What should be the considerations in deciding the application filed under Section 9A(2) of the Code is the limited issue to be addressed in the present petition.
9) Once an objection is raised as regards to the jurisdiction of the Court to entertain and decide the suit, it becomes imperative for the said Court in view of the mandate of Section 9A(1)of the Code to decide the said objection as a preliminary issue before granting or setting aside the order granting the interim relief.
10) The question arises what would be the course open for the plaintiff if his prayer for interim relief is not likely to be considered till the Court determines the issue of jurisdiction. Clause (2) of Section 9-A takes care of such a situation under which even during this interim period till adjudication of the preliminary issue, the Court is empowered to grant interim relief purely on interim basis. A mere objection to the jurisdiction does not instantly disable the Court from passing any interim order as may be called for in the facts and circumstances of the case.
11) The next question crops up whether the same principles would apply and the same tests to be applied while granting or refusing the relief as prayed under section 9-A(2) as are applied ingranting or refusing the reliefs prayed for under Order 39 Rule 1 of the Code? The answer in my opinion is "No". I however do not mean to say that such interim protection is to be invariably given as of right. What is contemplated by Clause (2) is that if the exigencies of the situation impress the Court that either of the sides needs to be protected, without wasting any time, however short it may, which may be consumed for determining the said preliminary issue, then the Court may grant such an interim relief as it thinks proper. No deeper scrutiny is thus required while granting interim relief under this Clause. The interim order so passed undoubtedly comes to an end with the decision of the Court on the point of jurisdiction. It is only after the affirmative decision on the issue of jurisdiction that the Court gets vested with the power to grant interim relief or set aside the order granting interim relief as the case may be. As such, while passing the order under Section 9A(2) of the Code, it is not the requirement of the law that there shall be a deeper scrutiny whether all the three ingredients i.e. prima facie case;
balance of convenience and irreparable loss, exist or not. If the Court chooses to adopt such course it would amount to decide the interim application without first deciding the issue of jurisdiction which is impermissible as provided under Section 9-A(1) of the Code and nothing would then remain to be considered at the hearing of the interim relief application.
12) In the instant matter, the trial court is noticed to have committed such mistake.
Perusal of the impugned order shows that when the trial court was supposed to consider the application under Section 9-A(2) limited to the extent whether till decision of the application under Section 9-A, the plaintiff was liable to be given any protection from the apprehended action, the trial court indulged in a deeper scrutiny by framing points as if it was deciding the interim application. The Trial Court has utterly failed in understanding the import of the provisions made under Section 9-A(2) of the Code. Such interim and most temporary protection, in my opinion, can only be refused if the Court finds that there is absolutely no case, even prima facie, for grant of such relief and more importantly if grant of such relief is likely to result in causing irreparable loss to the party opposing for grant of such relief.
Bombay High Court
Madhu Ramesh Jain vs The State Of Maharashtra And ... on 6 June, 2016
Bench: P.R. Bora
Citation: 2016 SCC On Line Bom 5462
(W.P.No.9256 of 2015)
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