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Chothu Ram Vs. Budhu Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1024 of 1965
Judge
Reported inAIR1976P& H354
ActsAdministration of Evacuee Property Act, 1950 - Sections 46; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantChothu Ram
RespondentBudhu Ram and anr.
Appellant Advocate Roop Chand, Adv.
Respondent Advocate C.P. Sapra, Adv.
DispositionAppeal dismissed
Excerpt:
.....is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - ' this being the law, i fail to see how the question of allotment can be gone into by the civil court when it is conceded that an allotment is a matter which the custodian is empowered by the act to determine. ' a bare reading of the rule clearly makes out that the question of the return of the plaint will arise only if there is a court which has jurisdiction to try the suit......is empowered by or under this act to determine.' this being the law, i fail to see how the question of allotment can be gone into by the civil court when it is conceded that an allotment is a matter which the custodian is empowered by the act to determine. repelling the contention, therefore, i uphold the finding arrived at by the two courts below on the question of jurisdiction. 3. the only other point raised by mr. chaudhary is that if no civil court had jurisdiction to try the suit, it could not have been dismissed and that the only course open to the courts below was to return the plaint to the plaintiff for presentation to the proper court. this contention is also without force. in support of it mr. chaudhry has sought support from the provisions of rule 10 of order 7 of the.....
Judgment:

A.D. Koshal, J.

1. The suit out of which this second appeal by the plaintiff has arisen was instituted with a prayer for possession of certain land which had been allotted to the plaintiff's brother Budh Ram defendant No. 1 by the Custodian of Evacuee Property. The basis of the claim was that the plaintiff was the sole owner of the land situated in Pakistan in lieu of which the allotment had been made. Both the Courts below held that no Civil Court had jurisdiction to try the suit as it impinged on the exclusive jurisdiction of the authorities created by the Administration of Evacuee Property Act.

2. The first contention raised by Mr. Chaudhry is that the Civil Court had the jurisdiction to decide the question of title to the land situated in Pakistan as mentioned above even though the prayer in the suit could not be granted without striking down the allotment made in favour of defendant No. 1 which, Mr. Chaudhry concedes, lies within the exclusive province of the Custodian of Evacuee property. The contention is wholly without substance. Unless the allotment is set aside, no relief can be granted to the plaintiff and the matter of allotment cannot be agitated in a Civil Court in view of the provisions of Section 46 of the said Act, whatever the basis on which the allotment is attacked. That section reads:

'Save as otherwise expressly provided in this Act, no civil or revenue Court shall have jurisdiction-

(a) to entertain or adjudicate Upon any question whether any property or any right to or interest in any property is or is not evacuee property; or

(b) ...... ...... ...... ...... ...... ......

(c) to question the legality of any action taken by the Custodian-General or the Custodian under this Act; or

(d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine.'

This being the law, I fail to see how the question of allotment can be gone into by the Civil Court when it is conceded that an allotment is a matter which the Custodian is empowered by the Act to determine. Repelling the contention, therefore, I uphold the finding arrived at by the two Courts below on the question of jurisdiction.

3. The only other point raised by Mr. Chaudhary is that if no Civil Court had jurisdiction to try the suit, it could not have been dismissed and that the only course open to the Courts below was to return the plaint to the plaintiff for presentation to the proper Court. This contention is also without force. In support of it Mr. Chaudhry has sought support from the provisions of Rule 10 of Order 7 of the Code of Civil Procedure which runs thus:

'Rule 10 (1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

(2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it and a brief statement of the reasons for returning it.'

A bare reading of the rule clearly makes out that the question of the return of the plaint will arise only if there is a Court which has jurisdiction to try the suit. If no Court whatsoever has jurisdiction to determine the matters in controversy, there would be no Court in which the suit should have been instituted and to which, therefore, the plaint could be presented. And that is the state of affairs prevailing here. As already held, the Custodian has exclusive jurisdiction in the matter and no Court is competent to try the suit.

4. For the reasons stated, the appeal fails and is dismissed but with no order as to costs.


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