GIRISH MANOHAR WAZALWAR Vs. PURUSHOTTAM PARASRAM KOTANGALE

JUDGEMENT

(1.) GROUP of all these civil revision applications arise out of the common order dated 29-10-1994 passed by the 2nd Joint Civil Judge, Junior Division, Nagpur, in six separate suits deciding the preliminary issue regarding jurisdiction and since common questions are involved in all these six civil revision applications, these revision applications have been heard together and are disposed of by the common order.

(2.) THE Nagpur Improvement Trust (for short N. I. T.) issued the notice under section 286 (2) of the City of Nagpur Corporation Act, 1948 (for short the Corporation Act) read with section 52 of the Nagpur Improvement Trust Act (for short the N. I. T. Act) to Girish Manohar Wazalwar (owner of the property and applicant in all the revision applications), Shri Hokchand Rupchand Jankalyani, Shri Purshottam Parasram Kotangale (tenant and non-applicant No. 1 in C. R. A. No. 1362/94), Shri Dulichand Shriram Dhawariya (tenant and non-applicant No. 1 in C. R. A. No. 1363/94), Shri Keshanand Tanumal Chawlani (tenant and non-applicant No. 1 in C. R. A. No. 1364/94), Shri Benzamin Anthony Carlo (tenant and non-applicant No. 1 in C. R. A. No. 1365/94), Shri Chetan Rupchand Jaikalyani (tenant and non-applicant No. 1 in C. R. A. No. 1366/94) and Shri Hotchand Rupchand Jaikalyani (tenant and non-applicant No. 1 in C. R. A. No. 13670/94) on 30-6-1994, asking the aforesaid persons to remove the unauthorised constructions as mentioned in aforesaid notices, being in possession of the aforesaid six tenants and the property owned by the own Girish Manohar Wazalwar. On the receipts of the said notice, all the aforesaid tenants filed separate applications under section 286 (3) of the Corporation Act read with section 52 of the N. I. T. Act for extension of time before the District Court, Nagpur. Each of the tenants in the application filed under section 286 (3) of the Corporation Act read with section 52 of the N. I. T. Act prayed that the time mentioned in the notice dated 30-6-1994 be extended by three months from the date of the application. It was inter alia, averred in the applications by the tenants that they were occupying the premises as tenants owned by the owner Girish Manohar Wazalwar for the last more than 32 years and they have been paying the rent to the landlord regularly. According to the tenants, the said notice have been got issued by the owner landlord from the N. I. T. with an attempt to evict the tenants and oust them from premises, depriving them of the peaceful enjoyment of the premises and civil rights. Thus, it was averred by the tenants that the notice issued by the N. I. T. was illegal, mala fide and an act of colourable exercise of power. The tenants clarified in the applications that the notice issued by the N. I. T. and received by them would be challenged by them in civil suit and since the mandatory notice under section 115 of the N. I. T. Act is necessary, the time given in the notice deserves to be extended, so that statutory compliance of section 115 of the N. I. T. Act could be done. The applications filed by the tenants under section 286 (3) of the Corporation Act read with section 52 of the N. I. T. Act were allowed by the 6th Additional District Judge, Nagpur, by an order dated 20-7-1994 and it was directed that the period of notice of 28 days is extended by two months from the date of the said order. The tenants then served upon the notice under section 115 of the N. I. T. Act and filed six separate suits in the Court of the 2nd Joint Civil Judge, Junior Division, Nagpur, against the N. I. T. In the said suits, the owner/applicant moved an application for impleadment and accordingly he has been impleaded as defendant No. 2 in the suits. In all the suits, the tenants averred that they were tenants in the premises and the notice has been issued by defendant No. 1 in collusion with defendant No. 2 since the owner wanted the premises to be got vacated from them without following the process of law. According to the tenants/plaintiffs the defendant No. 2/owner intended to evict all the tenants by instigating the officials of the N. I. T. to demolish the suit property in the occupation of the tenants on the false ground of unauthorised construction. The defendant No. 2 owner succeeded in his unlawful design and has got the impugned notice for demolition under section 286 (2) of the Corporation Act read with section 52 of the N. I. T. Act issued. The tenants set up the ground that issuance of notice by the N. I. T. was mala fide. The tenants in the suit also averred that the suit premises were constructed by the father of the owner about 50 years before and during all this time no action was ever taken by the N. I. T. and, therefore, the N. I. T. by issuing the notice has exceeded its jurisdiction.

(3.) ALONG with the plaints, the tenants made applications for grant of temporary injunction and the defendant No. 2 owner in his reply to the applications under Order XXXIX rules 1 and 2 of the Code of Civil Procedure filed by the tenants, raised an issue that the civil Court has no jurisdiction to entertain the suits and since the issue of jurisdiction goes to the root of the case, the owner (present applicant) prayed that the question of jurisdiction be decided as preliminary issue. On the application filed by the applicant under section 9-A of the Code of Civil Procedure, the trial Court in all the suits framed the preliminary issue, viz -