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HuseIn Miya Dosumiya Vs. Chandubhai Jethabhai and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 1585 and 1586 of 1952
Judge
Reported inAIR1954Bom239; (1953)55BOMLR946; ILR1954Bom364
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 29(1), 70, 71, 74, 85, 85(1), 85(2), 86(1) and 86(2); Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantHuseIn Miya Dosumiya
RespondentChandubhai Jethabhai and anr.
Appellant AdvocatePurshottam Tricumdas, ;B.K. Amin and ;A.H. Thakar, Advs.
Respondent AdvocateD.V. Patel, Adv.
Excerpt:
.....the civil courts should be most reluctant to interfere with the working of that machinery, and in our opinion the civil court should not pass an order of injunction unless a strong 'prima facie' case has been made out by the plaintiff that the order made by the revenue authorities is an 'ultra vires' order. it would be perfectly open to the petitioner to apply to the district court with regard to the question of injunction and it will be for the district court to consider whether on the facts of the case the injunction should be continued or it should be dissolved......suit in which an order made by the mamlatdar under the bombay tenancy act has been challenged as 'ultra vires', and the brief facts which lead up to this revision application may be stated.2. an application was made by the landlords, who are the opponents, for possession against their tenant who is the petitioner, under section29 of the tenancy act to the mamlatdar, and a consent order was taken on august 24, 1948, by which the petitioner agreed to hand over possession to the opponents. it is the case of the petitioner that thereafter there was a fresh tenancy agreement between him and the opponents and that was in july 1949, and by reason of this fresh tenancy agreement the petitioner continued to remain on the land and the landlords never took possession of it.it is further the case.....
Judgment:

Chagla, C.J.

1. The question that arises in this revision application is with regard to the Jurisdiction of the Civil Court to maintain a suit in which an order made by the Mamlatdar under the Bombay Tenancy Act has been challenged as 'ultra vires', and the brief facts which lead up to this revision application may be stated.

2. An application was made by the landlords, who are the opponents, for possession against their tenant who is the petitioner, under Section29 of the Tenancy Act to the Mamlatdar, and a consent order was taken on August 24, 1948, by which the petitioner agreed to hand over possession to the opponents. It is the case of the petitioner that thereafter there was a fresh tenancy agreement between him and the opponents and that was in July 1949, and by reason of this fresh tenancy agreement the petitioner continued to remain on the land and the landlords never took possession of it.

It is further the case of the petitioner that in July 1950 he exchanged with the consent of the landlords 3 acres and 11 gunthas of the land demised to him with the same area which had been demised to another tenant. On February 15, 1952, the landlords applied to execute the order of August 24, 1948. On March 13, 1952, the petitioner filed an application before the Mamlatdar setting out the facts to which attention has already been drawn that he was a tenant under a new tenancy agreement and he should not be dispossessed.

On March 17, 1952, the Mamlatdar ordered the petitioner to hand over possession to the landlords in execution of the order of August 24, 1948. On March 20, 1952, in execution of the order of August 24, 1948, the landlords took possession from the petitioner. On March 22, 1952, the petitioner applied to the Mamlatdar under Section 29(1) for possession alleging that he was a tenant of the opponents, and on August 9, 1952, the Mamlatdar made an order in favour of the petitioner and he directed that possession should be given on August 16, 1952.

On August 15, 1952, the opponents filed this suit in the Civil Court contending that the order passed by the Mamlatdar on August 9, 1952, was invalid and 'ultra vires' and asking for an injunction against the petitioner preventing him from taking possession of the land from them. A preliminary issue was raised in this suit as to whether the Civil Court had jurisdiction to maintain the suit. The learned Civil Judge has decided this issue in favour of the opponents, and the petitioner has come in revision.

3. Now Mr. Purshottam's contention is that inasmuch as the petitioner's application was under Section 29(1) and inasmuch as the order of the Mamlatdar was under Section 70 by which he held that the petitioner was a tenant, the order passed by the Mamlatdar is clearly an order for the purposes of the Act and it cannot be challenged in a civil Court under Section 85 which ousts the jurisdiction of the civil Court to settle, decide or deal with, any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar or the other authorities set up under the Act. It is further pointed out that under Sub-secction (2) of Section 85 no order of the Mamlatdar or of the other authorities shall be questioned in any civil or criminal Court.

It is clear that the jurisdiction of the civil Court has been only ousted in respect of valid orders made by the Mamlatdar. It is only when the Mamlatdar makes an order with Jurisdiction, or, in other words, makes an order for the purposes of the Act or an order required by the Act, that that order cannot be questioned in a civil Court. If the Mamlatdar while passing a valid order deals with any of the matters Under Section 70, then those matters cannot be dealt with by the civil Court. But if the order made by the Mamlatdar is not for the purposes of the Act or not required by the Act and the order is incompetent or 'ultra vires', then the order is a nullity and it can be challenged in a civil Court.

Mr. Purshottam does not dispute that proposition, indeed he cannot do so, but his contention is that looking to the plaint in this suit filed by the opponents it is clear that on the face of the plaint the order of the Mamlatdar is with jurisdiction and the mere submission made by the plaintiffs that that order is 'ultra vires' cannot affect the jurisdiction of the Court. We have carefully looked at the plaint, Mr. Purshottam has read out the original to us, and really what the case of the plaintiffs comes to is this that the Mamlatdar having directed that the plaintiffs were entitled to possession under the order of August 24, 1948, it was not competent to the Mamlatdar, even under an application made by the tenant under Section 29(1), to dispossess trie landlords and to give possession of the land to the tenant. It is on this ground that the order of the Mamlatdar is challenged as invalid and 'ultra vires'.

4. Now, in considering the jurisdiction of the Court, one does not consider the merits of the matter. A suit may be entirely frivolous and vexatious, there may be no merits about it, the contention taken up by the plaintiff may be unstate-able, yet if the relief that the plaintiff seeks is a relief which the Court can grant, then the suit is filed in a Court with jurisdiction and the Court can maintain it. In this particular case the issue which directly arises and which issue has been raised by the learned Judge is whether the order of the Mamlatdar is an 'ultra vires' order. It may be that the plaintiffs will fail on that issue and the suit will be dismissed, but so long as that issue arises, the civil Court has jurisdiction to deal with that issue. In deciding that issue the civil Court is in no way contravening the provisions of Sections 85(1) or (2), because in deciding whether the order of the Mamlatdar is 'ultra vires' it is not purporting or attempting to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar, nor is it allowing the valid order of the Mamlatdar to be questioned before it.

5. The other matter that has got to be considered is, what is the effect of Section74 of the Act which provides for an appeal against the order of the Mamlatdar. It was open to the opponents to prefer an appeal against the decision of the Mamlatdar because Section 74 in terms provides for an appeal to the Collector against an order made by the Mamlatdar under Section 29. Instead of preferring an appeal the opponents have filed this suit in a Civil Court. Now, does the fact that a statute provides for a right of appeal against an order made by an authority set up under that statute make any difference to the position when the order made by the authority is an invalid or 'ultra vires' order? It is clear that if the order itself is 'ultra vires', it is a nullity and there is no obligation upon a party against whom the order is made to prefer an appeal against that order. The appeals that are provided for under Section74 are strictly appeals against valid orders made by the Mamlatdar and orders made with jurisdiction. It may be that the Collector could have corrected the Mamlatdar and could have held that the order of the Mamlatdar was 'ultra vires'. But the question is not whether the opponents could have appealed to the Collector and could have got the necessary relief.

The question is whether the opponents are bound to appeal and are prevented or precluded from going to a civil Court. In bur opinion, on principle it is erroneous to argue that merely because, a statute provides for a right of appeal, the party against whom the order is made is bound to appeal although the order made is a nullity. If the order is a nullity, the party is entitled to ignore it, to treat it as waste paper, and to go to a civil Court for a declaration that the order is a nullity and no action should be taken against the party under that order which would prejudice his rights. See for this purpose the decision of a Full Bench of this Court in -- 'Abdullanmyan Abdulrehman v. Govt. of Bombay' : AIR1942Bom257 (A). Therefore, in our opinion, the learned Judge below was right in coming to the conclusion that he did, that the Court had jurisdiction to try this suit.

6. But in our opinion Mr. Purshottam is right when he complains that in matters like this injunctions should not be lightly granted. The| Tenancy Act has set up a definite machinery which provides for possession being given to the tenant in cases where he has been dispossessed by the landlord and where he alleges that he is a tenant and entitled to possession. The civil Courts should be most reluctant to interfere with the working of that machinery, and in our opinion the civil Court should not pass an order of injunction unless a strong 'prima facie' case has been made out by the plaintiff that the order made by the revenue authorities is an 'ultra vires' order. It would lead to an impossible situation if a landlord were to rush to the civil Court and on the mere allegation that the order of the Mamlatdar is 'ultra vires' get an injunction from the civil Court.

Every litigant has a right to put a suit on the file of a Court, he can have the luxury of having it ultimately dismissed, but every litigant has not the right, having put a suit on file, to get an injunction from the Court, In this 'case the suit has yet to be decided by the trial Court, and, therefore, we refrain from expressing any views on the merits. But if the contention put forward by Mr. Purshottam is correct, viz., that the petitioner filed an application under Section 29(1) which he was entitled to do, that the Mamlatdar has held him to be a tenant which the Mamlatdar was entitled to do, and that it is from this order that the opponents have gone to the civil Court, then it seems to us that the Court must immediately consider whether there is any basis whatsoever for the suit filed by the opponents.

We would, therefore, direct that the papers in this matter should go back immediately to the lower Court and that the learned Civil Judge without any delay will dispose of this suit on merits.

Mr. Purshottam is apprehensive that there maybe an appeal to the District Court, in which case his client would be still out of the land in respect of which the Mamlatdar has held that he is a tenant. It would be perfectly open to the petitioner to apply to the District Court with regard to the question of injunction and It will be for the District Court to consider whether on the facts of the case the injunction should be continued or it should be dissolved. It would be open to the petitioner also to apply to the learned Civil Judge on proper materials to consider whether the injunction granted by him should not be dissolved.

Costs of the revision application costs in thecause.

The same point arises in Civil Revision Application No. 1586, and we make the same order in that application.

7. Order accordingly.


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