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Gulabchand Makanji Vs. Motapondha Vibhag Tenants' Co-operative, Agricultural Society Ltd. (10.01.1962 - GUJHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 285 of 1960
Judge
Reported inAIR1962Guj296; (1962)0GLR991
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantGulabchand Makanji
RespondentMotapondha Vibhag Tenants' Co-operative, Agricultural Society Ltd.
Appellant Advocate A.D. Desai, Adv.
Respondent Advocate B.R. Shah, Adv. for; N.R. Oza, Adv.
Disposition Application dismissed
Cases ReferredState v. Natabar Mangraj
Excerpt:
- orderv.b. raju, j. 1. this civil revision application arises out of an order passed in civil suit no. 11 of 1957 holding that the civil court had no jurisdiction to entertain the suit, which was for the recovery of rs. 2733/- being the rent of 1956-57 in respect of survey no. 216. the suit was filed by the landlord against the tenant and in the alternative in the plaint it was stated that the plaintiff was claiming the amount also by way of compensation. the learned judge held that under section 70 (me) of the bombay tenancy and agricultural lands act, it was only for the mamlatdar to direct the payment of rent determined under the act or the arrears thereof and it was also for the mamlatdar to determine what rent was payable, the view that in view of clause (me) of section 70 of the.....
Judgment:
ORDER

V.B. Raju, J.

1. This civil revision application arises out of an order passed in Civil Suit no. 11 of 1957 holding that the Civil Court had no jurisdiction to entertain the suit, which was for the recovery of Rs. 2733/- being the rent of 1956-57 in respect of Survey No. 216. The Suit was filed by the landlord against the tenant and in the alternative in the plaint it was stated that the plaintiff was claiming the amount also by way of compensation. The learned judge held that under section 70 (me) of the Bombay Tenancy and Agricultural Lands Act, it was only for the Mamlatdar to direct the payment of rent determined under the Act or the arrears thereof and it was also for the Mamlatdar to determine what rent was payable, The view that in view of clause (me) of section 70 of the Bombay Tenancy and Agricultural Lands Act, the Civil Court had no jurisdiction to determine the rent payable or to direct the payment of rent payable is quite correct. But it is contended by the learned counsel for the petitioner that in the alternative in the plaint it was stated that the plaintiff was claiming the amount by way of compensation, and, this, it is contended, is liable by the Civil Court and that the Civil Court should try and decide the alternative case of compensation. It is next contended that where a part of the suit is not triable by the Civil Court and only the other part was triable; a copy of the plaint should be retained in the Civil Court and the plaint returned for pre-sentation to the proper court in regard to that part of the plaint which was not triable by the Civil Court. For this view reliance was placed on Secy, of State v. Natabar Mangraj, ILR 6 Pat 358 : (AIR 1927 Pat 254). In that case, the suit, which was against two defendants was cognisable by a CMI Court as against the first, and by a Revenue Court as against the second, and the Patna High Court directed that the plaint be returned for presentation to the Revenue Court and a copy thereof should be retained on the record for the trial of the suit-as against the first defendant, with greatest respect, in my humble opinion, this procedure is not warranted by the Civil Procedure Code and would defeat the law relating to court-fees, it was the duty of the plaintiff to file two separate suits, one in the Civil Court and one in the Revenue Court. When a cause of action is triable wholly by a revenue Court that should not be included in a suit filed in a Civil Court. This is clear from sections 9, 15, 24 and 33 and Order 2 of the Civil Procedure-Code. The procedure of returning the plaint to be presented in another Court is applicable only when the whole suit is triable by another Court. In a case where only part' of the plaint is triable by a Civil Court, if the plaintiff does not file two separate plaints but flies only one plaint, he is himself responsible for the consequences of his action. in such a case, the plaintiff should be asked to amend the plaint so as to make it wholly triable by the Civil Court by deleting the portion of the plaint which is triable by another Court. If such an amendment is made, the plaint would be triable by the Civil Court. But if the plaintiff does not do so, then the whole plaint will have to be rejected as a plaint which is not wholly triable by the Civil Court. The learned counsel for the petitioner is not prepared to amend the plaint in the manner suggested. The lower Court was therefore right in refusing to entertain the plaint which was not wholly triable by the Civil Court.


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