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Union of India (Uoi) Vs. Laljee Brothers and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation;Property
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1910 of 1983
Judge
Reported in1984(1)BomCR20
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9A - Order 1, Rule 3; Income Tax Act, 1961 - Rules 9 and 11(6); Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 28
AppellantUnion of India (Uoi)
RespondentLaljee Brothers and ors.
Appellant AdvocateA.V. Sawant, A.G., ;M.R. Kotwal , Government Pleader and ;A.N. Samant, Adv.
Respondent AdvocateMadhukar Soochak and ;S.J. Jadhav, Advs. for respondent No. 1 and ;N.H. Gursahani and ;Leena N. Samant, Advs. for respondent No. 2
Excerpt:
direct taxation - recovery of tax - section 9-a of code of civil procedure, 1908, rules 9 and 11 (6) of income tax act, 1961 and section 28 of bombay rents, hotel and lodging house rates control act, 1947 - plaintiff was in possession of suit premises as licensee - suit filed by plaintiff after death of landlord against executor of will - probate granted in favour of executor who was dead - income tax department attached property for recovery of dues - in auction sale defendant was highest bidder - plaintiff filed application for amendment of plaint and joinder of parties - trial court allowing plaintiff to implead union of india and auction purchaser as party defendant - granted amendment of plaint and interim injunction restraining dispossession of plaintiff from suit premises - union.....c.s. dharmadhikari, j.1. this writ petition has been filed by the union of india against the order passed by the small causes court, bombay in an interim notice no. 3324 of 1983 in r.a.e. declaratory suit no. 1270/4483 of 1973, on 1st june, 1983, granting plaintiffs' application in terms of prayer clauses (a), (b) and (c), or para 30, thereof namely allowing the plaintiffs to implead the union of india and shri mistry as party defendants to the suit, granting amendment of the plaint and ad interim injunction restraining the union of india and k.k. mistry from dispossessing the plaintiffs from the suit premises.2. it appears from the record that the plaintiffs filed a suit initially against one shri saxena, executor of the will to late shrimati meenakumari. in the said suit, it was the.....
Judgment:

C.S. Dharmadhikari, J.

1. This writ petition has been filed by the Union of India against the order passed by the Small Causes Court, Bombay in an interim notice No. 3324 of 1983 in R.A.E. Declaratory Suit No. 1270/4483 of 1973, on 1st June, 1983, granting plaintiffs' application in terms of prayer Clauses (a), (b) and (c), or para 30, thereof namely allowing the plaintiffs to implead the Union of India and Shri Mistry as party defendants to the suit, granting amendment of the plaint and ad interim injunction restraining the Union of India and K.K. Mistry from dispossessing the plaintiffs from the suit premises.

2. It appears from the record that the plaintiffs filed a suit initially against one Shri Saxena, Executor of the Will to late Shrimati Meenakumari. In the said suit, it was the case of the plaintiffs, M/s. Laljee Brothers a registered firm, that they were placed in possession of the suit premises on 16th October, 1972, as licensee. They were in possession of the premises lawfully on the 1st day of February, 1973, and had, therefore, become protected tenant-under section 15-A, of the Bombay Rent Act. The original defendant Shri Saxena, died on 28th of April, 1979, and thereafter no steps were taken by the plaintiffs to bring his legal representative on record. It appears from the record that even prior to the alleged licence created in favour of the plaintiffs on 16th of October, 1972, the suit property was attached by the Income Tax Department for the recovery of tax due. A notice regarding attachment of the property was issued on 4th of August, 1972, whereby at further transactions were prohibited. On 6th of August 1972, the Union of India issued an order under Rule 22 of 2nd Schedule to the Income Tax Act attaching the suit flat and other assets of the deceased Meenakumari. As already stated the licence in favour of the plaintiffs was created on 16th of October, 1972, and it is the case of the plaintiffs that it was created with the permission and consent of the Union of India. On 17th of August, 1973, present suit came to be filed against Shri Saxena who was the Executor mentioned in the will of the deceased Meenakumari. The suit was filed for a declaration that the plaintiffs were the tenants of the suit premises. On 2nd of July, 1973, a standard rent application was filed by the plaintiffs against Shri Saxena in which the Union of India had intervened. It is the case of the Union of India that on 24th of July, 1974, a Probate was granted by the High Court in favour of Shri Saxena who was the sole defendant to the suit and who died in the year 1979. The department took steps for recovery of amount of tax by taking steps to sell the property by auction. On 20th of March, 1983, a writ petition bearing Writ Petition No. 713 of 1983, was filed by the plaintiffs before this Court challenging the first proclamation of sale which was subsequently withdrawn. By an application dated 22nd of March, 1983, the plaintiffs raised objections to the auction sale. These objections were rejected by the Tax Recover Officer vide his order dated 25th of March 1983. On 26th day of March, 1983, the second sale proclamation in respect of the auction sale of the suit premises was issued. The plaintiffs on 20th of April, 1983, again filed a writ petition before this Court bearing Writ Petition No. 1043 of 1983, challenging the order of Tax Recovery Officer dated 25th of March, 1983, and also proclamation of sale. The said writ petition was rejected by this Court on 27th of April, 1983. Then on 29th of April, 1983, the auction sale was held in which the plaintiffs as well as the second respondent participated. The 2nd respondent Shri Mistry was the highest bidder. On 5th of May, 1983, the plaintiffs filed an application before the Small Cause Court at Bombay for joinder of the parties i.e. Union of India and Shri Mistry as party-defendants, to the suit pending in the Small Cause Court, Bombay and also prayed for ad interim injunction. By an order dated 1st of June, 1983, namely the impugned order, the Small Cause Court at Bombay allowed the application filed by the plaintiffs for joinder of the parties and also granted ad interim injunction. It is this order which is challenged in this writ petition by the Union of India on various grounds. The present writ petition was filed on 8th of June, 1983. On 9th of June, 1983, Rule was issued in the present writ petition and ad interim stay was granted to the operation of the order passed by the Small Cause Court at Bombay dated 1st of June, 1983. It then appears that on 15th of June, 1983, the auction sale was held and on 29th of April, 1983, was confirmed in favour of Shri Mistry and the sale certificate under Rule 65, of the Rules was issued. On 21st of June, 1983, Shri Mistry filed an application under Rule 39, of the Rules for possession of the suit premises and an order on the said application was passed on 23rd of June, 1983, and on 24th of June, 1983, the plaintiffs were removed from the suit premises in exercise of powers under rule 39, and possession was delivered to auction purchaser Shri Mistry. I am informed that in the meantime, that is, after the filing of this writ petition plaintiffs have filed 2 appeals against the order passed by the Tax Recovery Officer under Rule 44, read with Rule 86(1)(c), of the Rules framed under the Income Tax Act and the said appeals are pending.

3. The impugned order dated 1st of June, 1983, was passed by the Small Causes Court at Bombay on an application filed by the plaintiffs for amendment of the plaint as well as for joinder of parties. The Union of India has contested the said application and had raised various contentions. From the order of the Small Cause Court at Bombay---it appears that after hearing the parties the Small Cause Court passed the impugned order over ruling the contentions raised by the Union of India. As already observed it is this order which is challenged in this writ petition by the Union of India.

4. Shri Sawant the learned Advocate-General appearing for the Union of India contended before me that the order passed by the Judge of the Small Cause Court at Bombay is not only without jurisdiction but also is no order in law and, therefore, is a nullity. According to the Advocate-General in view of the mandatory provisions of section 9-A. of the Code of Civil Procedure, it was obligatory on the part of the Small Cause Court to have framed preliminary issues on the basis of various contentions raised by the Union India which related to the jurisdiction of the Court to hear and decide the suit. It was not open to the learned Judge of the Small Cause Court to have postponed the consideration of these preliminary issues to the hearing of the suit itself. Therefore, the said order is vitiated by an error apparent on the face of record apart from the fact that it is wholly without jurisdiction. Before the trial Court the Union of India had raised a contention the suit against the Union of India is not maintainable in the absence of a notice under section 80, of the Code of Civil Procedure. Further after the death of the sole defendant in the year 1979, since the legal representatives were not brought on record within the time prescribed by law, the suit as a whole stood abated and, therefore, no order regarding joinder of parties could have been passed by the Court. It was also contended by the Advocate-General that the Tax Recovery Officer had issued orders as regards the attachment and sale of the suit property in exercise of the power vested in him under the Income Tax Act read with the rules framed thereunder. Rule 9, and Rule 11(6), of the Second Schedule of the Income Tax Act, clearly indicate that the orders passed or the action taken could not have been challenged in a suit filed before the Small Cause Court. Therefore, the Small Cause Court had no jurisdiction to entertain and try the suit against the Union of India. It was also contended by the Union of India that the controversy now raised or sought to be raised by amendment of plaint is a outside the scope of section 28, of the Rent Act and, therefore, the Small Cause Court had no jurisdiction to entertain and try the suit against the Union of India under section 28 of the Rent Act. It was then contended that the amendment to the plaint could not have been allowed under Order VI, Rule 17, of the Code of Civil Procedure since the very controversy raised by the amendment was beyond the scope of section 28, of the Rent Act. Once such a jurisdictional question was raised the only procedure which the Court could follow was one as laid down by section 9-A, of the Code of Civil Procedure. Since the learned Judge has failed to follow the mandatory provisions of section 9-A, of the Code, the impugned order is wholly without jurisdiction, as the learned Judge has exercised the jurisdiction not vested in him by law. In support of his contentions the Advocate-General has placed strong reliance upon the Division Bench decision of this Court in Letters Patent Appeal No. 76 of 1979 Dr. (Smt.) Sadguna Chimanlal Shah and Mr. C.U. Shah, Trustees of C.U.. Shah Gandhi Education Foundation v. New Sagar Darshan Co-operative Housing Society Ltd., Bombay and others, decided on 20th September, 1979, and in an unreported decision of a Single Judge of this Court in Civil Revision Application No. 529 of 1982 Madras Race Club Ltd. v. Surendrakumar Hansraj Anand and others, decided on 13th/14th October, 1982. Apart from these two unreported decisions a reliance was also placed upon the decisions of this Court in : AIR1974Bom288 , A.K. Porbunderwala and Sons, v. Gulam Hussain Alibhai Nathani and another ; : AIR1977Bom35 , Radhakishin N. Advani v. Mrs. Sheila Gobind Mirchandani and another 1983 M.L.J. 141 Kranti Mohan Guruprasad Mehra and another v. Fatechand Vasuram Behal. In support of the contention that one the suit stands abated under Order 22, recourse cannot be taken to Order 1, Rule 10, of the Code the Advocate-General placed reliance upon the decisions in : AIR1958Cal681 , Sisir Kumar Tarafdar v. Mahindra Kumar Biswas and another A.I.R. 1964 Mys 293; C. Muttu v. Bharath Match Works, Sivakasi ; : AIR1977Ori137 Cuttack Municipality v. Shamsundar Behera and : AIR1983SC676 , Madan Naik by his heirs v. Mst. Hansubala Devi and others. The main complaint of the Advocate General is that inspite of these judgments of the High Courts and the mandatory provisions of section 9-A, of the Code of Civil Procedure, the trial Court has passed the impugned order without following these mandatory provisions.

5. On the other hand it is contended by Shri Soochak the learned Counsel appearing for respondents-plaintiffs that to the controversy raised by the Union of India before the trial Court or in this writ petition, the provisions of section 9-A, are not applicable. When the objections were raised by the Union of India, the Union of India was not a party to the suit and, therefore, the objections raised at that stage were not covered by section 9-A, of the Code. Assuming that section 9-A, applies still all the points raised were not connected with the question of jurisdiction. The term `jurisdiction' as used in section 9-A, will have to be construed in a traditional sense, namely territorial, pecuniary or relating to the subject-matter of the suit. The objections raised by the Union of India did not relate to any of these issues. Absence of notice under section 90, is not an absolute bar for entertaining the suit and in a given case even without such a notice, an order granting ad interim injunction could have been passed by the Court. There is no bar for passing an order for joining the Union of India as a party only because a notice under section 80 was not given.

6. So far as the question of abatement of the suit is concerned Shri Soochak contended that it is also not a jurisdictional issue. Under the amended Order 22 of the Code abatement is not automatic and, therefore, it cannot be said that the trial Court had no jurisdiction to entertain the suit or implead Union of India as a party to the suit. Further the suit is also not barred by any of the provisions of the Income Tax Act or Rules framed thereunder. On the other hand there is internal evidence available in the Rules, which conclusively proves that a right of a suit is either specifically conferred or is saved. In terms Rule 11(6), provides for such a suit since the order passed under the rules is made subject to the result of the suit. Assuming that in view of the provisions of Order 22, or other objections raised by the Union of India, the Union of India could not have been joined as a party to the suit, still the Court had a power to join the Union of India as a party to the suit under Order XXII, Rule 10, or Order I, Rule 10 of the Code of Civil Procedure or section 5(3), of the Bombay Rent Act. Further, at that stage it was not open to the Union of India to say that it was not a necessary party to the suit. As a matter of fact in an application filed for fixation of standard rent, the Union of India itself had filed an application for joining it as a party. In the said application it was contended by the Union of India that in its absence the said application cannot be effectively adjudicated upon or decided. Not only this, the amount deposited in the said proceedings was withdrawn by the Union of India. Further, the plaintiffs did not know as to when Shri Saxena died since Shri Saxena died in Canada sometime in 1979 or 1980. On 28th of March, 1983, an application for substitution was filed by the plaintiffs to bring the deceased Meenakumari's legal representatives on record. In any case the order passed by the Court regarding joinder of parties could be sustained under Order 1, Rule 10, of the Code as well as Order XXII, Rule 4-A, of the Code, since Shri Saxena was merely an Executor of the will and his legal representatives could not have been brought on record after his death. Shri Soochak also contended that an appeal could have been filed by the Union of India against the impugned order to the Bench of the Small Cause Court and on that count also the present writ petition is not maintainable. It was then contended by Shri Soochak, that the Union of India has not approached this Court with clean hands and, therefore, this is not a fit case for showing any indulgence to it in the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. According to Shri Soochak taking advantage of the order passed by this Court granting interim stay, hasty steps were taken by the Union of India to confirm the sale and to place the auction purchaser, in possession of the suit property. The ad interim stay was obtained from this Court by the Union of India without even giving any notice to the plaintiffs, even though it was reasonably possible. This is not the end of the matter. When the plaintiffs had called upon the Union of India to produce relevant documents for one reason or other it did not produce them. The Union of India has practically misused the process of Court to achieve its object of anyhow delivering the possession of the suit premises to the auction-purchaser. According to Shri Soochak such a party is not entitled to approach this Court under Article 227 of the Constitution of India for exercise of the extra ordinary jurisdiction of this Court. In support of his contentions. Shri Soochak has placed reliance upon the decisions of the Supreme Court in : [1969]3SCR92 , Official Trustee, West Bengal and others v. Sachindra Nath Chatterjee and another : [1968]3SCR662 , Dhulabhai etc. v. State of Madhya Pradesh and another : AIR1974All422 ; Khalil Ahmed and others v. Additional District Judge, Gorakhpur and others, : AIR1975SC1470 ; Ramesh Himmatlal Shahji v. Harsukh Jadhavji Joshi, and : AIR1976SC2446 Miss Maneck Cusodji Surjarji v. Sarafazali Nawabali Mirza. It was also contended by Shri Soochak that even otherwise the order passed by the trial Court could be sustained in law.

7. It is not possible for me to accept the contention of Shri Soochak that the whole conduct of the Union of India is indicative of the fact that the Union of India has not approached this Court with clean hands or it had any alternative remedy. At the initial stage itself, objection to the jurisdiction of the Court to entertain the suit or the subject-matter was raised by the Union of India. It had also prayed for framing a preliminary issue in that behalf as per the provisions of section 9-A of the Act. The Union of India has also brought to the notice of the Court that the suit already stood abated in view of the death of the sole defendant who was executor appointed by the Court and unless the proceedings are instituted under section 258 of the Succession Act, the suit cannot proceed. The trial Court had chosen to pass an interim order against it without framing preliminary issues. It is also doubtful as to whether the Union of India had any alternative remedy available under the Rent Act to challenge such a composite order in view of the decision of this Court in : AIR1983Bom25 , Sukhdev Prasad Raghubir v. Rambhujarat Kshampati : AIR1983Bom25 . The Union of India had approached this Court and had sought interim order so that it can proceed with the matter in accordance with the provisions of the Income Tax Act. After following the procedure prescribed by the Income Tax Act and the rules framed thereunder, possession of the premises was taken. In these circumstances if cannot be said that the Union of India has not approached this Court with clean hands, and on that count, this writ petition is not maintainable.

8. For properly appreciating the controversy raised before me it will be worthwhile if a reference is made to section 9-A of the Code of Civil Procedure which reads as under :

'9-A. (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.

(2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction.'

From the bare reading of section 9-A, it is clear that the provisions are mandatory and imperative and the decision of the issue cannot be postponed or adjourned. It is not necessary to deal with this aspect of the matter any further in view of the authoritative pronouncements of this Court in M/s. A.K. Porbunderwalla's case, Radhakishin N. Advani's case, in Dr. (Smt.) Sadguna Chimanlal Shah's case, and in Madras Race Club's case. However, it was contended by Shri Soochak that section 9-A, will come into operation after the joinder of parties and unless an applicant is a party to the suit there is no obligation upon the Court to follow the procedure prescribed by section 9-A of the Code. On the other hand it is contended by the learned Advocate-General that the work `parties' as used in section 9-A, will take in its import, the proposed parties or a party who is sought to be impleaded as party to the suit. In my opinion it is not necessary to decide this contention in the present writ petition, since assuming that section 9-A will come into operation after the order regarding joinder of party is passed, still it will have to be seen as to whether after passing such an order the Court was within its jurisdiction to pass the impugned order, which is composite in nature.

9. It was contended by Shri Soochak that the term `jurisdiction' as used in section 9-A should be construed in a narrower sense. In my opinion the said term will have to be construed harmoniously and in tune with section 9 of the Code. By section 9 it is laid down that the courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Meaning to be given to the term `jurisdiction' in section 9-A will have to be in tune with the meaning assigned to it under section 9 itself. As to what could be termed as an issue relating to jurisdiction is by now well settled. In Official Trustee, West Bengal's case, the Supreme Court had an occasion to consider the question as to what is meant by jurisdiction After making a reference to Calcutta Full Bench decision, in para 15 this is what the Supreme Court has observed :

'From the above discussion it is clear that before a Court can be held to have jurisdiction to decide particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties .'

Therefore, the scope of section 9-A will have to be considered in the light of this decision of the Supreme Court. While replying to the application filed by the plaintiffs for joinder of party and amendment of the plaint, the Union of India had raised specific contentions. In para 2 of the reply it was contended that the suit stood abated in view of the death of the sole defendant. Then in para 3 of the reply a contention was raised that under section 28 of the Rent Act the Court has no jurisdiction to entertain the suit which would be a suit for declaration and injunction as against the Union of India and auction purchaser. Then a reference was made to Rules 9 and 11 of Second Schedule to the Income Tax Act and it was contended that the jurisdiction of the Court is barred either expressly or impliedly. It was also contended therein that the suit is also bad in law for absence of notice under section 80 of the Code of Civil Procedure. A contention was then raised that the alleged tenancy or licence is also void by virtue of Rule 16(2) of the Rules of Second Schedule. In my opinion the objection based on section 80 of the Code may not be termed as jurisdictional issue which will debar the Court from entertaining the suit itself, though in a given case the absence of notice might result in dismissal of a suit. However other contentions raised by the Union of India go to the very root of the matter. The learned Judge of the Small Cause Court without framing any specific issue in the matter has treated the application filed by the plaintiffs as a simple application for joinder to proper and/or necessary parties and consequential reliefs based thereon. The learned Judge has placed reliance upon Order 1, Rule 3 of Code of Civil Procedure for deciding the question of joinder of parties. The learned Judge has not finally decided the question of abatement of suit by saying that the said question need not be gone into at this interlocutory stage and respondent can agitate that point after they are impleaded as party-defendants in the suit and at trial of suit they can raise a plea about the untenability of the suit. While dealing with the question about the absence of notice under section 80, the learned Judge has again held that the said question can also be decided at a later stage. Ultimately by taking recourse to Order 1, Rule 3 of the Code he allowed the application of the plaintiffs for joinder of respondent Nos. 1 and 2 as party-defendants and then passed an order granting reliefs claimed by the plaintiffs. In my opinion such a course was wholly impermissible. In any case the contention raised by the Union of India that Small Cause Court has no jurisdiction to entertain the suit of the kind which is provided for under Rule 11(6) and in any event the said Court cannot go into the question of illegality alleged in the proposed amendment, was an objection to the jurisdiction of the Court. It is no doubt true that Shri Soochak has contended before me that such a suit is maintainable even under section 28 of the Rent Act and in support of this contention he has made various submissions. However, it is not open to me to decide this question finally at this stage, and in this writ jurisdiction, when the Court concerned has failed to follow the mandatory provisions of section 9-A of the Code of Civil Procedure. This is more so when the learned Advocate-General has contended that in view of the specific provisions of Income Tax-Rules a civil suit of this nature is either expressly or by necessary implication is barred. He also contended that the Small Cause Court while dealing with the suit under the Rent Act cannot deal with and decide all these questions. In substance it was contended by the Advocate-General that the Small Cause Court has no jurisdiction to try the suit of this nature. It was not disputed by Shri Soochak nor it could the disputed that the question as to whether the Small Cause Court has jurisdiction to entertain the suit of this type under section 28 of the Rent Act is question relating to the jurisdiction of the Court itself. In these circumstances and in view, of the mandatory provisions of section 9-A as interpreted by this Court in the aforesaid decision, it was obligatory on the part of the Small Cause Court to have formed a preliminary issue as to the jurisdiction of the Court and he could not have postponed the decision on the said issue to the hearing of the suit itself. According to Shri Soochak the order passed by the Small Cause Court regarding the joinder of parties could be sustained under Order 1, Rule 10 or Order XXII, Rule 10 or Order XXII, Rule 4-A or other relevant provisions of the Code. However, the learned Judge himself has taken recourse to Rule 3 of Order 1 of the Code only and has not made any reference to any other provisions of the Code. If the trial Court has not applied its mind to the various contentions sought to be raised by Shri Soochak, before this Court for the first time in this writ petition in support of the order passed by the trial Court, then it will not now be fair for me to sustain the order on that basis at this stage and that too in the writ jurisdiction of this Court. This is more so when it is contended by the Union of India that in a suit which stood wholly abated the Court had no jurisdiction to pass an order regarding joinder of parties. As to whether suit stood abated or not, and whether the Court has jurisdiction to pass an order for joinder of party, are questions which are inter-related. In view of the peculiar facts of this case, the said objections also involve the question of jurisdiction since it has a direct relationship with the objection raised by the Union of India, that a suit itself is either expressly or impliedly barred. In any case these are the contentions which will go to the very root of the matter. If it is established by the Union of India that it is not a necessary party to the suit nor it could be joined as a party to the suit, then the Union of India is entitled to be discharged. If it is established that the suit has already stated and under the law, the Union of India or the auction-purchaser cannot be joined as parties to the suit, then also the defendants are entitled to be discharged. If it is established that in the absence of notice under section 80 the suit against the Union of India is not maintainable, then also the Court need not enter into the merits of the controversy. The main objection raised by the Union of India involves a question of jurisdiction of the Court to entertain a suit of this nature. To such an objection the mandatory provisions of section 9-A of the Code of Civil Procedure will squarely apply. Admittedly the trial Court has failed to follow the said mandatory procedure. As observed by the Division Bench of this Court in Dr. Smt. Sadguna's case (L.P.A. No. 76 of 1979) the new procedure prescribed by section 9-A is imperative and nobody has a choice to conduct the proceeding in the suit contrary to the directions of the Legislature. Therefore, on this short ground alone the order passed by the trial Court is liable to be set aside.

10. In the result, therefore, the Rule is made absolute with costs. Order passed by the trial Court dated 1st June, 1983 is set aside. The matter is remitted back to the trial Court for deciding the objection raised by the Union of India in accordance with law, after following the procedure prescribed by section 9-A of the Code.

11. Since the concerned Judge has dealt with the matter on the merits of the controversy also, though indirectly, it will be better if after remand the matter is heard by a Judge other than the one who has passed the impugned order. The Chief Judge of the Small Cause Court is, therefore, directed to assign the present suit to a Judge other than the one who has passed the impugned order. The respondent No. 2 Shri Mistry is ordered not to part with the possession of suit premises, or to transfer the premises in any manner whatsoever, hereafter, during the pendency of the suit and without the leave of the Court concerned.

12. In the view which I have taken no orders are necessary on the Civil Application.


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