Gujarat High Court
Jay Atul Shah & 2 vs Arvindbhai Amrutbhai Patel & ... on 7 April, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/CRA/386/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 386 of 2015
==========================================================
JAY ATUL SHAH & 2....Applicant(s) Versus ARVINDBHAI AMRUTBHAI PATEL & 11....Opponent(s) ========================================================== Appearance:
MR. SUNIT SHAH, ADVOCATE WITH MR MAUNISH T PATHAK, ADVOCATE for the Applicant(s) No. 1 - 3 MR. P.C. KAVINA, SENIOR ADVOCATE WITH MR. BK. RAJ, ADVOCATE for the Opponent(s) No. 1 - 10 MR. UTKARSH SHARMA, AGP for the Opponent(s) No. 11 NOTICE SERVED BY DS for the Opponent(s) No. 12 ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI Date : 07/04/2017 CAV ORDER
1. The applicants have filed the present Civil Revision Application under Section 115 of CPC challenging the order dated 12.08.2015 passed by the Deputy Collector in Revision Application No. 6 of 2015 filed under Section 23(2) of the Mamlatdars' Courts Act, 1906 (hereinafter referred to as 'the said Act'), and the order dated 29.04.2015 passed by the Mamlatdar, Kheda in Case No. 2 of 2014 filed under Section 5 of the said Act.
2. On the preliminary issue having been raised as to the maintainability of the Revision Application under Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat Apr 08 00:35:47 IST 2017 C/CRA/386/2015 CAV ORDER Section 115 of CPC, the Court had heard the learned advocates for the parties on the said issue without entering into the merits of the case. Both the learned advocates for the parties had fairly stated that there being diverse opinions of the Courts on this issue, they would assist the Court in deciding this issue, rather than being adversaries.
3. Mr. Sunit Shah, learned counsel for the petitioner placing reliance on various decisions of this Court and other Courts submitted that Courts specified in Section 3 of the CPC are not exhaustive and the High Court has power of superintendence over all subordinate Courts within its jurisdiction. The scope of Section 115 of CPC therefore should not be restricted to the Courts mentioned in Section 3 of CPC only. He has also relied upon the order passed by this Court in the case of Narendrabhai Raijibhai Patel versus State of Gujarat and Others in Special Civil Application No. 13028 of 2009 passed on 05/08/2010, and submitted that the Coordinate Bench relying upon the decisions of Bombay High Court, has categorically held that the Civil Revision Application under Section 115 of CPC would be maintainable against the order passed by the Collector under the Mamlatdars' Courts Act. He has also relied upon the decision of Bombay High Court and of Karnataka High Court to submit that the Mamlatdar's Court being Civil Court, High Court would have powers of superintendence over the said Courts, and therefore, the orders passed under the said Act could be challenged before the High Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Apr 08 00:35:47 IST 2017 C/CRA/386/2015 CAV ORDER Court in the Revision Application filed under Section 115 of CPC. However, the learned Senior Advocate Mr. P.C. Kavina for the respondents submitted that the Court of Mamlatdar being not the Civil Court subordinate to the High Court, the orders passed by the Mamlatdar or the Collector under the said Act, could not be challenged by way of Revision Application under Section 115 of CPC. According to him, there being a provision of Revision under Section 23 of the Mamlatdars' Courts Act, it is inconceivable to have second Revision under Section 115 of CPC against the order passed by the Collector under Section 23 of the Mamlatdars' Courts Act.
4. In order to appreciate the contentions raised by the learned advocates for the parties, it would be beneficial to reproduce the relevant provisions of CPC. Section 115 of CPC deals with the powers of High Court to call for the record of any case decided by any Court subordinate to such High Court and in which no appeal lies thereto. The relevant part of Section 115 reads as under : -
"115. Revision. (1) the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears -
(a) to have exercised a jurisdiction so vested, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat Apr 08 00:35:47 IST 2017 C/CRA/386/2015 CAV ORDER material irregularity, the High Court may make such order in the case as it thinks fit"
5. For the purpose of the Code, which are the Courts subordinate to the High Court are mentioned in Section 3, which reads as under : -
"3. Subordination of Courts. - For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court."
6. From the conjoint reading of the aforestated provisions of CPC, it transpires that the High Court can call for the record of any case, which has been decided by any Court subordinate to such High Court, and that for the purposes of the Code, District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.
7. The question that arises for consideration before the Court is, whether the Mamlatdar's Court could be said to be a Civil Court of a grade inferior to that of a District Court for the purposes of Civil Procedure Code, so as to confer powers upon the High Court under Section 115 of CPC to call for the record of the case decided by the Mamlatdar's Court under the Mamlatdars' Courts Act ? It is pertinent to note that Page 4 of 9 HC-NIC Page 4 of 9 Created On Sat Apr 08 00:35:47 IST 2017 C/CRA/386/2015 CAV ORDER the Civil Court has not been defined either under the Code or under the General Clauses Act. As per Section 3 of the Gujarat Civil Courts Act, in addition to the Courts established under any other law for the time being in force, the classes of Civil Courts in the State are (a) Court of a District Judge (b) Court of a Senior Civil Judge and (c) Court of a Civil Judge.
8. So far as the Mamlatdars' Courts Act is concerned, as per the long title of the Act, the said Act was enacted to consolidate and amend the law relating to the powers and procedure of Mamlatdars' Courts. Section 5 of the said Act deals with the powers of Mamlatdars' Court, in which it has been stated inter alia that every Mamlatdar shall preside over the Court, which shall be called the Mamlatdar's Court, and that such Court shall have the powers within the territorial limits as may be fixed by the State Government, to decide the disputes as mentioned therein. At this juncture, it would be also relevant to deal with other provisions of the Mamlatdars' Courts Act to ascertain whether the Mamlatdar's Court could be said to be a Civil Court. As per the proviso to Section 5, the Mamlatdar in his discretion may refuse to exercise the powers mentioned therein, if the Mamlatdar considers inequitable or unduly harsh to exercise such powers or if it appears to him that such a case could be more suitably dealt with by a Civil Court. As per Section 22, the party in favour of whom, the Mamlatdar issues an order to continue to enjoy the possession of the land or use of water etc. Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Apr 08 00:35:47 IST 2017 C/CRA/386/2015 CAV ORDER is valid, until otherwise decreed or ordered or until ousted by the competent Civil Court. The first proviso to Section 22 inter alia states that nothing in the said Section shall prevent the party against whom the Mamlatdar's decision is passed, from recovering by a suit in competent Civil Court mesne profits for the time he has been kept out of the possession of any property or out of enjoyment of any use. The second proviso to the said Section states inter alia that in any subsequent suit or other proceedings in any Civil Court between the same parties, or other persons claiming under them, the Mamlatdar's decision shall not be held to be conclusive. Section 23 of the said Act bars any appeal from the order passed by the Mamlatdar under the said Act, however grants powers to the Collector to call for and examine the record of any suit under the Act and pass appropriate orders not inconsistent with the Act.
9. From the aforestated provisions of Mamlatdars' Courts Act, it clearly transpires that the legislature has drawn a clear distinction between the Mamlatdar's Court and the Civil Court, inasmuch as specific references of Civil Court have been made in many provisions as distinct from the Mamlatdar's Court. The Court, therefore, is of the opinion that the Court presided over by Mamlatdar to decide the disputes under the Mamlatdars' Courts Act, may be called Mamlatdar's Court but could not be called a Civil Court much less a Civil Court subordinate to the High Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat Apr 08 00:35:47 IST 2017 C/CRA/386/2015 CAV ORDER Court as contemplated under Section 3 for the purposes of exercising powers under Section 115 of CPC.
10. When Section 115 of CPC confers powers upon the High Court to call for record of any case, which has been decided by any Court subordinate to such High Court, and when Section 3 specifically states that for the purposes of CPC, the District Court is subordinate to High Court and every Civil Court of a grade inferior to that of a District Court is subordinate to the High Court and District Court, the Mamlatdar's Court under the Mamlatdars' Courts Act, could neither be said to be a Civil Court nor the Court subordinate to the High Court. The order passed by the Mamlatdar exercising powers under Section 5 and the order passed by the Collector or his subordinate Assistant Collector or the Deputy Collector under Section 23 (2) of the said Mamlatdars' Courts Act, therefore could not be revised by the High Court under Section 115 of CPC. It cannot be gainsaid that the High Court has powers of superintendence over such Courts, and the orders passed by such Courts would be amenable to the judicial review of the High Court under Article 226 and 227 of the Constitution of India, nonetheless in the opinion of the Court, the Revision Application under Section 115 of CPC could not be said to be maintainable against the order passed by the Collector or his subordinate officer exercising revisional powers under Section 23 (2) of the Mamlatdars' Courts Act. In that view of the matter, this revision application therefore deserves to be dismissed on the Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Apr 08 00:35:47 IST 2017 C/CRA/386/2015 CAV ORDER ground of being not maintainable under Section 115 of CPC.
11. However, at this juncture, it may be stated that the Coordinate Bench in the case of Narendrabhai Raijibhai Patel versus State of Gujarat and Others in Special Civil Application No. 13028 of 2009, has passed the order on 05.08.2010 holding that the Civil Revision Application under Section 115 of CPC and not the Special Civil Application would be maintainable against the order passed by the Deputy Collector under the provisions of Mamlatdars' Courts Act. For the sake of convenience, the said order is reproduced as under : -
"It is not in dispute that the present petition is against the orders passed by the Mamlatdar and Dy.Collector under the provisions of Mamlatdar Courts Act. In view of the decisions of the Bombay High Court in the case of Babaji Kondaji Mali Vs. Bala Fakira Mahar, reported in 1938 BLR (Vol.40) Page 104; in the case of Dalpat Zopdoo Patil Vs. Mahadu Uka, reported in 1912 BLR (Vol.14) Page 259; and in the case of Purshottam Janardhan Chaphakar Vs. Mahadu Pandu Turmalkar, reported in 1912 BLR (Vol14) Page 947, against the impugned orders Civil Revision Application under sec.115 of the Code of Civil Procedure is maintainable. Hence, present petition is not entertained. It will be open for the petitioner to file Civil Revision Application against the impugned orders, which can be considered in accordance with law and on merits. It will always be open for the petitioner to file an application for condonation of delay and to contend that the petitioner Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Apr 08 00:35:47 IST 2017 C/CRA/386/2015 CAV ORDER was prosecuting the present Special Civil Application before this Court and therefore there is delay in filing the same and the same may be considered considering Sec.14 of the Limitation Act. With this observation and liberty in favour of the petitioner to file revision application, the present Special Civil Application is dismissed. Notice is discharged. No costs."
12. In view of the above, the issue as to whether the Civil Revision Application would be maintainable or not under Section 115 of CPC against the order passed by the Collector or his subordinate Assistant or Deputy Collector under Section 23(2) of the Mamlatdars' Courts Act, is required to be referred to the Division Bench. The Registry is therefore directed to place the matter before the Hon'ble Chief Justice in view of the observations made by the Supreme Court in para 7 of the decision in the case of State of Madhya Pradesh and Others Versus Mala Banerjee reported in (2015) 7 SCC 698.
(BELA M. TRIVEDI, J.) Amar Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Apr 08 00:35:47 IST 2017