ORDER: 1. The Suit is for declaration that a Deed of Trust dated 13th December 2004 and a Sale Deed dated 26th April 2006 are both illegal, bad in law and void. The Plaintiffs also seek a declaration of 1/4th share each in the suit property and a similar share in mesne profits and conducting charges. An additional declaration as to joint ownership to the extent of 1/4th share each in certain properties are also sought in prayer (c),and this is followed by prayer for partition. 2. The 1st Defendant is the father of 2nd Plaintiff and of the 2nd Defendant. Defendants Nos. 3 and 4 are alleged to be licensees in respect of some immovable properties. 3. At this stage, I am not concerned with the rival contentions on merits. It appears that the Plaintiffs first filed Notice of Motion No. 2435 of 2011. They then filed Notice of Motion (L) No. 1777 of 2014 for interim reliefs seeking that the suit be expedited. The 2nd Defendant filed Notice of Motion (L) No. 1464 of 2014 on 25th June 2015. In this, the 2nd Defendant sought a recall of an order dated 22nd August 2013 in Review Petition (L) No. 26 of 2013 in the Plaintiffs’ first Notice of Motion No. 2435 of 2011. 4. It appears that on 19th September 2014 several orders were passed. First, the learned Single Judge framed issues in the Suit. The first issue was whether the Suit was barred by limitation. On that very date, the learned Single Judge also disposed of the Plaintiffs’ Notice of Motion (L) No. 1777 of 2014 observing that since it was a Motion that only sought that the Suit be expedited, the Motion could be allowed to be withdrawn. This was permitted. The learned Single Judge on that day also held that the 2nd Defendant’s Notice of Motion (L) No. 1464 of 2014 (for recalling the order in the Review Petition and for framing a preliminary issue) did not survive in view of the withdrawal of the Plaintiffs’ Notice of Motion (L) No. 1777 of 2014. 5. The 2nd Defendant carried the order in his Notice of Motion (L) No. 1464 of 2014 in Appeal (L) No. 393 of 2015. 5. The 2nd Defendant carried the order in his Notice of Motion (L) No. 1464 of 2014 in Appeal (L) No. 393 of 2015. By an order dated 2nd July 2015, the impugned order dated 19th September 2014, i.e., the one that said that the 2nd Defendant’s Notice of Motion did not survive, was set aside. The 2nd Defendant’s Notice of Motion (L) No. 1464 of 2014 was restored to file upon the matter being remanded and the Appeal was accordingly allowed. 6. This is how Notice of Motion (L) No. 1464 of 2014 filed by the 2nd Defendant is listed before me today. There are three prayers in this Notice of Motion and they are thus: “(a) that this Hon’ble Court be pleased to recall and vacate the limited relief granted to the Plaintiff vide the Order dated 22nd August 2013 in Review Petition (L) No. 26 of 2013 in Notice of Motion No. 2435 of 2011. (b) that this Hon’ble Court be pleased to frame an issue of limitation under Section 9A of the Code of Civil Procedure and be further pleased to decide the said issue as a preliminary issue in the above suit. (c) pending the hearing and final disposal of this Notice of Motion and thereafter pending the hearing and final disposal of the preliminary issue of jurisdiction, this Hon’ble Court be pleased to stay any further proceedings of the main suit.” 7. Mr. Patel, learned Counsel for the 2nd Defendant, readily accepts this and agrees that it is prayer (b) that should have been numbered as prayer (a). This is obvious. If the 2nd Defendant succeeds on the preliminary issue under Section 9A of the Code of Civil Procedure, 1908, the entire suit will not survive and will be dismissed as barred by limitation. 8. The point however, that is canvased before me by Mr. Talreja, learned Advocate for the Plaintiffs, is somewhat different. He makes two submissions. The first of these is that since an issue on limitation has already been framed in the suit itself under Order XIV of the Code of Civil Procedure, 1908 (“CPC”), no Defendant can be permitted to leapfrog the entire process of the trial of the suit by now raising a preliminary issue and thus short-circuiting the trial. He also points out that all pre-trial work is complete. He also points out that all pre-trial work is complete. In fact, am Evidence Affidavit on behalf of the Plaintiffs covering all issues that place the burden of proof on Plaintiffs has already been filed. 9. The second submission that he makes is that the provisions of Section 9A of the CPC are a defence that is available to a defendant only if a plaintiff applies for interim reliefs. A defendant cannot on his own invoke Section 9A. This is clear, he submits, from the words of Section 9A which says that as an objection as to jurisdiction can be taken “at the hearing of an application relating to interim relief in the suit”. Therefore, he submits, if there is no application for interim relief, the Defendant cannot raise a preliminary issue under Section 9A. It makes no difference, he submits, if the Plaintiff chooses not to file any Notice of Motion at all, but simply files his suit and awaits its trial or if the Plaintiff files a Notice of Motion and then withdraws it, i.e., makes no application for interim relief. In other words, the submission, as I understand it, is that an objection as to jurisdiction under Section 9A of the CPC can only be taken if there is an existing, pending and a live application by a plaintiff for interim relief. Where there is no such application, or where an application made is withdrawn, there can be no question of a preliminary issue being raised or decided. 10. In its order dated 2nd July 2015 in Appeal (L) 393 of 2015, the Division Bench quoted in paragraph 57 of the Supreme Court’s decision Foreshore Co-operative Housing Society Limited v Praveen D. Desai., 2015 (4) SCALE 654 : 2015 (3) Bom CR 711 : 2015 (3) ALL MR (SC) 951 : 2015 (3) Mh LJ 315 This passage is once again reproduced below: “57. At the cost of repetition, we observe that Section 9A provides a self-contained scheme with a nonobstante clause which mandates the court to follow the provision. It is a complete departure from the provisions contained in Order XIV Rule 2 CPC. At the cost of repetition, we observe that Section 9A provides a self-contained scheme with a nonobstante clause which mandates the court to follow the provision. It is a complete departure from the provisions contained in Order XIV Rule 2 CPC. In other words, the non-obstante clause inserted by Maharashtra Amendment Act of 1977 in Section 91 and the express mandate of the Section, the intention of the law is to decide the issue relating to jurisdiction of the court as a preliminary issue notwithstanding the provision contained in Order XIV Rule 2 CPC. However, it is made clear that in other cases where the suits are governed by the provisions of Order XIV Rule 2 CPC, it is the discretion of the court to decide the issue based on law as preliminary issue.” 11. What the Supreme Court observed, and what the Appeal Court has quoted, is clear viz., that Section 9A is itself a self -contained code and an exception to or a departure from the procedure or protocol of Order XIV Rule 2 of the CPC. The Supreme Court emphasised the non-obstante clause in the opening of Section 9A and enunciated the legislative intent behind the introduction of that Section as a State amendment. 12. In itself, this would have been a complete answer to the first submission made by Mr. Talreja. The second point that he makes, in relation to a situation where a plaintiff files a Notice of Motion and then withdraws it, is conceptually somewhat different. Although Mr. Talreja’s argument appears attractive, I believe it is fully answered by the Division Bench decision of this Court in Mukund Ltd v Mumbai International Airport & Ors., 2011 (5) Bom CR 456 : 2011 (2) Mh LJ 936 : 2011 (2) ALL MR 510 : 2011 (113) BOM LR 1164 This decision was also quoted by the Appeal Court in paragraph 7 of its order dated 2nd July 2015. In paragraph 15 of Mukund Ltd, the Division Bench said: “15. ... But, in our view, it is not open to a Defendant , having raised an objection to the jurisdiction of the Court at the hearing of an application for interim relief, to obviate an adjudication by the Court upon that issue as a preliminary issue by merely postulating that the objection is not pressed for the purpose of the Notice of Motion. The objection to jurisdiction under Section 9A is required to be determined not only for the purpose of the motion for the interim relief, but the objection as to jurisdiction goes to the root of the jurisdiction of the Court to entertain the suit itself. Once raised, the objection has to be decided by the Court as a preliminary issue ...” (Emphasis supplied) 13. Now what Mukund says is that once the Defendant has pleaded a jurisdictional bar, it is not open to him to avoid an adjudication of that issue by saying, for instance, that he is not pressing his application. The reason is obvious. When the Defendant raises a preliminary issue of jurisdiction, he brings to the attention of the Court that it cannot, for want of jurisdiction, hear the suit itself; if that jurisdictional bar exists, any order on that suit (or on any application in it) is a nullity. This is not a submission that any Defendant can waive or bypass. Either a Court has jurisdiction or it does not. In paragraphs 42 and 43 of Foreshore, the Supreme Court said: 42. In American Jurisprudence, Volume 32A, paragraph 581, it is said that Jurisdiction is the authority to decide a given case one way or the other. Without jurisdiction, a court cannot proceed at all in any case; jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to a court is that of announcing the fact and dismissing the cause. Further, in paragraph 588, it is said that lack of jurisdiction cannot be waived, consented to, or overcome by agreement of the parties. 43. It is well settled that essentially the jurisdiction is an authority to decide a given case one way or the other. Further, even though no party has raised objection with regard to jurisdiction of the court, the court has power to determine its own jurisdiction. In other words, in a case where the Court has no jurisdiction, it cannot confer upon it by consent or waiver of the parties. (Emphasis supplied) 14. The essence of Mr. Talreja’s argument is that the jurisdictional plea must be raised by a contesting defendant; and that if he does not do so, the plea cannot be considered. In other words, in a case where the Court has no jurisdiction, it cannot confer upon it by consent or waiver of the parties. (Emphasis supplied) 14. The essence of Mr. Talreja’s argument is that the jurisdictional plea must be raised by a contesting defendant; and that if he does not do so, the plea cannot be considered. This is clearly erroneous, for it suggests that merely for want of a jurisdictional objection a court would have or could assume a jurisdiction that it does not otherwise possess. 15. I believe that what the Supreme Court enunciated in Foreshore was also the reasoning that underlay the Division Bench’s judgment in Mukund Ltd. If this is so, then it must apply equally to a situation where a plaintiff files a Notice of Motion, the defendant takes the plea of an objection to jurisdiction under Section 9A, and the plaintiff to, in the words of the Mukund Ltd Court, to ‘obviate the decision’, seeks to withdraw the Notice of Motion. In such a case, can the Plaintiff be permitted to defeat the Defendant’s objection as to jurisdiction by the simple expedient of withdrawing his Notice of Motion altogether? Could such an act by a plaintiff confer jurisdiction on a Court if the Court did not have it in the first place? The answer is clearly no, and yet this seems to be precisely Mr. Talreja’s formulation. 16. It does not seem to me possible to reconcile the observations of the Division Bench in Mukund Ltd., reaffirmed once again in the Appeal Court order dated 2nd July 2015, with Mr. Talreja’s submission. The only consistent view possible, in my opinion, is that once a plea or objection as to jurisdiction is taken under Section 9A, it has to be decided irrespective of whether the Defendant presses it or not and equally irrespective of whether the Plaintiff then presses his application for interim relief. 17. Section 9A of the Code of Civil Procedure, 1908 reads as follows: “9A. 17. Section 9A of the Code of Civil Procedure, 1908 reads as follows: “9A. 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 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 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 for 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 (1), 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”. (Emphasis supplied) 18. When Section 9A says “where at the hearing of an application relating to interim relief in a suit” etc. it is only specifying an earlier point in time when a jurisdictional challenge can be mounted. This only advances the time for taking such a challenge. The trigger for jurisdictional plea is either the making of an application for interim relief or, alternatively, the making of an application for vacating or setting aside an order granting interim relief. The first of these is usually (but not always) an application by a plaintiff; but the jurisdictional objection can only ever come from a contesting defendant, for a plaintiff is hardly likely to raise such a challenge. The second type of application is by a defendant or party against whom an order has already been made and who then applies to have that order set aside, taking a plea of want of jurisdiction. The second type of application is by a defendant or party against whom an order has already been made and who then applies to have that order set aside, taking a plea of want of jurisdiction. This is logically consistent with the framework of Section 9A as enunciatedby the Supreme Court in Foreshore: if the jurisdictional issue is fundamental and the challenge is held to be good then any preceding order is necessarily a nullity. What Section 9A does is to compress traditional time-frames in suit disposal and to lend immediacy to an issue that would undoubtedly arise at the final disposal of the suit, several tortuous years later. The Section does not in any manner indicate that, once taken, that plea of jurisdiction, one that is fundamental and goes to the root of the matter, can be bypassed by either side. 19. It is therefore not correct to suggest that the jurisdictional objection can only be taken in answer to an application for interim reliefs by a plaintiff. It can also be taken in an application brought by the defendant for vacating those reliefs earlier granted against it. The use of the phrase “any of the parties” in relation to the raising of the jurisdictional objection is another clue: such a plea may also be taken by a plaintiff in response to a counter-claim. 20. This is precisely the frame of the 2nd Defendant’s Notice of Motion (L) 1464 of 2014. This is clear from the existing prayer (a) of that Notice of Motion, one that seeks a recall of the order in the earlier Review Petition. That order granted certain reliefs. Review was sought of an order in the Plaintiffs’ first Notice of Motion No. 2435 of 2011 in which interim reliefs were first granted. The 2nd Defendant’s Notice of Motion raising a preliminary issue of jurisdiction is, therefore, an application made for vacating interim relief earlier granted; and the plea of a jurisdictional bar can properly be taken in such a Notice of Motion. 21. Should the fact that issues have been framed in Suit itself make any difference and can that fact be used to defeat the provisions of Section 9A? In this context, I believe the decision of Supreme Court in Foreshore is completely unambiguous. Section 9A sits wholly outside the framework of Order XIV of the CPC and is a self-contained code. Should the fact that issues have been framed in Suit itself make any difference and can that fact be used to defeat the provisions of Section 9A? In this context, I believe the decision of Supreme Court in Foreshore is completely unambiguous. Section 9A sits wholly outside the framework of Order XIV of the CPC and is a self-contained code. There is, therefore, no question of Section 9A has been subject or subordinate to the provisions of Order XIV Rule 2 of the CPC. 22. I am, of course, bound not only by the decisions of the Supreme Court in Foreshore and of the Division Bench in Mukund Ltd. but also by the Appeal Court order on 2nd July 2015 even though that order says in terms that the Appeal was decided without an examination of the rival claims on merits. At this stage, I am not examining the rival claims on merits either. I am only dealing with limited submission as to whether or not preliminary issue under Section 9A can be framed or not. In my view, that preliminary not only can be framed, but must be framed; it cannot be avoided either by the Plaintiffs withdrawing their Notice of Motion or by a dismissal simpliciter of the 2nd Defendant’s Notice of Motion. 23. Accordingly, the following preliminary issue is framed: “Whether the Plaintiffs prove that the suit as filed is within limitation?” 24. This is necessarily a mixed question of facts and law. Mr. Talreja confirms that the Plaintiffs wish to lead evidence on the issue of limitation. The Plaintiffs will, therefore, on or before 3rd August 2015, file and serve their (i) Evidence Affidavit, and (ii) Affidavit of Documents and compilation of documents, if any; as the issue is being tried as a preliminary issue, the evidence affidavit and the affidavit of documents and compilation shall all be restricted and confined to the question of limitation. 25. List the suit for marking documents on the preliminary issue on 10th August 2015. The 2nd Defendant’s Notice of Motion (L) No. 1464 of 2014 is also to be listed on that date.