CAPTAIN NANDA Vs. AMARNATH P

JUDGEMENT

(1.) 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 plaintiffs 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.

(2.) 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.

(3.) 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.