jpc 1 wp9526-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.9526 OF 2010 Thamhane Automobiles and others .. Petitioners Versus Jehangir Hospital and Medical Centre and others .. Respondents Mr. Atul G. Damle for the petitioner Mr. Firoz Andhyarujina i/by G. H. Shukla & Co. for respondent no.3 Mr. A. B. Tajane for respondent no.4 CORAM: R. M. SAVANT, J. DATED : 21st November, 2011 P.C. : 1. The above petition takes exception to the order dated 1st October, 2011 passed by the learned Joint Civil Judge, Senior Division/Small Causes Court Pune by which order the preliminary issue framed under Section 9A of the Code of Civil Procedure as regards jurisdiction has been decided and it has been held that the said Court has jurisdiction to try Regular Civil Suit No.185 of 2001. 2. It would be relevant to note the averments made in the suit in the light of the settled position that the jurisdiction of a Court is jpc 2 wp9526-10.sxw determined on the basis of averments as contained in the plaint, see AIR 1966 Bombay 177 Dattatray Vs. Jairam . A perusal of the plaint shows that in Paragraph 9 the plaintiffs have adverted to the notices issued by the cantonment authority on 12th July, 1982 and in the month of April, 1995. In paragraph 13 the plaintiffs have averred that in addition to the illegal construction made by the defendant Nos. 1 and 2 as per the notice of the Cantonment they have also made many more illegal constructions in the entire stretch of North-West portion of the building towards the extreme west of the property. In Paragraph 14, the plaintiffs have averred that the defendants have not only violated the Cantonment rules, but have also infringed upon the rights of the plaintiffs by causing encroachment on the portion of the land not let out to them. 3. It would opposite to reproduce the reliefs sought in the said suit. The same are contained in paragraph 25 (a) to (e). Prayer clauses (a) to (c) are reproduced hereunder: (a) The Hon'ble Court may be pleased to direct defendant no. 3 i.e. Cantonment Authority to demolish all the unauthorized structures constructed by defendant Nos. 1 and 2 at 6 Moledina Road, Pune-1. (b) Prohibit defendants 1 and 2 from making any construction jpc 3 wp9526-10.sxw either of temporary or permanent nature at 6, Moledina Road, Pune. (c) Direct the defendant Nos. 1 and 2 to stop the construction of ramp and the shed over the ramp on the west of the cottage occupied by the plaintiffs. 4. The decision as regards the jurisdiction of the Court to try the said suit has some what a chequered history, in as much as in the earlier round of litigation relating to the said issue, the matter came to be remanded back by the Appellate Court to trial Court to facilitate the parties to lead evidence in respect of the said issue. The parties accordingly, after the remand, led evidence. One of the defendants was examined in support of the case of the defendants that the Civil Court does not have jurisdiction to try the Suit. 5. The issue was thereafter decided by the learned Judge hearing the said preliminary issue and by the impugned order, the learned Judge has held that the said court has jurisdiction to try the said suit. The learned judge has, inter alia, taken into consideration the deed of assignment on the basis of which the defendants have come into possession from one Bombay Cycle and Motor Agency. Upon jpc 4 wp9526-10.sxw consideration of the said documents, the trial Court has held that the reliefs sought in the suit was in respect of the part of the property i.e. 6, Moledina Road, Pune which was not rented out to the defendants. The trial Court, therefore, held that considering the averments made in the plaint, the said Court would have jurisdiction. 6. It is sought to be contended on behalf of the petitioner by the learned counsel that the case of the defendants in the written statement that the predecessor of the plaintiffs had let out a larger portion for which they were paying higher rent has not been taken into consideration and therefore, the order is vitiated on said ground. Per contra it is submitted by the learned senior counsel Mr Andhyarujina that it is on the basis of the well settled principle that the jurisdiction of the Court is decided on the basis of averments in the plaint that the Court has decided the preliminary issue. The learned senior counsel would also contend that document on which much store was laid by the defendant in support of the fact as to how they have come in possession itself shows that the portion in report of which the reliefs sought in the plaint was not let out to them. In my view the reasons mentioned by the trial court in deciding the preliminary issue against the petitioners and ruling that the said court has jurisdiction, in the teeth of the averments made in the plaint as also on the basis of evidence which is jpc 5 wp9526-10.sxw on record, are unexceptional and do not merit any interdiction of this court in its writ jurisdiction under Article 227 of the Constitution of India. 7. Though the learned senior counsel sought to challenge the maintainability of the petition on the basis of verification clause, wherein the verification is only restricted to defendant no.1 - Thamhane Automobiles, in my view the said defect is technical and would not impinges upon the maintainability of the petition. 8. The finding recorded by the trial Court to the extent that the petitioner is a trespasser can only be said to be prima facie. The suit would further be decided on merits and in accordance with law. The above petition is accordingly dismissed. (R. M. SAVANT, J.)