DENA BANK Vs. DEVI EXHIBITORS

JUDGEMENT

(1.) This petition is directed against the order passed by the 2nd joint Civil Judge (S. D.) Surat which is confirmed by the Joint Judge Surat in Miscellaneous Civil Appeal No. 89 of 1983. The facts which gave rise to this petition may be stated as under :

(2.) The learned Advocate Shri Vin who appeared on behalf of the Bank showed in the map and strenuously urged that the property on which the Shroff Towers were being constructed was part of the mort- gaged property and that there was a gross error committed by two courts when they came to the conclusion that this position was doubtful. It was thereafter submitted that if Shroff Towers are constructed and the offices and shops are allotted to different persons it would be difficult to sell the mortgaged property for realisation of the dues of the bank and multiplicity of legal proceedings would arise and therefore the defendants must be restrained from transferring any part of the mortgaged property. It was made clear that injunction in regard to construction of Shroff Towers was not pressed. However what was pressed was that Shroff Towers may be constructed but no part of the Shroff Towers as office shop or any in any manner may be booked or transferred in any manner whatsoever to any person. The question which the two courts considered was as to whether such an injunction was necessary and where did balance of convenience lie ? The Civil Judge Senior Division and also the Joint District Judge came to the conclusion that as Kinnari theatre was sufficient for realising the dues of the bank the balance of convenience was in favour of the defend- ants. The reason was that if after spending considerable amounts the Shroff Towers are constructed and they were kept vacant the defendants would be put to a great loss while the Bank was secured because Kinnari theatre was a valuable property which could satisfy the dues of the Bank. The learned Advocate Shri Vin to support his contention that there was jurisdictional error drew my attention to three cases.

(3.) The first case is the case of CHAUBE JAGDISH PRASAD AND ANOTHER V. GANGA PRASAD CHATURVEDI REPORTED IN A.I.R. 1959 SUPREME COURT AT PAGE 492. There it was held that if the court assumes jurisdiction by erroneous decision of jurisdictional fact the High Court is required to interfere under sec. 115 of the Civil Procedure Code. It was held that if an erroneous decision of a subordinate court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exorcise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out. It was a case under Houses and Rents- U.P. (Temporary) Control of Rent and Eviction Act. It was observed as under Under sec. 5(4) of the U.P. (Temporary) Control of Rent and Eviction Act the landlords right of suit was restricted to challenging the inadequacy of the reason- able annual rent but he could not sue for varying the agreed rent. Where the landlord brought his suit on the ground of inadequacy of the reasonable rent as determined under sec. 3A its maintainability depended on the determination of the jurisdictional fact i.e. date of its construction whether it was before or after 30/06/1946 on the decision of which would depend his right to bring the suit because if there was no new construction the agreed rent would be operative and the landlord would have no right of suit under sec. 5(4) of the Act. Consequently by wrongly deciding this question the trial Court would be entertaining a suit by the landlord for enhancement of the agreed rent and thereby assuming jurisdiction it did not possess. In such a case the High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided.