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1995 Supreme(Bom) 191

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
R.M. Lodha, J.
Girish Manohar Wazalwar .... Applicant.
Versus
Purushottam Parasram Kotangale .... Non-applicants.
Civil Revision Application Nos.1362, 1363, 1364, 1365, 1366 1367 of 1994, decided on 28-03-1995.
Advocates appeared :
C.S. Kaptan, for the applicant in C.R.A Nos. 1362, 1363, 1364, 1365, 1366 1367.
V.G. Moharil, for the non-applicant No. 1 in C.R.A Nos. 1362, 1363,1364 1367.
M.P. Badar, for the non-applicant No. 2 in C.R.A Nos. 1362, 1363, 1364, 1365, 1366 1367.
A.S. Mardikar, for the non-applicant No. 1 in C.R.A No. 1365.
S.K. Kunjwani, for the non-applicant No. 1 in C.R.A. No. 1366.

Headnote:Sections 286(2),(5) and 287-Civil Procedure Code, 1908, Section 9 - Jurisdiction of Civil Court-Aggrieved notice of corporation under Section 286 of Act can invoke jurisdiction of Civil Court.

       Section 9-Scope of.

       A look at the Corporation Act and the N.I.T. Act would clearly reveal that the provisions of the said Act even if assumed to have created rights or liability do not provide any remedy for its enforcement. In its entirety not only that the averments made by the plaintiffs in their suits challenging the banafides and the jurisdiction of the N.I.T. in issuing such notice would clearly make out a case for infringement of civil rights and jurisdiction of the civil Court for trial of the suit. The very fact that the suit premises are alleged to have been constructed in the year 1945-46 and N.I.T. took the action after a span of 50 years and, therefore, a ground that the N.I.T. has exceeded in its jurisdiction, even otherwise made out a case for trial of the suit by the civil Court since the very jurisdiction of the N.I.T. in issuing such notice is under challenge and on that basis, it cannot be said that the suits filed by the plaintiffs are not maintainable.

       Beside that, there are serious allegations about the collusion of the concerned officials of the N.I.T. with the owner in having got the notice issued, and this also sufficiently establishes that such issue would be decided by the civil Court and it cannot be said that the suits filed by the plaintiffs were expressly or impliedly barred.

       The trial Court has thus properly considered the question on the basis of various decisions of the Apex Court and rightly concluded that the civil Court has jurisdiction to try the suits. The issue whether the civil Court has jurisdiction to try the suits has rightly been answered in the affirmative and does not call for any interference by the High Court.

JUDGMENT - R.M. Lodha, J.:---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 te





















































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