Bhemdas Dharmabhai Harijan(Sadhu) vs Satuben Kajabhai Harijan on 15 February, 2022
11. While challenging the said two orders, the petitioners have
raised various contentions namely (i) that the plaint presented
before the Mamlatdar was not in accordance with the provisions of
Section 5 of the Act of 1906; (ii) non framing of issues, which is
mandatory; (iii) panchnama in question was not prepared in
consonance with the principles of natural justice as the Circle Officer
had taken signatures of the panchas on blank papers. The
contentions are required to be dealt with, considering the scope and
nature of powers exercised by the Mamlatdar under the Act of 1906.
Apt would be the judgment in the case of Jay Atul Shah v.
Arvindbhai Amrutbhai Patel (supra). The issue before this Court was
whether the Mamlatdar's Court under the Act of 1906 and the
Collector exercising powers under sub-Section (2) of Section 23
could be said to be a Court and the court subordinate to the High
Court. This Court, held and observed that as the Collector, functions
under the provisions of the Act of 1906 or any other authorities,
cannot be construed as court within the meaning and for the
purposes of Section 115 of the Code of Civil Procedure they are not
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C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
the court subordinate to the High Court. The Division Bench has
examined all the provisions of the Act of 1906. It has been held and
observed that merely because the parties before the Mamlatdar
under the Mamlatdars' Courts Act, 1906 are described as 'plaintiff'
and 'defendant', forums under the Act do not become the court. It
would also be naive to reason that since application lodged before
the Mamlatdar is called plaint, the proceedings become judicial
proceedings. It has been further held that merely because the
Mamlatdar under the Act examines the witnesses and takes
evidence in that form or follows some of the procedures of the Civil
Procedure Code, 1908, it does not make him a court in its technical
sense of the term. Relevant paragraphs 5, 6, 6.1, 6.3, 6.4 and 6.8,
read thus: