D.P. Mohapatra, J.
1. The short question involved in this revision petition is whether the suit abates under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, (for short referred to as the Act).
2. The opposite party No. 1 filed a suit with an application for permission to sue as an indigent person (Misc. case No. 219 of 1981) in the court of the Subordinate Judge, Balasore. The reliefs sought in the plaint were to declare documents Nos. 4112 to 4118 dated 9-11-1979 executed by her in favour of defendants 1 to 9as illegal, inoperative, backed by no consideration and void; for confirmation of plaintiffs possession or in the alternative for recovery of possession. The petitioners in this revision petition are defendants 1, 2 and 3 in the suit. On being noticed by the Court, the petitioners filed their objection to the application under Order 33, Rule 1, Civil Procedure Code filed by the plaintiff-opposite party. They filed another application on 17-11-1982 stating, inter alia, that all the properties involved in the case lie within the area notified under Section 3 of the Consolidation Act, the consolidation proceeding is continuing in the said area and hence the suit in the civil court is not maintainable. The said application was considered by the trial court and by the order dated 4-12-1982 the court rejected the application holding that the suit does not abate and he had jurisdiction to try and decide the same. This revision petition has been filed challenging the said order.
S. 4(4) of the Act read as follows :--
'every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act; which is pending before any Civil Court, whether on the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceedings is pending, stand abated; provided that no such order shall be passed without giving the parties concerned an opportunity being heard :
(Provided further that on the issue of a notification under Sub-section (1) of Section 5 in respect of the said area or part thereof-- (a) every order passed by the Court under Clause (4) in relation to the lands situate in such area or part thereof as the case may be shall stand vacated; and (b) all such suits and proceedings as are referred to in Clause (3) or Clause (4) which relate to lands situate in such area or part thereof, as the case may be shall be proceeded with and disposed of in accordance with the law as if they had never abated) : Provided also that such abatement shall be without prejudice to the right of the person affected to agitate the right of interest which formed the subject matter of the said suit or proceedings, before the proper consolidationauthority in accordance with the provisions of this Act or the rules made thereunder.'
This provision has been the subject matter of interpretation in several decisions of this Court. It has now to be accepted as a settled proposition of law that taking into consideration the nature of the case pleaded by the plaintiff in the plaint and the reliefs sought therein if it can be said that it comes within the purview of enquiry by the authorities under the Act, then the suit has to be held to abate under the provision quoted above. On the other hand, if on reading the averments of the plaint and the reliefs sought therein, it is clear that the subject matter of enquiry in the suit is not within the purview of the authority under the Act, then the suit cannot be held to abate and must proceed. This is based on well recognised principle that the common law forum i.e. the Civil Court should not be ordinarily held to be deprived of its jurisdiction to entertain disputes of civil nature unless it is manifest that permitting the suit to proceed in such forum would give rise to two parallel enquiries being conducted before two forums simultaneously, a situation which is intended to be avoided under the provisions under Section 4(4) of the Act.
3. Hence, the question to be determined in this case is whether on construing the plaint can it be said that the consolidation authorities have jurisdiction to undertake the enquiry and grant relief sought for in the plaint. The main relief sought for in the plaint, as already noticed, is to declare the deeds of gift and the sale deeds executed by the opposite party No, 1 in favour of the petitioners and other defendants null and void. The gist of the case made out in the plaint is that the plaintiff, an old, ailing and illiterate lady was given the impression that she was executing some documents authorising defendant No, 1 to manage her properties, but subsequently she came to know that the said defendant No. 1 had got several sale deeds and gift deeds executed by her in that process.
4. The trial court has accepted the submission that suit for setting aside a deed relating to land vitiated by fraud is not a mere suit for declaration of right and it would not abate. He has accordingly, rejected the application filed by the petitioner. This view is supported by a decision of the SupremeCourt in the case of Gorakh Nath Dube v. Hari Narain Singh, reported in AIR 1973 SC 2451, wherein it has been held that the consolidation authorities will have jurisdiction if the document sought to be set aside is ab initio void but have no power to set aside a document for which authority is vested only in the Civil Court. This is based on the analysis that a void document needs no adjudication and hence it is open to the consolidation authorities to ignore such a document and declare right, title and interest of the party. But if the document is voidable, i.e. it is up to the party in question either to accept the document or to get it annulled, then it is only the Civil Court which can do it and the authorities under the Act cannot ignore such a document.
Examining the averments in the plaint in the light of the principle enunciated above, it is clear that the plaintiff has filed the suit for a declaration that the documents are invalid and inoperative and do not affect her interest in the suit properties. Sri B. Pal, learned counsel for the, petitioners has sought to draw a distinction between .misrepresentation regarding nature of document and misrepresentation regarding contents of a document. It is his submission that while in the former case the document is void, in the latter it is voidable. He has placed reliance on the decision of the Supreme Court reported in AIR 1968 SC 956 in paragraph whereof it is observed : --
'The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.'
According to Sri Pal since the plaintiff (D. P. No. 1) has come with a case that she was given the impression that she was executing some documents authorising her son, defendant No. 1 to deal with the properties, the case is one of fraudulent misrepresentation relating to the character of the documents. On reading of the averments of the plaint, it is not possibleto say with certainty at this stage that fraudulent misrepresentation alleged by the plaintiff is confined only to the character of the documents sought to be impugned and not to their contents. On a perusal of the plaint it appears that there are averments also to the effect that plaintiff being an illiterate lady was not explained the contents of the documents. Hence it is difficult at this state to say with certainty that in the present case the documents in question do not need to be set aside.
5. In view of the aforesaid discussions, the revision is devoid of merit and the same is accordingly dismissed. In the circumstances of the case, both the parties are directed to bear their respective costs of this proceeding.