Gujarat High Court
Velora Plywood vs Rava Bhikha Hunbal on 1 May, 2025
NEUTRAL CITATION
C/CRA/566/2024 ORDER DATED: 01/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 566 of 2024
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VELORA PLYWOOD & ORS.
Versus
RAVA BHIKHA HUNBAL & ORS.
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Appearance:
MR YN RAVANI(718) for the Applicant(s) No. 1,2,3,4,5,6
MR BHARAT VYAS AGP for the Opponent(s) No. 3,4
MR.D K.PUJ(3836) for the Opponent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/05/2025
ORAL ORDER
1. The present Civil Revision Application has been filed challenging the order passed below Exh.10 in Special Civil Suit No.3 of 2024 by the Principal Senior Civil Judge, Bhachau at Kachchh whereby the application filed under the provisions of Order VII Rule 11 of the Civil Procedure Code, 1908 ['the CPC', for short] was rejected vide order dated 25.10.2024.
2. The parties herein are referred to as their original status before the trial Court, for the sake of convenience.
3. The brief facts of the case those have arisen in filing this application is that the plaintiff filed Regular Civil Suit No.3 of 2024, with respect to right of way stating that defendant nos.1 to 6 being owner of Survey No.1407 and 1408 do not have any right of way from the land bearing Revenue Survey No.1401/1 and Revenue Survey No.1401/2 situated at Mouje Bhachau, Tal.Bhachau, Page 1 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025 NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined Dist.Kachchh-Bhuj ['the suit property', for short]. The plaintiff in the said suit also sought for relief that plaintiff be declared as owner and occupier of suit property bearing Revenue Survey No.1401/2 situated at Mouje Bhachau, Tal.Bhachau, Dist.Kachchh-Bhuj. The plaintiff also sought for relief to declare the revenue entry no.1378 to be null and void and for permanent injunction with respect to restraining the defendants from disturbing and causing disturbance to the plaintiff's peaceful possession of the suit property. In the said suit, the defendants filed application vide Exh.10 on the ground that suit is barred by law more particularly the fact that the Civil Court will not have jurisdiction in view of the Mamlatdar Court Act and, therefore, it has been argued that from the plain reading of plaint, suit is required to be rejected. The trial Court, after taking into consideration the plaint and the document annexed with the plaint rejected the said application filed by defendant nos.1 to 6 by order dated 25.10.2024. Hence, the present Civil Revision Application.
SUBMISSIONS OF PETITIONER - DEFENDANT :-
4.1 Learned advocate for the applicant - defendant has mainly argued that in view of the facts stated in the plaint and the relief that has been sought in the plaint, the suit is barred by law, more particularly Sections 4 and 11 of the Bombay Revenue Jurisdiction Act, 1876. Learned advocate for the defendant has also argued that by way of present suit, the plaintiff is trying to challenge the revenue entry which has been entered in the revenue record in the year 1971, by filing suit in the year 2024 and, therefore, the said suit is required to be rejected as being barred by law.
Page 2 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025 NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined 4.2 Learned advocate for the defendant has also argued that there
is no cause of action arising in the suit for the plaintiff to file the present suit and cause of action mentioned in the suit is illusionary cause of action. Moreover, at para:8 of the plaint, the plaintiff has mentioned that cause of action to file present suit has arisen, when the defendant has given an application dated 12.01.2024 before the Mamlatdar and, therefore, the present suit has been filed. It is submitted that present dispute is already pending for adjudication before the Mamlatdar Shri, whereby the plaintiff no.1 is a party in the said proceedings and under the provisions of Section 5 of the Mamlatdar Courts Act, the defendant of the said suit have initiated the proceedings wherein the dispute pertains to the right of way is pending for adjudication and in view of the said fact as the said proceedings are pending under Section 5 of the Mamlatdar Courts Act, the plaintiff could not have filed the present suit and, therefore, the suit is barred by law.
4.3 Learned advocate for the defendant has also argued that even otherwise the other relief that are claimed in the plaint are barred by law, the plaintiff has challenged the revenue entries more particularly relief (d) wherein the plaintiff has sought relief to declare the entry no.1378 to be declared as null and void and, therefore, it has been argued that plaint exercises powers under the provisions of Section 11 of the Bombay Revenue Jurisdiction Act, 1876, which reads as under:-
"11. Suits not to be entertained unless plaintiff has exhausted right of appeal.-
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No Civil Court shall entertain any suit against Government on account of any act or omission of any Revenue officer unless the plaintiff first proves-. that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present."
And therefore, it has been argued that the Civil Court cannot entertain any suit against Government on account of any act or omission of any Revenue officer unless the plaintiff first proves-. that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present, he cannot file suit against present Respondent Nos.7 to 9 and, therefore, the trial Court could not have rejected the plaint under Order VII Rule 11 of the CPC and the plaint from the plain reading of the plaint is required to be rejected as the same is barred by law. Learned advocate for the defendant has relied upon the following judgments:
(i) (1996) 6 SCC 433, Sankalchan Jaychandbhai Patel vs. Vithalbhai Jaychandbhai Patel;
(ii) (2017) 3 GLH 408, Jay Atul Shah vs. Arvindbhai Amrutbhai Patel and
(iii) Judgment of Division Bench of this Court dated 23.06.2021 rendered in Letters Patent Appeal No.1130 of 2018, Ilaba Devendrasinh Jadeja vs. State of Gujarat.Page 4 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025
NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined SUBMISSIONS OF RESPONDENT - PLAINTIFF :-
5.1 Per contra, learned advocate for the plaintiff Mr.D.K.Puj vehemently argued that the suit that has been filed by the plaintiff is with respect to right that the plaintiff has in the property that belongs to the plaintiff. By virtue of entry No.1378 the plaintiff has purchased the suit property by way of registered sale deed and the entry which was mutated in the revenue record in the year 1975 was a wrong entry and along with the plaint the plaintiff has produced documentary evidence more particularly the documentary evidence produced vide Exh.3/11, which is Village Form No.6, which clearly shows that the sale-deed has been executed with respect to the suit property, sale-
deed has also produced at Exh.3/18 executed on 04.01.2007 whereby suit property has been purchased by plaintiff from the Predecessor-in- title and since the year 2007 the plaintiff has become the owner of the property. The plaintiff has also relied upon document produced vide Exh.3/2 which shows that even in the year 2021 the name of the plaintiff is mentioned as owner of the suit property.
5.2 Moreover, learned advocate for the plaintiff has also submitted that even in the application filed under Section 5 of the Mamlatdar Court Act, the defendant has stated that there was some mistake in revenue entries and, therefore, application under Section 5 of the Act was filed. Learned advocate for the plaintiff has relied upon judgment reported in 2017 SCC Online Guj. 2492 [(2018) 59 (2) GLR 1473] Jay Atul Shah (supra), 2024 SCC Online Guj.3043 in the case of Shri Nijanand Jogani Abhiyan Trust vs. Parshottam Narsinhbhai Patel and others and Letters Patent Appeal No.1130 of 2018, Ilaba Page 5 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025 NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined Devendrasinh Jadeja (supra);
And contended that Civil Court does have jurisdiction and it cannot be taken away by the fact that an application under Section 5 of the Mamlatdar Courts Act is filed and is pending.
ANALYSIS :-
6.1 Having heard learned advocates for the respective parties and on perusal of the order passed by the trial Court, the issue before this Court appears to be whether from the plain reading of the plaint and document annexed with the plaint, can the plaint be rejected as being barred by law. The fact remains that though an application under Section 5 of the Mamlatdar Court Act is pending, said application has not been decided and / or concluded. Learned advocate for the defendant has relied upon the judgment reported in 2011 (4) GLR 3036 in the case of Samji Shivji v. Devji Valji wherein under the provisions of the Mamlatdar Court's Act the easmentary right had already been decided and thereafter subsequent suit reagitating the same issue was under consideration and this Court had decided that the decision made under Mamlatdar Court's Act operates as res judicata. Here, in the present case, the said dispute is not only with respect to the right of way but is also with respect to ownership of the property, injunction with respect to the suit property and also with respect to the fact that the plaintiff has claimed right as ownership of the property and also on the ground that revenue entry No.1378 be declared as null and void. Therefore, the said judgment will be of no assistance as the Mamlatdar Court has not finally decided the said issue of right of way and all the issues that are pending before the Page 6 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025 NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined trial Court in Special Civil Suit No.3 of 2024 are not for adjudication before the Mamlatdar Court.
6.2 Moreover, if the provisions of Section 26 of the Mamlatdar Court's Act, which reads as under, is read it creates a bar for entertaining the suit to be filed under the said Act, but the said provision does not take away the jurisdiction of the Civil Court to entertain and try and decide the suit in respect of matters covered by Clause-(b) of Section 26 referred above.
"26. Bar of certain suits. - No suit shall lie under this Act-
(a) [against Government or against any Government officer] in respect of any act done or purporting to be done by any such officer in his official capacity, except where acting as a manager or guardian duly constituted under any law for the time being in force; or
(b) in respect of [any removal of any impediment or of] any dispossession, recovery of possession or disturbance of possession, that has been the subject of previous proceedings, to which the plaintiff or his predecessor in interest was a party, under this Act, or in a Civil Court, or under Chapter XII of the Code of Criminal Procedure, 1898.
6.3 Moreover, the order of the Mamlatdar Court under Section 5 does not attain finality and as in absence of such finality attached to the order passed under the Act, the jurisdiction of the Civil Court cannot be held to be impliedly barred. Moreover, merely because a separate machinery for getting grievance redressed, jurisdiction of the Civil Court cannot be ousted and such jurisdiction remains intact and available to the Civil Court in view of the propositions laid down in Letters Patent Appeal No.1130 of 2018 [ Ilaba Devendrasinh Jadeja Page 7 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025 NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined (supra) ] wherein the Division Bench of this Court has clearly held in paras:13 to 17 as under:
"13. Before parting with this order, we may observe that in the course of the hearing of this appeal, our attention was also drawn to Section 26 of the Mamlatdar Courts Act, 1906. Although, Section 26 of the Act may not be relevant for the purpose of deciding the present appeal, yet having regard to the importance of the provision of the Act and for the guidance of the authorities under the Act, we would like to say something.
14. The provisions of Section 26 are reproduced below; "26. No suit shall lie under this Act,-
(a) against Government or against any Government Officer in respect of any act done or purporting to be done by any such officer in his official capacity, except where acting as a manager or guardian duly constituted under any law for the time being in force; or
(b) in respect of any removal of any impediment or of any dispossession, recovery of possession or disturbance of possession, that has been the subject of previous proceedings, to which the plaintiff or his predecessor in interest was a party, under this Act, or in a Civil Court or under Chapter XII of the Code of Criminal Procedure, 1989"
15. Section 26 opens with the sentence "No suit shall lie under this Act". It creates a bar for entertaining a suit to be filed under the said Act and it does not take away the jurisdiction of the Civil Court to entertain, try and decide the suit in respect of matters covered by clause (b) of Section 26 above. On the contrary, if it shown that a Civil Suit is filed in respect of matter covered by Section 26 (b) of the said Act, prior to initiation of proceedings under Section 5 of the Mamlatdars' Courts Act, then there is a bar to entertain the suit under the provisions of Mamlatdars' Courts Act. It also cannot be urged that Section 26 (b) would be attracted only in case where there is already a decision of a Civil Court, as the phraseology used therein is "that has been the subject of previous proceedings" in a Civil Court. However, this is also not acceptable for the reason that the legislature would have used the word "decided" or Page 8 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025 NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined "concluded" in respect of the proceedings or Civil Suit covered by Section 26 (b) of the said Act.
16. We may only observe that the bar of jurisdiction of Mamlatdar's Court under Section 26(b), operates only when it is pointed out that the civil suit was filed prior to the institution of proceedings under Section 5 of the said Act. In the present case, the Special Civil Suit No.186 of 2014 was filed after the institution of proceedings under Section 5 of the Act, 1906. Hence, it cannot be said that the Mamlatdar's Court proceeded without jurisdiction or that it could not have proceeded with the matter.
17. One other important aspect which needs to be kept in mind is that the Proviso below sub-section (1) of Section 5 empowers Mamlatdar's Courts to refuse to exercise the power under the said provision, if it appears to him that such a case can be more suitably dealt with by the Civil Court. Though there is a revision provided under Section 23 of the said Act, to challenge the order passed by the Mamlatdar under Section 5, but the Act of 1906 nowhere attaches finality, either to the order passed under Section 5 by Mamlatdar on merits or to the order passed in Revision under Section 23 of the said Act. In the absence of such finality being attached to the order passed under the Act, the jurisdiction of the Civil Court cannot be held to be impliedly barred, merely because the Act provides a separate machinery for getting the grievance redressed. The ouster of plenary jurisdiction of Civil Court should not be readily inferred and such jurisdiction remains in-tact and available to be exercised either against the order under Section 5 or against the order of revision under Section 23 of the said Act."
6.4 Moreover, as held in judgment reported in (2017) SCC Online Guj. 2492, para:6.1 to 6.4 read thus:
"6.1 Thus, the Mamlatdar is given powers under the Act to address and redress the grievances in relation to the land used for agriculture. The agriculturists or farmers who face impediments or obstructions with regard to use and cultivation of their agricultural land have a recourse under the provisions of the Act for immediate relief. The aggrieved Page 9 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025 NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined party is enabled to obtain a quick relief which is necessary having regard to the nature of rights to be claimed in the circumstances. Sub-section (2) empowers the Mamlatdar to pass injunctive orders. From a close reading of Section 5 above, it would be noticed that this forum is created essentially to redress the disputes which could be said to be of revenue nature. The rights which may be enforced under the Act could be classified as revenue-cum-agriculture related rights.
6.2 The Proviso below the abovementioned clauses to Section 5(1) may be noticed with significance. It says that "if in any case the Mamlatdar considers it inequitable or unduly harsh to remove or cause to be removed any such impediment or, to give possession of any such property or to restore any such use to a person who has become entitled thereto merely by reason of the determination of any such tenancy or other right, or if it appears to him that such case can be more suitably dealt with by a Civil Court, he may in his discretion refuse to exercise the power aforesaid, but shall record in writing his reasons for such refusal." The civil remedy before the civil court is thus kept available and under the aforesaid Proviso, the Mamlatdar has discretion to refuse to exercise the powers under the Act.
6.3 The orders passed by the authorities under the Mamlatdars' Courts Act are not final and either of the parties can seek relief from the civil court by instituting civil suit. The civil court is not bound by the orders and decisions of the authorities under the Mamlatdars' Courts Act and may upturn the same after trying the dispute between the parties. These aspects clearly show that the civil court is treated as a different and separate forum under the provisions of the Act themselves. From more than one provisions of the Act it can be specifically demonstrated that the forum of Mamlatdar's Court and the civil court are perceived to be distinct bodies. Giving a clear indication in this regard, for instance, Section 22 of the Act says that a party in whose favour Mamlatdar has passed an order of removal of impediment or for restoration of the possession or for having continued flow of surface water or has granted injunction, such person is able to enjoy the orders under the Page 10 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025 NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined Mamlatdar's Court only until such order or decision is otherwise decreed or such person is ousted from the enjoyment by the competent civil court.
6.4 Viewed from the standpoint of the nature of rights dealt with by the authorities under the Act, the rights which are subject matter of exercise of powers by the Mamlatdar are in the realm of possessory rights related to agricultural activity or of a revenue kind. These rights can be said to be a transitory in nature, in asmuch as they could crystalised in a civil remedy finally before the civil court. The Mamlatdar's Court pronounces on the rights which stand as inchoate in their kind. They may not be called or treated as the full fledged 'civil rights'"
Therefore also the orders passed under the Mamlatdar Courts Act are not final and either of the parties can seek relief from the Civil Court by instituting Civil Suit. The Civil Court is not bound by an order and / or decision of the authority under the Mamlatdar Courts Act and can upheld the said order after trying the dispute between the parties. Therefore, Civil Court is treated as different and separate forum under the provisions of the Act. Therefore, powers that had been given under the Mamlatdar Courts' Act, can only be crystalised in the civil remedy finally before the Civil Court and the said rights cannot be called or treated to be as civil right and, therefore, it cannot be stated that just because an application before the Mamlatdar Court is pending, the trial Court cannot entertain the present suit.
6.5 It is true and settled law that though Court is required to be extremely careful regarding frivolous and vexatious litigations creeping in the judicial system and consequently abusing the process of law. This requires Courts to exercise their power under Order VII Page 11 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025 NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined Rule 11 to nip such litigation in the bud.
6.6 However, equally important and well settled is the law that Order VII Rule 11 amounts to rejection of a case at the threshold. Therefore, it is a drastic power, which must exercised extremely cautiously. Hon'ble Supreme Court has laid down the following proposition of law in the case of P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331:
5. Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the Defendants in the written statement or in the application for rejection of the plaint is wholly immaterial.
It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial. (emphasis supplied).
6.7 It is therefore settled law that such a drastic step cannot be taken when upon a holistic reading of the Plaint, it does not appear to be barred by any law or discloses a cause of action (along with the other grounds of the said Rule). In such situations, the Plaint must go to trial and the Trial Court in accordance with law may allow or reject the same as deemed appropriate.
7. In view of the discussion of the present case in the foregoing paragraphs, this Court does not deem it fit to take recourse of the drastic powers conferred under Order VII Rule 11 for rejection of the Page 12 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025 NEUTRAL CITATION C/CRA/566/2024 ORDER DATED: 01/05/2025 undefined Plaint and accordingly, the present Civil Revision Application is dismissed. The connected Civil Application, if any, shall also stand dismissed.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 13 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Fri May 09 2025 Downloaded on : Sat May 10 11:53:14 IST 2025