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IN THE HIGH COURT OF BOMBAY
P.S. Patankar, J.
K.S. Jhunjhunwala and another.....Appellants.
Versus .
Tayebhai Mohammedbhai Bagasapwalla and others....Respondents.
Appeal from Order No. 1407 of 1991, in Notice of Motion No. 2315 of 1991, in L.C. Suit No. 1407 of 1991, decided on 31-10/1-11-1996.
Advocates appeared :
A.Y. Sakhare i/b Mansukhlal Hiralal Co., for appellants.
Milind Sakhardande with Anil C. Singh, for respondent Nos. 1 and 2.
Kiran Patil, for respondent No. 7
N.V. Walawalkar, for B.M.C.
-Section 28-See Contempt of Courts Act,` 1971.
Order XXXIX, Rules 1 and 2-See Contempt of Courts Act, 1971.
Section 2(b)-Bombay Municipal Corporation Act, 1888, Sections 351 and l54-Code of Civil Procedure Code, 1908, Order XXXIX, Rules 1 and 2-Bombay Rents Hotel and Lodging House Rates Control Act, 1947, Section 28-Grant of mandatory Injunction without jurisdiction-injunction disobeyed granted by Civil Court-Contempt proceeding-Grant of injunction under Section 28, Tenancy Act illegal-Non-disobedience of injunction not proved for committing contempt-Void ab initio order-Appeal from order is allowed.-If the order passed is without jurisdiction or void ab initio it is not binding on the parties and for committing breach thereof, there can be no punishment for contempt. Section 2(b) of the Contempt of Courts Act, 1971 contemplates willful disobedience of any order which is passed with jurisdiction. If the order is without jurisdiction, whether ad interim or final, a person cannot be held guilty for committing breach thereof. By amendment Maharashtra Act 65 of 1977. Section 9-A was introduced to section that legitimate claim of a party to get interim order should not be affected merely because some frivolous objection to jurisdiction is raised by the other side. As otherwise this may defeat the very purpose of a suit or give unfair advantage to other side. But if the order passed is without jurisdiction, then it is void ab initio and binds none.
Section 2(b)-order whether ad interim or final passed without jurisdiction-Order void ab initio-A person cannot be held guilty for committing breach thereof.-If the order is without jurisdiction whether ad interim, interim or final, a person cannot be held guilty for committing breach thereof.
2.The learned Judge of the City Civil Court passed the order dated 2-12-1991 convicting the Appellant No. 1 in civil prison of one month for breach of the order passed in the suit, dated 15-2-1991. The same is challenged in this Appeal.
3.I am not traversing the whole field of facts, but only giving a few.
4.Respondent Nos.1 and 2 are plaintiffs. The suit came to be filed against the appellant No. 2 its managing director and Municipal Corporation of Greater Bombay. The appellant No. 1 came to be added as respondent No. 1 in the notice of motion as he was found to be carrying on the construction work. It was averred in the plaint that they were owners in respect of the property being City Survey No. 730(B) admeasuring about 12090 sq.mtrs and structure standing thereon. Part of the structure from ground and first floor was let out to the appellant No. 2 for commercial purposes. The building caught fire on 25-8-1989 and partly it was gutted and destroyed. It was alleged that the tenancy rights came to be extinguished and/or stood in abeyance in view of this clamity. It was further alleged that the appellants are not entitled to carry out any construction and/or further construction on the said premises and the Bombay Municipal Corporation had issued notice under section 354 of the Bombay Municipal Corporation Act, 1888. It was averred that provisions of Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short Bombay Rent Act), were not attracted. It was prayed that Bombay Municipal Corporation be directed by mandatory order to issue further notices under section 351 of B.M.C. Act to the appellants to demolish whole structure and they should be restrained from carrying on any construction, or any further construction on the disputed land in any manner whatsoever and/or from entering upon the said property through their contractors and/or instructing their contractors, developers to carry on any work of construction of any nature whatsoever.
5.Respondents 1 and 2 took out Notice of Motion No. 949/1991 and ex-parte order dated 15-2-1991 restraining appellants from carrying on any work in suit property was passed and Court appointed Commissioner to visit the suit property and make a report to the Court. A report was submitted which pointed out that appellants have proceeded with the construction work/activity on the suit premises. The respondents took out Notice of Motion No. 2315 of 1991 against the appellants and others for violation of the order of injunction dated 15-2-1991.
6.On 16-8-1991 a Notice of Motion No. 4860/1991 was taken out on behalf of the appellants for determination of issue of jurisdiction and to decide it as a preliminary one. The appellants contended that suit fell under section 28 of Bombay Rent Act and therefore the City Civil Court, Bombay has no jurisdiction. The said Notice of Motion came to be dismissed by the learned Judge of the City Civil Court by passing the order on 29-11-1991 holding that the City Civil Court has jurisdiction to decide the suit.
7.The Notice of Motion No. 949/1991 taken out by the respondent Nos.1 and 2 praying for grant of interim injunction restraining the appellants from carrying out any construction work and appointing Court receiver was heard and the learned Judge granted the same on 29-11-1991. This is challenged by appellants by filing Appeal from Order No. 1406/1991
8.The order passed by the learned Judge of the City Civil Court holding that the City Civil Court was having the jurisdiction to decide the suit came to be challenged on behalf of the appellants by filing Civil Revision Application No. 888 of 1996.
9.The appellants also challenged the order of punishing the appellants for contempt in Notice of Motion No. 2
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