SUPER STEELS Vs. AHMEDABAD MUNICIPAL CORPORATION

JUDGEMENT

(1.) This appeal at the instance of the original plaintiff of Civil Suit No. 978 of 1975 on the file of the learned City Civil Judge Ahmedabad is directed against the order of the learned Single Judge of this Court dismissing the First Appeal of the plaintiff being First Appeal No. 38 of 1980 against the judgment and order of the City Civil Judge dismissing the suit of the plaintiff as the learned Single Judge found himself unable to enter into and adjudicate upon the only and the material issue whether the premises in question were in existence before the Bombay Provincial Municipal Corporations Act 1949 became applicable

(2.) The reason of the inability of the learned City Civil Judge to enter into and adjudicate upon the material issue was in his opinion the observation of the learned Single Judge of this Court in an unreported decision in First Appeal No. 828 of 1973 decided on 12/ 13/07/1977 by our learned Brother N. H. Bhatt J.

(3.) At the time of hearing of this appeal the learned Advocate appearing on behalf of the appellant urged that the learned City Civil Judge was in error and for that matter the learned Single Judge of this Court was also in error in confirming his order that the Civil Court could not have decided the question whether the premises in dispute existed before the Bombay Provincial Municipal Corporations Act 1949 (hereinafter referred to as the said Act) was made applicable inasmuch as the exercise of the jurisdiction by the Competent Court under sec. 260 of the said Act would depend upon the adjudication of that colateral fact. In other words it was submitted that the question whether the premises in dispute were in existence before the said Act was put on the statute book and made applicable was a jurisdictional fact and any erroneous decision thereon is always subject to judicial scrutiny. In submission of the learned Advocate for the appellant the learned City Civil Judge had read more than what was warranted in the earlier decision of the learned Judge of this Court in First Appeal No. 828 of 1973.