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Deochand S/O Dullabhji and ors. Vs. Gangabai W/O Laxminarayan Goenka - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 109 of 1982
Judge
Reported in1985(2)BomCR613; 1986MhLJ639
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11
AppellantDeochand S/O Dullabhji and ors.
RespondentGangabai W/O Laxminarayan Goenka
Appellant AdvocateV.S. Sohoni, Adv.
Respondent AdvocateS.C. Mehadia, Adv.
Excerpt:
civil - maintainability - section 11 and 12 of maharashtra debt relief act, and section 151 and order 47 rule 1 of code of civil procedure, 1908 - application under sections 11 and 12 - applicant contended that issues should be referred to authorized officer - alleged that a similar application filed earlier rejected - application filed under sections 11 and 12 and not application for review under order 47 rule 1 - impugned order rejecting application owing to res-judicata not sustainable - held, order liable to be quashed and trial court directed to consider application on merits according to law. - .....m. jhaveri & another v. sukhdeo ramratan & another, : air1977bom42 . 3. upon rejection of the said earlier application for reference to the competent authority under the maharashtra debt relief act, the defendants preferred a revision before the high court; but the same was again rejected in view of the earlier decision of the bombay high court. 4. the defendants, in the fresh application exh. 64, have pointed out that the judgment of the high court : air1977bom42 , mentioned above, came to be overruled subsequently by a decision of the division bench in bhagwan motiram mali v. jayant shridhar khar and another, reported in 1981 m.l.j. 216. the division bench held that the decision and settlement of issues under the maharashtra debt relief act is outside the jurisdiction of the civil.....
Judgment:

S.W. Puranik, J.

1. The non-applicant, Smt. Gangabai, had filed the Civil Suit No. 519 of 1974 and, during the pendency of the said suit before the 7th Joint Civil Judge, (Junior Division), Akola, the present applicants-defendants, filed an application-Exh. 64 dated 11-1-1982, under sections 11 and 12 of the Maharashtra Debt Relief Act, read with section 151 of the Civil Procedure Code.

2. By the said application-Exh. 64, the defendants alleged that, on the basis of the pleadings in the written statement of the defendants, pleas have been raised regarding the provisions of the Maharashtra Debt Relief Act and that additional issues have been framed. The defendants prayed that under sections 11 and 12 of the said Act, issues framed in that regard should be referred to the authorised officer as the Civil Court would be without jurisdiction to try the said issues. It was also pointed out in the said application that a similar application filed earlier was rejected by the trial Court in view of the law laid down in the Bombay High Court's decision in Pramod M. Jhaveri & another v. Sukhdeo Ramratan & another, : AIR1977Bom42 .

3. Upon rejection of the said earlier application for reference to the competent authority under the Maharashtra Debt Relief Act, the defendants preferred a revision before the High Court; but the same was again rejected in view of the earlier decision of the Bombay High Court.

4. The defendants, in the fresh application Exh. 64, have pointed out that the judgment of the High Court : AIR1977Bom42 , mentioned above, came to be overruled subsequently by a decision of the Division Bench in Bhagwan Motiram Mali v. Jayant Shridhar Khar and another, reported in 1981 M.L.J. 216. The Division Bench held that the decision and settlement of issues under the Maharashtra Debt Relief Act is outside the jurisdiction of the Civil Court. It is in view of the subsequent interpretation regarding the jurisdiction that the defendants filed the fresh application.

5. On the date it was filed, the Counsel for the plaintiff opposed the said application on the ground that similar application was earlier field and rejected by the High Court. Hence the said decision operates as res judicata and the application thus being mala fide is liable to be rejected. On 11-1-1982 itself the trial Court passed the impugned order saying that the application is rejected as not tenable and mala fide so as to delay the proceedings. It is this order which is challenged by the defendants by this revision.

6. Shri V.S. Sohoni, Advocate, appeared for the applicants, while the non-applicant-plaintiff is represented by Shri S.C. Mehada, Advocate.

7. The plea in the revision was opposed by Shri Mehadia, for the non-applicant, on the ground that the fresh application for referring the issues relating to the Maharashtra Debt Relief Act to the competent authority amounts to a review of the earlier order and the said review would not be permissible, inasmuch as the earlier order was correctly passed in view of the law then prevailing. He relied on the decision of the Division Bench of this Court in Rajkumar Ramavtar Chourasia v. Matheew Charian Christian, reported in 1984 M.L.J. 898.

8. Contention of the opponent does not appeal to me, inasmuch as the defendants application before the trial Court was one under sections 11 and 12 of the Maharashtra Debt Relief Act and not an application for review under Order 47, Rule 1 of the Civil Procedure Code. Moreover, the decision cited in the case of Rajkumar Ramavtar Chourasia v. Mathew Charian Christian would not be applicable to the facts of the present case, inasmuch as in the said decision the procedural validity of a notice of ejectment was considered, and a view taken by a Single Judge earlier was overruled by the Division Bench. Thus, that decision merely refers to the procedural part of interpretation and, it is in that view, that the Division Bench has held that if the law then prevailing has been taken into account by the trial Court, it could not be said that there is error apparent on the facts of record and, accordingly, they held that review was not permissible.

9. On the other hand, in the present proceedings it is not procedure which is being attacked. It is the very jurisdiction of the Civil Court in trying the issues under the Maharashtra Debt Relief Act, which is being challenged in the present case. It has been held by this High Court in many decision that a question of jurisdiction held erroneously earlier continues to be subsisting and can be corrected even subsequently. The question of jurisdiction goes to the very root of the case and an earlier decision between the same parties and on the same cause cannot operate as res judicata.

10. In the matter of Bhau Martand Shelar v. Hajabai Bala Nadaf and another, : AIR1975Bom233 , relying on the Supreme Court's decision Mathura Prasad Sarjoo v. Dossibai N.D. Jeejeebhoy, : [1970]3SCR830 , Shah, J., has observed that :

'A decision on an issue of law will operate as res judicata in a subsequent proceeding between the same parties if the cause of the subsequent proceedings is the same as in the previous proceedings. It will not, however, operate as res judicata when the cause of action is different nor when the law has since the earlier decision been altered by a competent authority. However, these broad principal relating to the application of the bar of res judicata even on a point of law cannot apply when the decision relates to the jurisdiction of the Court to try earlier proceedings.'

In paragraph-10, it is further observed as under :

'10.....Where the Agricultural Lands Tribunal or any other authority empowered to deal with matters under the provisions of the statute passes an order refusing to act or exercise jurisdiction over the subject-matter on a misconception of the interpretation of the statutory provisions or otherwise, such an order passed by it refusing to exercise powers cannot operate as res judicata and fresh proceedings in respect of the same subject-matter is maintainable. There is no question of res judicata when the question of jurisdiction is involved, and the authority is competent to start fresh proceedings on the assumption that it had jurisdiction to proceed with the matter and pass the appropriate orders.'

So also in another reported decision in the case of Pandurang Sakharam v. The Maharashtra Revenue Tribunal, Nagpur and others, : AIR1974Bom20 , Masodkar, J., has observed as follows :

'... ... ... ... ... ...

Whenever the law is changed or an error in its interpretation has been declared by Court in the same or subsequent proceedings the prior erroneous decision unrelated to facts of the case but dependent only on interpretation of law cannot constitute res judicata at subsequent stage even in the same proceedings.

An interpretation of section 38(7) of the Bombay Tenancy and Agricultural Lands Act, 1958, which was made in the earlier High Court decision : AIR1966Bom194 was merely alluded to and the case was remanded by the High Court. When the matter came up before it again by way of writ petition, the said decision was already overruled by Full Bench decision in : AIR1970Bom232 (FB).

Held, the earlier remand orders could not be treated as res judicata for the purposes of the present writ petition because the order of remand was unrelated to facts of the case and was only made because of the erroneous view of tenability of application by virtue of section 38(7) as expressed in the overruled decision. Therefore, since the tenant was covered under section 38(7) application to evict him was not maintainable as declared by the Full Bench case referred to above. . ... ... ... ... ... ...'

11. In view of the principles laid down above and since the earlier application regarding the jurisdiction and reference to the competent authority under the Maharashtra Debt Relief Act was erroneously rejected in view of the earlier decision, and that view having been changed during the pendency of the suit, the trial Court can certainly consider afresh the application which affects the very jurisdiction of that Court.

12. The impugned order rejecting the application Ex. 64 as not tenable owing to operation of res judicata is, therefore, not sustainable and will have to be quashed and set aside.

13. In the result, therefore, the impugned order rejecting the application of the defendant Ex. 64 dated 11-1-1982 is quashed and set aside and, instead, the trial Court is directed to consider the said application and pass appropriate orders on merits according to law. Records and papers be remitted back to the trial Court. No order as to costs.


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