Andhra HC (Pre-Telangana)
Addanki Adilakshmamma And Ors. vs District Collector And Ors. on 21 February, 2007
Equivalent citations: 2007(3)ALD398, 2007(3)ALT245
JUDGMENT G. Bhavani Prasad, J.
1. Aggrieved by the dismissal of I.A. No. 552 of 2002 in O.S. No. 261 of 1999 filed under Order VI1 Rules 10 and ll(d) and Section 151 of the Code of Civil Procedure to reject the plaint, by an order dated 7-2-2005 of the Principal Junior Civil Judge, Addanki, the petitioners therein/Defendants 1 and 2 in the suit filed Civil Revision Petition No. 1405 of 2006, while the legal representatives of Defendants 3 and 4, and the 5th defendant in the suit filed Civil Revision Petition No. 1602 of 2005.
2. The facts leading to the revision petitions are that the plaintiff filed O.S. No. 261 of 1999 claiming that she and her husband encroached upon about Ac. 0-01 cent in T.S. No. 1038 of Addanki Gram Panchayat covered by the plaint schedule in 1982, put up a thatched shed and were living therein, selling beedies, cigarettes, cool drinks, etc., in the road margin. While in uninterrupted possession and enjoyment, Paladugu Narayana, the husband of the plaintiff, approached the Mandal Revenue Officer, Addanki for grant of patta and a D.K. patta was granted. In 1995 the plaintiffs husband applied to the Gram Panchayat for approval of a plan for construction of a permanent house and the plan was approved, after which the plaintiffs husband raised a zinc sheet shed with permanent walls with a bunk on its front abutting the main road. Defendants 3 to 5 claiming purchase of Ac.0-07 cents and encroachment of Ac.0-09 cents in S. No. 1038 including the plaint schedule site, attempted to get the plaintiff and her husband evicted, but they failed in their suits, appeals and writ petitions against the Government and the plaintiffs husband. In the writ petitions filed by the plaintiffs husband and Defendants 3 to 5, they were directed to approach the Mandal Revenue Officer, and the Mandal Revenue Officer reported to the Revenue Divisional Officer, Ongole to cancel the patta in favour of the plaintiffs husband, while finding the claim of Defendants 3 to 5 to be unsustainable and illegal. The Revenue Divisional Officer, Ongole after issue of show-cause notices, recommended to the Joint Collector to cancel the patta in favour of the plaintiffs husband and the Joint Collector accordingly cancelled the patta without issuing any show-cause notice as per his order dated 5-2-1996. The plaintiffs husband and Defendants 3 to 5 filed revision petitions before the Special Commissioner, Land Revenue in B.C.W. 3/226/96 and B.C.W. 3/335/96 which were dismissed on 9-12-1996. W.P. No. 27572 of 1996, W.P. No. 887 of 1996 and W.P. No. 2726 of 1997 filed by the plaintiffs husband and Defendants 3 to 5 respectively ended in a direction to the Joint Collector to hold a fresh enquiry. The Joint Collector, Ongole again disallowed the claims of both by his order dated 27-12-1998. The plaintiffs husband died in the meanwhile on 23-9-1998. The D.K.T. patta No. 86/93, dated 30-10-1993, the assessment and collection of house tax by the Gram Panchayat, the service connection and collection of electricity consumption charges by the Electricity Board, the collection of fees under the Shops and Establishments Act and Factories Act, etc., show the plaintiffs husband and the plaintiff to have perfected their right to continue in possession and hence, the suit for declaring the Joint Collector's order dated 27-12-1998 to be arbitrary, illegal and capricious and for a consequential permanent injunction restraining the defendants and their men from interfering with the plaintiffs possession and enjoyment. The plaintiff filed along with the plaint the earlier orders of the Joint Collector and the Special Commissioner, Land Revenue, the proceedings of the Joint Collector under challenge, the D.K. patta, the plan approved by the Gram Panchayat, the orders of the Executive Officer, Gram Panchayat, house tax receipts, land revenue receipts, electricity receipts and death certificate of her husband.
3. The defendants were stated to have tiled their written statement and the suit was staled to he coming for framing of issues. In the written statement by the Mandal Revenue Officer (2nd defendant), it was stated, among other things, that the plaintiffs husband raised a shed in the disputed site on 31-12-1995 and that the plaintiff filed the suit after filing the revision before the Commissioner, Appeals. The failure of Defendants 3 to 5 in various proceedings initiated against the Government was also stated in detail.
4. At that stage, the District Collector and the Mandal Revenue Officer, Defendants 1 and 2, filed LA. No. 552 of 2002 claiming that the Joint Collector and the Commissioner, Appeals decided twice that the D.K. patta relied on by the plaintiff is fabricated and ante-dated and as against the last decision of the Commissioner, Appeals in Roc. B.C.W. 3/177/99 dated 9-7-2001, the plaintiff filed W.P. No. 160 of 2002 and obtained interim orders in W.P.M.P. No. 174 of 2002. The plaintiff filed the suit before the writ petition and the subject-matter of the suit and the pending writ petition being one and the same, there are chances of different and conflicting judgments, due to which the suit is not maintainable. The Government is entitled to deal with the property as per the Land Encroachment Act, 1905 and Section 14 thereof bars the jurisdiction of civil Court. The suit is, hence, not maintainable and the plaint be rejected under Order VII Rules 10 and 11 and Section 151 of the Code of Civil Procedure.
5. The plaintiff resisted the petition claiming that as the cancellation of the patta was opposed to law and principles of natural justice and as the defendants are trying to forcibly evict the plaintiff without following the procedure under the Land Encroachment Act, the suit was filed for declaration and injunction, which is not barred by Section 14 of the Land Encroachment Act, 1905. The suit of a civil nature was filed prior to W.P. No. 160 of 2002 and the pendency of the writ petition cannot bar the suit. Hence, she desired the petition to be dismissed with costs.
6. Defendants 3 to 5 did not file any counter to the petition.
7. In the impugned order, the trial Court after extracting the pleadings and the contentions of both parties and referring to the precedents cited by them, noted that admittedly the Mandal Revenue Officer granted D.K. Patta to the plaintiffs husband and the plaintiff and her family are residing in the zinc sheet shed, running a small beedi bunk in the schedule property. The trial Court also noted that there is no alternative house or source of income for the family, which is paying taxes. Considering the plaintiff to have proved, prima facie, lawful possession of the suit property, the trial Court opined that there is no bar for filing a civil suit for an injunction when the personal rights are affected. The trial Court also noted that the petition was filed in 2002 in the 1999 suit after a lapse of three years when the suit is coming up for framing of issues after the written statements were filed. Observing that the entitlement of the plaintiff to a permanent injunction will be decided after full length trial and not at this stage, the trial Court held that the contentions of the petitioners cannot be taken into consideration and there are no grounds to reject the plaint at this stage. Consequently, it dismissed the petition without costs.
8. The petitioners/defendants 1 and 2 challenged the said order in Civil Revision Petition No. 1405 of 205 as being contrary to law, weight of evidence, probabilities and devoid of merits. The legal representatives of Defendants 3 and 4 and the 5th defendant challenged the impugned order in Civil Revision Petition No. 1602 of 2005 contending that the trial Court failed to exercise the jurisdiction on the ground of the suit being old without deciding the maintainability of the case. A suit against cancellation of patta is barred by the Code of Civil Procedure and W.P. No. 160 of 2002 was dismissed on 16-9-2002. The plaintiff cannot invoke two parallel proceedings before two different fora and an injunction suit is not maintainable under the Land Encroachment Act against lawful action in accordance with the principles of natural justice.
9. When the revision petitions came up for hearing before learned Single Judge, the learned Single Judge was of the considered opinion that it would be appropriate if the revision petitions are decided by a Division Bench in the light of the views expressed in A. Govindarajulu v. State of Andhra Pradesh , and that is how the matters are before us.
10. Sri P. Srinivas, learned Counsel for the petitioners in C.R.P. No. 1602 of 2005 and the learned Government Pleader for Arbitration strenuously contended that the plaintiff cannot take recourse to parallel proceedings simultaneously and that after cancellation of the patta became final with the dismissal of the writ petition, the civil Court cannot reopen the issue. The plaint suppressed the fact of the plaintiff filing a revision petition before the Commissioner, Appeals and the cause of action does not survive after the dismissal of the writ petition. The suit is hit by the principles of res judicata or cause of action estoppel or issue estoppel. After the order of the Joint Collector merged with the order of the Commissioner. Appeals in revision, the suit to set aside the order of the Joint Collector became infructuous. Even if Order VII Rules 10 and 11 of the Code of Civil Procedure do not in terms apply, the suit ought to have been dismissed as an abuse of process of law under Section 151 of the Code of Civil Procedure. As a petition under Order VII Rule 11 of the Code of Civil Procedure can be moved at any stage, the petition could not have been dismissed on the ground of the suit being old.
11. The learned Counsel for the plaintiff vehemently argued that the suit did not arise out of any action or contemplated action under the Land Encroachment Act, 1905 and as such the bar of jurisdiction under Section 14 thereof has no relevance. As the order of cancellation of the patta itself is under challenge, the order of the Commissioner, Appeals cannot operate as res judicata or estoppel, apart from any such contention being not pleaded or proved. The Andhra Pradesh Board Standing Orders under which the action was taken do not prohibit a suit, and any suppression of facts was not pleaded or proved. In the absence of production of any material in support of the pleas, the revisional jurisdiction with limited scope cannot be invoked. Even if all the contentions of the revision petitioners are accepted, the right of the plaintiff to be in possession until appropriate action is taken under Sections 6 and 7 of the Land Encroachment Act, 1905 cannot be in dispute and the suit, which is also for the relief of permanent injunction, can never be considered to be not maintainable. The plaintiff also pleaded perfection of their rights over the suit property even otherwise and the plaint cannot be rejected and the suit cannot be dismissed at this stage without full length trial.
12. The learned Counsel on both sides cited certain precedents, which will be referred to in due course.
13. Before going into the merits, it has to be noted that though I.A. No. 552 of 2002 was also styled to be under Order VII Rule 10 of the Code of Civil Procedure, it is conceded that the said provision has no application to the questions in controversy herein and the consideration should be confined to the applicability of Order VII Rule 11 and Section 151 of the Code of Civil Procedure.
14. The points that arise for consideration in these revisions are:
1. Whether the plaint is liable to be rejected or the suit is liable to be dismissed for the reasons relied on by the revision petitioners?
2. To what relief?
Point No. 1:
15. The action taken concerning the cancellation of the patta in favour of the plaintiffs husband was obviously and admittedly under the relevant Board Standing Orders and not under the Andhra Pradesh Land Encroachment Act, 1905. What Section 14 of the said Act bars is calling in question before a civil Court any decision made or order passed or proceeding taken by any officer or authority or the State Government under that Act. The jurisdiction of a Civil Court in respect of a decision, order or proceeding under that Act affecting the title to the land of a person was not barred even under that provision and a suit for declaring such a decision or order or proceeding affecting the title to the land of a person as illegal or void is obviously maintainable. The prohibition against grant of any injunction under the said provision was only in respect of any proceeding taken or about to be taken by any officer or authority or State Government in pursuance of any power conferred by or under that Act and not otherwise. When the subject-matter of the present suit has nothing to do with anything done or purported to be done or proposed to be done under the Andhra Pradesh Land Encroachment Act, 1905, the bar of jurisdiction of civil Courts under Section 14 thereof has no relevance to the maintainability of the suit.
16. Order 21 of Andhra Pradesh Board Standing Orders deals with assignment of house-sites in villages and towns and under Paragraph (14A) of Order 21, the provisions as regards appeals and revision contained in Paragraphs (15) to (20) of Order 15 will apply to the orders under Order 21. Under Paragraphs (15) to (18) of Order 15, the procedure for appeals and revision is prescribed. Andhra Pradesh Board Standing Orders do not anywhere state either expressly or by necessary implication about any bar of jurisdiction of civil Courts in respect of matters arising out of the Standing Orders 15 and 21. The officers, authorities and the Government exercising powers under Standing Orders 15 and 21 function as quasi judicial authorities having a duty to act judicially and the exercise of such quasi judicial power by such functionaries is always subject to the jurisdiction of a civil Court. As held in Secretary, Department of Finance (Revenue and Insurance), Government of India v. Murali Tobacco Co. , where a person is agitating his rights on civil dispute, the jurisdiction vested under Section 9 of the Code of Civil Procedure cannot be taken away. The learned Single Judge followed B. Poornaiah v. Union of India , wherein it was held that even where the jurisdiction is excluded, civil Courts have jurisdiction to examine whether the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure and that in cases where there is no express prohibition, the general presumptions apply with greater force and unless the provisions of a statute give a clear ringing indication of the exclusion of the jurisdiction of civil Courts, civil Court's jurisdiction is not barred.
17. Irrespective of whether the Board Standing Orders are statutory or administrative in nature, when the Board Standing Orders do not expressly or by necessary implication oust the jurisdiction of civil Courts, such absence of jurisdiction cannot be readily inferred in the light of the jurisdiction conferred in the civil Courts to try all suits of civil nature by Section 9 of the Civil Procedure Code, except the cognizance of which is either expressly or impliedly barred. It is well settled that any ouster of jurisdiction of civil Courts must be strictly construed and every presumption should be made in favour of the existence rather than exclusion of jurisdiction of civil Courts.
18. Specifically with reference to the power of the Board of Revenue to cancel a patta granted by the revenue authorities, the order of the Board of Revenue was held to be subject to interference by the civil Court in B. Mallikarjunudu v. P. Mallikarjunudu 1972 (1) ALT 52. Referring to Muthuveera v. The Secretary of State for India (1970) ILR 30 Mad. 270 and Secretary of State v. Venkataratnam AIR 1935 Mad 764, it was held on facts of that case that all that the civil Court was asked to decide, was that even assuming that there was a mistake of fact in the sense that the plaintiff was not in possession in 1949, that mistake is not one which is relevant to the grant of a patta and which would justify cancellation of the patta by the Board of Revenue, which is a matter within the province of the civil Court. It was made clear following Rajagopala Reddy v. Kumaraswamy Reddy (1964) 1 An. WR 379, that the civil Court has the right to find out whether that state of facts exist which would entitle the Tribunal to exercise its jurisdiction.
19. In A. Govindarajulu v. State of A.P. , it was held that as against cancellation of an assignment under Order 21 of Andhra Pradesh Board Standing Orders against which no appeal is provided and disposal of an appeal purportedly under Standing Order 15, the only remedy available to the aggrieved is to approach the competent civil Court to get redressal of his grievance. In the light of Andhra Pradsh Board Standing Orders not ousting jurisdiction of civil Courts either expressly or by necessary implication, we respectfully agree with the existence of jurisdiction of civil Courts in such matters within the well defined parameters. The present suit challenging the order of cancellation of the patta by the Joint Collector cannot, therefore, be considered to be, ex facie, outside the purview of civil Court.
20. The plaintiff admittedly preferred a revision before the Commissioner, Appeals against the selfsame order challenged in the suit as evidenced by the copy of order of the Commissioner, Appeals in Proceedings No.B.C.W. 3/177/99 dated 9-7-2001 produced by the revision petitioners during hearing and filed W.P. No. 160 of 2002 against the said revisional order, which was dismissed for default at the stage of admission by an order dated 16-9-2002. The plaintiff, thus, pursued parallel remedies available to her along side the suit simultaneously and the plea that the plaintiff should have elected one of the alternative courses of action, but could not have pursued both the alternative remedies provided by law simultaneously, cannot be lightly brushed aside, but neither party produced any material to show that the revision petition before the Commissioner, Appeals was anterior to point of time to the filing of the present suit. The effect of pursuing the revision petition and the writ petition during the pendency of the suit is, therefore, a mixed question of fact and law to be appreciated on admission into evidence in the suit the material relating to simultaneous pursuit of such parallel proceedings.
21. When there is no admission or proof at this stage about the revision petition being antecedent to the suit, any suppression of such material fact from the civil Court due to silence in the plaint cannot be inferred to presume the same to amount to an abuse of process of law. It will again be a question of fact whether not referring to such revision petition in the plaint even if it were earlier to the suit, is a case of unintended non-mention or wilful and deliberate suppression of fact.
22. That the dismissal of WP No. 160 of 2002 for default at the stage of admission cannot operate as res judicata, is clear from Sheodan Singh v. Daryao Kunwar , wherein the well settled principle was reiterated that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on merits and where the former suit was dismissed for default of the plaintiffs appearance and the like, the decision not being on the merits would not be res judicata in a subsequent suit. As held in V. Rajeshwari v. T.C. Saravanabava , even the rule of res judicata does not strike at the root of the jurisdiction of the Court trying the subsequent suit and it is a rule of estoppel by judgment based on the public policy. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried unless even without such pleadings or issue also the necessary facts were present to the mind of the parties and were gone into by the trial Court. The Apex Court also pointed out that not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and the judgment in the previous case and that apart, the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of res judicata may proceed on an assumption that his opponent has waived the plea by his failure to raise the same. Such factors which can form the basis of a successful plea of res judicata have to be, therefore, established during trial in the manner pointed out by the Apex Court. Otherwise, even assuming that the revisional order became final on the dismissal of the writ petition, as regards the parties to the suit, such finality appears to be only to the extent of the procedure provided by Andhra Pradesh Board Standing Orders, still leaving open the jurisdiction of civil Court to interfere, if the necessary grounds to interfere as per law are made out in the suit.
23. Even otherwise, as pointed out in Bhagwan Dayal v. Reoti Devi , where the title to properties put in issue before the civil Court was tried in the Revenue Court, but that Court is not competent to try the subsequent suit in which the same issue is raised, it follows that in terms of Section 11 of the Code of Civil Procedure, the decision on the said issue in the Revenue Court could not operate as res judicata for the necessary condition of competency of that Court to try the subsequent suit is lacking.
24. learned Counsel for the revision petitioners relied on Ishwar Dutt v. Land Acquisition Collector , wherein the Apex Court discussed in depth about res judicata, cause of action estoppel and issue estoppel apart from the applicability of the principle of res judicata to writ proceedings and in different stages of the same proceedings. But the applicability of the principles of res judicata or cause of action estoppel or issue estoppel to the present suit is not such as can be indisputably inferred on the material on record available at this stage and is a mixed question of fact and law as already stated.
25. learned Counsel for the revision petitioners also referred to Sopan Sukhdeo v. Assistant Charity Commissioner , wherein Order VII Rule 11 of the Code of Civil Procedure was stated to lay down an independent remedy made available to the defendant to challenge the maintainability of the suit itself at any stage, irrespective of his right to contest the same on merits and the rule casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. The Supreme Court pointed out that the relevant facts, which need to be looked into for deciding an application under Order VII Rule 11 of the Code of Civil Procedure, are the averments in the plaint and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. Of course, the plaint should set out a real cause of action but not something purely illusory and if a meaningful and formal reading of the plaint as a whole manifests the suit to be vexatious and meritless not disclosing a clear right to sue irrespective of clever drafting creating an illusion of a cause of action, the suit has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code of Civil Procedure. The Supreme Court pointed out that without adopting a pedantic approach to defeat justice on hair-splitting technicalities, the substance and not merely the form of the pleading as a whole has to be construed as it stands without addition or subtraction of words or change of its apparent, grammatical sense. It was also pointed out that all the reliefs claimed may not be allowed to a party on the pleadings and the evidence adduced and the jurisdiction under Order VII Rule 11 of the Code of Civil Procedure can be exercised, if prima facie the suit is a bogus and irresponsible litigation. In Pearlite Liners (P) Ltd. v. Manorama Sirsi , the Apex Court was seized of a case where none of the reliefs sought in the plaint can be granted to the plaintiff under the law and the question whether such a suit should be allowed to continue and go for trial, was answered in the negative. There can be no doubt that the application under Order VII Rule 11 of the Code of Civil Procedure can be made at any stage before the conclusion of the trial as held in Saleem Bhai v. State of Maharashtra , wherein it was also held that the averments in the plaint alone are germane for the purpose. But the trial Court did not dismiss the petition herein solely on the ground of delay though it made a passing reference to the petition being made 3 years after the suit. If the averments in the plaint and the contents of the documents referred to in and appended to the plaint alone have to be looked into as laid down by the Apex Court, the suit cannot be said to be without an apparent cause of action though ultimately such a cause of action may be found to be untrue and non-existent on merits after trial. As pointed out in State of Orissa v. Klockner and Co. , the pleas that there was no cause of action for the suit and that the plaint does not disclose cause of action are distinct and different and where the plaintiff pleaded a cause of action, the question is to be determined on the basis of materials (other than the plaint) which may be produced by the parties at appropriate stage in the suit. Examination of the plaint and the documents appended to the plaint in the present case does not present an illusion but project a reality of an existing cause of action, the sustainability of which, of course, has to be determined after trial on merits. The plaint and the documents referred to in the plaint cannot be considered not to disclose a cause of action or to make the suit appear to be barred by any law within the meaning of Clauses (a) and (d) of Rule 11 of Order VII. The plaint is not liable for rejection on that score.
26. learned Counsel for the revision petitioners then argued that the entire material and not the plaint alone should have been considered to conclude an abuse of process of the Court and the petition should have been ordered in the light of the principles laid down in Shipping Corporation of India Ltd. v. Machado Brothers . The Apex Court held therein that if by subsequent event the original proceeding has become infructuous, it will be the duty of the Court to take such action as is necessary in the interests of justice which includes disposing of infructuous litigation and for the said purpose it will be open to the parties concerned to make an application under Section 151 of Code of Civil Procedure to bring to the notice of the Court the facts and circumstance which have made the pending litigation infructuous. Incidentally, it may be noted that the Apex Court did not allow grounds not urged before the trial Court against the maintainability of the suit to be urged before them and in the present case also the main, if not the sole, ground for seeking rejection of the plaint relied in the affidavit of the Mandal Revenue Officer in support of the petition, was the bar under Section 14 of the Land Encroachment Act, 1905, which plea is patently unavailable, which position was rather not seriously disputed before this Court. The affidavit refers to W.P. No. 160 of 2002 as giving a chance for different and conflicting judgments and nothing more against the maintainability of the suit. That apart, while there can be no doubt that exercise of inherent power under Section 151 of the Code of Civil Procedure may be called for to discontinue an infructuous suit to prevent an abuse of the process of Court in the interests of justice, such an eventuality does not appear to have arisen in the present suit. It is true that the Joint Collector's order challenged in the suit was confirmed in revision by the Commissioner, Appeals, but to consider the Joint Collector's order to have merged with the order of the Commissioner, Appeals, disappearing from existence leaving no such order to be declared arbitrary, illegal and capricious in the suit, is to ignore the essential distinction between an appellate order and a revisional order. The refusal of the revisional authority to interfere with the orders of the Joint Collector, leaves the orders of the Joint Collector in tact and even otherwise the confirmation of the orders of the Joint Collector in revision, still leaves the orders of the Joint Collector susceptible to interference by the civil Court if such interference is called for on merits after trial. Assuming that the order under challenge in the suit ceased to exist to be liable for any declaration, the plaintiff also prayed for the relief of permanent injunction, of course, as consequential to such declaration and the plaintiff admittedly in possession as an encroacher may be capable of defending her possession except against eviction under due process of law, which in this case may be by taking recourse to Sections 6 and 7 of the Andhra Pradesh Land Encroachment Act, 1905. The plaintiff also claimed perfection of her right to be in possession, which claim needs to be adjudicated on merits in the suit. The cause of action for the relief of permanent injunction cannot be construed to have become nugatory by the parallel proceedings or the subsequent events and the suit cannot be considered to have become infructuous compelling the Court to invoke its inherent jurisdiction to discontinue the same to prevent any abuse of process of law. Hence, it has to be concluded that the plaint cannot be rejected and the suit cannot be dismissed at this stage on any of the grounds raised by the revision petitioners.
Point No. 2:
27. In the circumstances, the ultimate orders of the trial Court dismissing the petition for different reasons cannot be interfered with in exercise of the restricted revisional jurisdiction.
28. In the result, both the civil revision petitions are dismissed without costs.