Appeal From Order No. 50 of 1986. Case: Captain Nanda Vs Amarnath P. and Ors.. High Court of Bombay (India)
| Case Number | Appeal From Order No. 50 of 1986 |
| Counsel | For Appellant: K.J. Abhyankar and Roop M. Vasudeo, Advs. and For Respondents: S.R. Shah and A.C. Kotwani, Advs. |
| Judges | H. Suresh, J. |
| Issue | Transfer of Property Act, 1882 - Section 111; Bombay Rents Hotel and Lodging House Rates Control Act, 1947 - Sections 12, 13 and 28 |
| Citation | 1990 (3) BomCR 601 |
| Judgement Date | September 17, 1990 |
| Court | High Court of Bombay (India) |
Judgment:
H. Suresh, J.
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Respondent No. 2 filed a suit in the Bombay City Civil Court, being Suit No. 1537 of 1984 as against the present appellant/defendant No. 2 and also one Amarnath P. for a declaration that the present appellant as also the said Amarnath have no right of any nature to enter upon the property of the plaintiff and also for an injunction restraining them from trespassing or entering upon the plaintiff's property known as Akash Deep situated at Gamdevi, Bombay-400 007. He took out a notice of motion for interim reliefs, being Notice of Motion No. 1407 of 1984. In that notice of motion, the present appellant took up a contention that the Bombay City Civil Court had no jurisdiction to entertain and try this suit. That objection was raised under section 9-A of the Code of Civil Procedure. The learned Judge, accordingly, framed a preliminary issue and decided the same by his order dated 2-5-1985 whereby he held that the Bombay City Civil Court had jurisdiction to entertain and try the suit. It is against that order, the appellant has preferred the present appeal.
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It is well settled that the question of jurisdiction when raised under section 9-A of Code of Civil Procedure, has to be decided on the basis of the averments made in the plaint. Let us, therefore, consider the averments made in the plaint. It is the contention of the present appellant that the suit falls within the scope of section 28 of the Bombay Rent Act, 1947.
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The plaint shows that the plaintiff (respondent No. 3) and defendant 3 to 13 are the owners of the property known as Akash Deep. The said building comprises of a basement where mostly garages/work shops were situated and the floor wits six upper storeys were occupied by tenants. The Plaintiff says that defendant No. 1, the said Amarnath, was of tenant in respect of a garage and a workshop situated in the basement of the said building. It is the case of the plaintiff that defendant No. 1 had unlawfully parted with possession of the said premises to defendant No. 2, the present appellant. He has further stated that at the material time, in August 1983 defendant No. 2 was in use and occupation of the said premises.
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It appears that during the monsoon, on 5th August, 1983, the entire building collapsed and the entire structure including the premises in occupation of defendants 1 and 2 came down and completed collapsed. The plaintiff says that since then, the area where the suit premises is situated, is being used as a doping place by the plaintiff and the other owners of the property, and the salvaged material has been kept and stored in the said portion. The plaintiff says that the Bombay Municipal Corporation has not allowed reconstruction of any structure on the said property. All the plans submitted by the plaintiff and defendants 3 to 13 have not been passed by the Bombay Municipal Corporation.
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Strangely, the plaintiff submits that as a result of the collapse of the house and destruction of the structure, all the rights in respect of defendants No. 1 stood extinguished and that defendants 1 and 2 have no right of any nature over the suit premises or any part thereof and/or over the...
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