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Sanjay Dinkar Kulkarni Vs. Shankerappa Ganappa Pasarkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 74 of 1971
Judge
Reported inAIR1971Bom302; 1971MhLJ478
ActsBombay Mamlatdars Courts Act, 1906 - Sections 4, 5(2), 23(1) and 23(2); Code of Civil Procedure (CPC), 1908 - Sections 115; Code of Criminal Procedure (CrPC) , 1898 - Sections 435
AppellantSanjay Dinkar Kulkarni
RespondentShankerappa Ganappa Pasarkar
Appellant AdvocateP.N. Deopujari, Adv.
Respondent AdvocateV.R. Manohar, Adv.
Excerpt:
mamlatdars' courts act (bom. ii of 1906), section 23(2) -- civil procedure code (act v of 1908), section 115 -- criminal procedure code (act v of 1898), section 435 -- whether under section 23(2) collector can call for and examine record of suit on application by party to suit.;under section 23(3) of the mamlatdar's courts act, 1906, the collector has jurisdiction to call for and examine the record of any suit when a revision application is made by a party to the suit before him. - - 4. the legislature has advisedly used in section 23 (2) of the mamlatdars' courts act, the words 'the collector may call for and examine the record of any suit,'and similar expressions are also used in section 115 of the civil procedure code as well as in section 435 of the criminal procedure code......under section 435 of the criminal procedure code, the courts with revisional jurisdiction may also examine the record of any matter when a party to that matter in a subordinate court invites the attention of the superior court. it may be that, in certain circumstances, the collector may suo motu call for and examine the record. in my view, therefore, the collector has jurisdiction to call for and examine the record of any suit under the mamlatdars' courts act under section 23 (2) when a revision application is made by a party to the suit before him.5. in the above view of the matter, therefore, the opinion of the learned s.d.o. when he observed that the revision cannot lie under section 23 (2) of the mamlatdars' courts act, because under section 23 (2) he can call for the record only.....
Judgment:
ORDER

1. This is a revision application by the defendant and the non-applicant is the plaintiff. The non-applicant has filed a suit under Section 5 (2) of the Mamlatdars' Courts Act claiming therein removal of obstruction alleged to have been put in Survey No. 220 of Mouza Janephal, Tahsil Mehakar, district Buldana, by the applicant. The non-applicant prayed for a temporary injunction against the applicant in that suit and the Court ordered the temporary injunction against the applicant prohibiting him from any attempt to obstruct the non-applicant from using a road. There was a map attached with the order, and the order was that there should not be any obstruction till the final decision of the suit. The complaint of the applicant is that the road was not demarcated in the map. It. however, appears that the applicant did not obey the order of the Court and started digging a pit in the way of the non-applicant. The non-applicant, therefore, again brought to the notice of the Court this breach of injunction on the part of the applicant. The Court after visiting the spot passed an order on 12-11-1970, observing that the applicant had disobeyed the injunction order and hence is liable for action under Section 4 of the Mamlatdars' Courts Act. A revision was then preferred by the applicant against this order under Section 23 (2) of the Mamlatdars' Courts Act before the S.D.O. The S.D.O. summarily dismissed the application stating that the revision did not lie under Section 23 (2) of the said Act. According to the learned S.D.O. Section 23 (2) provides only calling for and examining the record suo motu by the S.D.O. According to him, the applicant cannot file any application invoking that right in the S.D.O. under Section 23 (2) of the Mamlatdars' Courts Act. It is this order of the learned S.D.O. which is challenged here by the applicant. The only point, therefore, that arises here for consideration is to see whether this order is legal and proper.

2. Section 23 (1) and (2) of the Mamlatdars' Courts Act is as follows:--

'23. (1) There shall be no appeal from any order passed by a Mamlatdar under this Act.

(2) But the Collector may call for and examine the record of any suit under this Act, and if he considers that any proceeding, finding or order in such suit is illegal or improper, may, after due notice to the parties, pass such order thereon not inconsistent with this Act, as he thinks fit',

3. It is, therefore, clear from the language used in Section 23 that the appeal is barred. It, however, appears from the language used that the Collector is invested with a revisional jurisdiction. Section 23 (2) shows that the Collector may in his revisional jurisdiction call for and examine the record of any suit under the Mamlatdars' Courts Act and if he considers that any proceeding, finding or order is illegal or improper, then after due notice to the parties, he can pass a proper order, as he thinks fit. Therefore, the Collector in his revisional jurisdiction is given more or less powers as are given to the High Court under Section 115 of the Civil Procedure Code. Of Course this does not mean that the High Court is deprived of the powers of superintendence and revision which it exercises over the Mamlatdars' Courts. The Mamlatdars' Courts Act expressly constitutes the Collector taking proceedings under this Act as a court and, therefore, the Collector when exercising judicial functions under the said Act is subject to the superintendence and control of the High Court.

4. The Legislature has advisedly used in Section 23 (2) of the Mamlatdars' Courts Act, the words 'the Collector may call for and examine the record of any suit,' and similar expressions are also used in Section 115 of the Civil Procedure Code as well as in Section 435 of the Criminal Procedure Code. Now therefore, the intention of the Legislature while enacting Section 23 (2) of the Mamlatdars' Courts Act is not that the Collector suo motu should call for and examine the record of any suit, but also may call for on an application by a party to the suit. Under Section 115 of the Civil Procedure Code and under Section 435 of the Criminal Procedure Code, the courts with revisional jurisdiction may also examine the record of any matter when a party to that matter in a subordinate Court invites the attention of the superior court. It may be that, in certain circumstances, the Collector may suo motu call for and examine the record. In my view, therefore, the Collector has jurisdiction to call for and examine the record of any suit under the Mamlatdars' Courts Act under Section 23 (2) when a revision application is made by a party to the suit before him.

5. In the above view of the matter, therefore, the opinion of the learned S.D.O. when he observed that the revision cannot lie under Section 23 (2) of the Mamlatdars' Courts Act, because under Section 23 (2) he can call for the record only suo motu and on no other ground, is not legal and proper. That order is set aside. This revision application, therefore, is allowed. The learned advocate for the applicant also says that there is an application for stay. This application also would be considered when the S.D.O. considers the revision application on merits. Application allowed. Costs in the cause.

6. Revision allowed.


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