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Banambar Tripathy Vs. Collector of Ganjam and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 710 of 1980
Judge
Reported inAIR1986Ori80
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 4(4) and 51(2); Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantBanambar Tripathy
RespondentCollector of Ganjam and anr.
Appellant AdvocateS. Misra (I), ;G.P. Mohapatra, ;J.M. Mohanty, ;B.B. Panda, ;Rakhi Saha and ;S.K. Nayak, Advs.
Respondent AdvocateGovt. Adv.
DispositionRevision allowed
Excerpt:
.....unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first..........act is competent to decide. in my humble opinion, when an officer or authority is not competent to grant a relief not having been empowered under the act to do so, a suit in the civil court is entertainable and where the reliefs claimed can only be granted by the civil court but not by an officer or authority under the act, the suit does not abate. this follows from a plain reading of the provisions.7. a suit lies to set aside a document or adecree. would not such a suit in some cases involve questions relating to right, title and interest? how is it that such a suit does not abate? the answer is simple : because the officer or authority has not been empowered under the act to grant the relief by deciding the question. what happens to the relief for injunction or damages sought when a.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This revision is directed against an order of the trial Judge directing abatement of the suit under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.

2. The petitioner instituted a suit for a declaration that the encroachment proceeding started by the Tahsildar, Aska was illegal and for recovery of Rs. 100/- as damages for the tortious acts of the second defendant.

3. The trial Judge being of the view that the suit involved adjudication of question of title directed abatement of the suit.

4. The question is : Would a suit of the nature and seeking the reliefs, as aforesaid, stand abated?

.5. It is elementary that aggrieved party under our jurisprudence is not without a remedy. The Civil Court has jurisdiction to entertain and try a lis unless its jurisdiction is ousted expressly or by necessary implication-Can one say on reading the provisions contained in Section 4(4) and Section 51 of the Act that jurisdiction of the civil Court to entertain and try a suit wherein the reliefs for damages and for declaration that certain encroachment proceeding is illegal, has been ousted or a proceeding under the Act seeking identical reliefs could be or ought to be started? a proceeding under the Act could be or ought to be started if the authority under the Act is competent and has jurisdiction to grant the reliefs. The provisions contained in Sections 4(4) and 51 have, therefore, to be given a purposive interpretation in harmony with the general principle that under our jurisprudence a party is not left without a remedy.

6. Sub-section (2) of Section 51 says that no Civil Court shall entertain any suit or proceeding in respect of any matter which an officer or authority empowered under the Act is competent to decide. In my humble opinion, when an officer or authority is not competent to grant a relief not having been empowered under the Act to do so, a suit in the Civil Court is entertainable and where the reliefs claimed can only be granted by the civil court but not by an officer or authority under the Act, the suit does not abate. This follows from a plain reading of the provisions.

7. A suit lies to set aside a document or adecree. Would not such a suit in some cases involve questions relating to right, title and interest? How is it that such a suit does not abate? The answer is simple : Because the officer or authority has not been empowered under the Act to grant the relief by deciding the question. What happens to the relief for injunction or damages sought when a suit is directed to abate? Which forum should the suitor take shelter in?

8. Law abhors a vacuum. It is not permissible to treat a suit of one nature as a suit of another nature unless there are compelling reasons to do so, such as, where there is no cause of action for the reliefs sought or the relief sought is mischievous and mala fide in character. Absent these and other well-known elements, a party cannot be nonsuited when under the law he does not have an alternative forum for the redressal of his grievances. If his rights are of civil nature, the reliefs which flow from such rights and which he is entitled to get should be available from the Civil Court where the officer or authority has not been empowered to grant the same.

9. It may be possible to direct a party to get his rights adjudicated by the competent officer and seek the further relief on the basis of the adjudication, from the Civil Court. This would be possible if the suit is kept pending and not by abatement of the suit. If the plaintiff has a cause of action for a decree for damages against the wrong-doer defendant, the suit cannot be directed to abate because the relief of damages is dependent upon adjudication of his title. Instances can be multiplied. In certain circumstances a fresh suit for the further relief may be barred by limitation.

10. In the instant case, the plaintiff seeks nullification of an encroachment proceeding started by the Tahsildar against him and for recovery of damages for the tortious acts of the second defendant. It is the civil Court alone which can grant the two reliefs. An officer or authority under the Consolidation Act has not been empowered to grant the reliefs sought. I am of the opinion that the trial Judge erred in law in exercise of his jurisdiction by directing abatement of the suit. I vacate the order and allow the revision. In the circumstances of the case, there would be no order as to costs.


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