Mr Dinesh Kumar Chunilal Jain v. Ismail Mohammed Lakdawalla and Anr.

Bombay HC27 Mar 2014CRA/158/2014

Case brief

AI extract

What is this about?

The Division Bench observed that civil revision applications challenging a Civil Court's jurisdiction were rendered infructuous after the applicant withdrew the jurisdiction object. The Court allowed the defendant to lead evidence on the preliminary issue of jurisdiction to be decided by the Trial Court along with other issues.

What did the court decide?

The impugned orders were declared to have no survival value; the defendant was permitted to lead evidence on the issue of jurisdiction.

Mr Dinesh Kumar Chunilal Jain Vs Ismail Mohammed… — Municipal and Town Planning | Bombay HC (2014)

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CRA.158.159.160.2014.904.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO. 158 OF 2014

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Dinesh Kumar Chunilal Jain } Applicant versus Ismail Mohammed Lakdawalla } and Anr. } Respondents

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WITH

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CIVIL REVISION APPLICATION NO. 159 OF 2014

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Dinesh Kumar Chunilal Jain } Applicant versus Suleiman Moosa and Anr. } Respondents

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WITH CIVIL REVISION APPLICATION NO. 160 OF 2014

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Dinesh Kumar Chunilal Jain } Applicant versus Nizam Waris Khan and Anr. } Respondents

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Mr. R. P. Ojha i/b. Mr. R. K. Ojha for the Applicants. Mr. Ashok R. Pande for Respondent No. 1.

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CORAM :- R. M. SAVANT, J. DATED :- MARCH 27, 2014

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P.C. :-

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The above Civil Revision Applications take exception to three identical orders all dated 3^rd December, 2013 passed by the learned Judge of the City Civil Court, Mumbai, by which orders, the learned Judge has ruled that the said Court has jurisdiction to entertain and decide the Suit. The Applicant in each of the Civil Revision Applications is the Defendant No. 2 in the Suits in question, which are

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Page 1 of 4

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J.V.Salunke,PA

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CRA.158.159.160.2014.904.doc

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filed by the Respondent No. 1 in each of the above Civil Revision Applications. In the said Suits, the Plaintiffs have sought for a declaration that the notice issued under Section 351 of the Bombay Municipal Corporation Act (hereinafter referred to as “the said Act”) dated 28^th August, 2001 and the order passed thereon dated 24^th October, 2001 for demolition of the disputed premises is illegal etc. The Plaintiffs have also sought a perpetual injunction against the Defendants restraining them from taking any action against the notice structure in pursuance of the said notice.

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It appears that the Applicant in each of the Civil Revision Applications i.e. the Defendant No. 2 in the Suits raised an objection as regards the jurisdiction of the City Civil Court to try the Suit in view of the provisions of Section 28 of the Bombay Rent Act, as, according to the Defendant No. 2, it was a Suit between the landlord and the tenant and therefore it would be the Small Causes Court which would have jurisdiction. The second objection raised is on account of Section 527 of the said Act and the non compliance of it in the manner f issuing notice to the Municipal Corporation prior to the filing of the Suits and the third objection is based on Section 515(A) of the said Act, barring the jurisdiction of the Civil Court for challenging the notice under Section 351 and 345(a) of the said Act.

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Page 2 of 4

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J.V.Salunke,PA

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CRA.158.159.160.2014.904.doc

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It appears that the Plaintiffs had filed a Notice of Motion for injunction against the Defendants Nos. 1 and 2 in the said Suits, which Motions were allowed and there is an injunction running against the Municipal Corporation from taking action against the structures in question, pursuant to the said notice. It appears that the Suits also proceeded in the sense that the Plaintiffs have laid their evidence and have been also cross examined on behalf of the Municipal Corporation. Pertinently, the Defendant No. 2 did not cross examine the Plaintiffs' witnesses. On the insistence of the Defendant No. 2 that the Trial Court took up the adjudication of the preliminary issue, having regard to Order XIV Rule 2 of the Civil Procedure Code. On such consideration, the Trial Court held that it has the jurisdiction as stricto senso the Suits in question are not between the landlord and tenant and are in respect of a challenge to the notice under Section 351 of the said Act.

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During the course of the hearing of the above Civil Revision Applications, the learned Counsel appearing for the Applicant Shri. Ojha, on instructions, states that the Applicant would withdraw the Applications for deciding the issue of jurisdiction, as an issue to be tried under Order XIV Rule 2 of the Civil Procedure Code that the Trial Court may decide the said issue with the other issues, after affording an opportunity to the Defendant No. 2 to lead evidence in the Suits. Upon

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Page 3 of 4

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J.V.Salunke,PA

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CRA.158.159.160.2014.904.doc

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this, the learned Counsel appearing for the Respondent No. 1 i.e. the original Plaintiff Shri. Pande, on instructions, states that the Plaintiffs have no objection to the said course of action being followed, as in fact evidence was led in the Suit itself. In view of the statement made by the learned Counsel appearing for the Applicant Shri. Ojha, the impugned orders do not survive for consideration and the Civil Revision Applications have accordingly turned infructuous. However, in view of the consensus between the learned Counsel for the parties, the same are disposed of by issuing the following directions:-

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(i) In view of the statement of the learned Counsel appearing for the Applicant Shri. Ojha, the impugned orders do not survive for consideration, as the Applicant has withdrawn the Applications for deciding the preliminary issue as an issue under Order XIV Rule 2 of the Civil Procedure Code. The said issue would be decided by the Trial Court with the other issues in the Suit.

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(ii) The Defendant No. 2 would be allowed to lead evidence in the Suits. The learned Counsel appearing for the Applicant states that the Defendant No. 2 would file his evidence on 9^th May, 2014 in each of the Suits.

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(iii) The learned Counsel appearing for the Applicant states that except the Defendant No. 2, evidence of no other witness would be adduced.

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(iv) The trial Court would accordingly fix the schedule for hearing of the Suits in terms of the directions contained in this order.

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(R. M. SAVANT, J.)

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Page 4 of 4

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J.V.Salunke,PA

Mr Dinesh Kumar Chunilal Jain v. Ismail Mohammed Lakdawalla and Anr.

Case brief

What is this about?

What did the court decide?

Mr Dinesh Kumar Chunilal Jain v. Ismail Mohammed Lakdawalla and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

Coram

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