before the trial Court that he had no objection if the question of jurisdiction is decided by the trial Court as preliminary issue. Once the plaintiff agreed for trial of the issue of jurisdiction as preliminary issue, and on the said statement of the plaintiff, the trial Court proceeded with the determination of the issue of jurisdiction as preliminary issue, recorded the evidence of both the parties on the said issue, heard the learned Counsel for the parties on the said issue and gave its decision that the Court at Amravati had no jurisdiction and plaint deserves to be returned to the plaintiff for presenting the same before the competent Court of jurisdiction at Hyderabad, the said issue having been decided against the plaintiff, it was not open to the plaintiff to submit before the appellate Court that the said issue could not have been decided as a preliminary issue, since the issue pertains to mere question of fact as well as law. The plaintiff could not have approbated and reprobated at the same time. The plaintiff could not have approbated and reprobated at the same time. Having taken full chance of getting the decision in its favour on the issue of jurisdiction by not objecting to the determination of the issue of jurisdiction as preliminary issue, leading the evidence in its support that the Court at Amravati had jurisdiction and arguing he said issue on merits that only Court at Amravati had jurisdiction, once the decision on the said issue went against the plaintiff, when the trial Court held that the Court at Hyderabad had only jurisdiction relating to subject matter of he suit in view of clause 29 of the agreement between the parties Exs. 52 and 53 respectively, the plaintiff could not have turned round and submitted in the appeal before the Appellate court that the said issue could not be decided as a preliminary issue, since it was not an issue of law, but an issue of mixed question of fact and law. In view of the categorical stand taken by the plaintiff that the issue of jurisdiction could be decided as preliminary issue by the trial Court on the application filed by the defendant under section 9-A of Civil Procedure Code before the trial Court, the Appellate Court was not justified in holding that since the preliminary issue decided by the trial court was an issue of fact and law, it could not have been decided as preliminary issue. 13. Besides the fact that the Appellate Court overlooked he categorical statement made by the plaintiff before the trial Court that the question of jurisdiction may be decided as preliminary issue by the trial Court and consequently he trial court decided the said issue as a preliminary issue, the Appellate Court also overlooked the provisions of section 9-A of Civil Procedure Code which have been inserted in Maharashtra. Section 9-A reads as under: “9-A(1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit. (2) Notwithstanding anything contained in sub-section (9), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction.” 14. It would be seen from the aforesaid provision of section 9-A of Civil Procedure Code that it carves out an exception to Order 14, Rule 2, Civil Procedure Code and provides that notwithstanding anything contained in Civil Procedure Code if an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine the said issue as to the jurisdiction as a preliminary issue before granting or setting aside he order granting the interim relief. It is not disputed by the learned Counsel for the plaintiff that the application under section 9-A was filed by the defendant for deciding the question of jurisdiction at the time hen the application for interim relief was pending before the trial Court. Precisely because the application was filed by the defendant under section 9-A of Civil Procedure Code and the issue of jurisdiction could be decided by the trial Court as a preliminary issue under the said section and all the conditions under section 9-A of Civil Procedure Code were satisfied, the plaintiff consented for deciding the issue of jurisdiction as preliminary issue. The appellate court has orally ignored and overlooked the provisions of section 9-A of the Act and proceeded with assuming that under Order 14, Rule 2, Civil Procedure Code the issue of mixed quotation of fact and law cannot be decided as a preliminary issue before the trial court was overlooked, the fact that the application was filed by the defendant under section 9-A for the decision on the question of jurisdiction as preliminary issue and that section 9-A, Civil Procedure Code provides of decision on the question of jurisdiction as preliminary issue before deciding the application for interim relief, the conclusion of the appellate court that the preliminary issue in the present case having a mixed issue of law and fact could not be decided as a preliminary issue, was unsustainable. 15. The authorities cited by Mr. Deshpande have no bearing so far as controversy in question is concerned. In Abdulla Bin Ali v. Galappa (cited supra), the Supreme Court has held the allegations made in the plaint to decide the forum and the jurisdiction dos not depend upon the defend taken by the defendant in the written statement. In case in hand, the question is that about the dispute between the parties under the hire purchase agreement, the Courts at Hyderabad as well as Amravati has jurisdiction, but the parties under the terms of the agreement agreed that the Court at Hyderabad having such jurisdiction alone shall try the dispute, and therefore, by agreement excluded the jurisdiction of Amravati Court and the only Court having exclusive jurisdiction to decide the dispute between the parties was the Court at Hyderabad and in this view of the matter the preliminary issue was famed and parties led their evidence. So far as Daljit Singh v. Joginder Singh (cited supra) is concerned, it may be observed that in Punjab and Haryana, the provisions like section 9-A of Civil Procedure Code which are operative in Maharashtra are not there, and therefore, under Order 14, Rule 2, Civil Procedure Code a mixed question of fact and law, could not be treated as a preliminary issue. In Maharashtra, section 9-A of Civil Procedure Code is an exception to Order 14, Rule 2 and therefore, Daljit Singh's case (cited supra) has relevance or bearing on the present case. 16. In Maharashtra, section 9-A of Civil Procedure Code is an exception to Order 14, Rule 2 and therefore, Daljit Singh's case (cited supra) has relevance or bearing on the present case. 16. In view of he discussion referred to hereinabove, he order passed by the Appellate Court on 11-4-1991 is liable to be quashed and set aside. 17. Consequently, this revision application is allowed and the order passed by District Judge, Amravati on 1-4-1991 in Miscellaneous Appeal No. 34/87, Sheikh Shabbir s/o Sheikh Noor v. M/s Chopda Automobiles Finance, is quashed and set aside the District Judge, Amravati is directed to decide the appeal afresh in accordance with law and in view of the discussion made in this order. Since the appeal before the District Judge, Amravati is of the year 1987, it is expected that the District Judge, Amravati shall give topmost priority for the disposal of the said appeal and in any case decide the same the appeal afresh in accordance with law and in view of the discussion made in this order. Since the appeal before the District Judge, Amravati is of the year 1987, it is expected that the District Judge, Amravati shall give topmost priority for the disposal of the said appeal and in any case decide the same within three months of the appearance of the parties before the said Court. Both the parties are directed to appear before the District Judge, Amravati on 24-10-1994. Order accordingly. Application allowed. -----