S.L. Talati, J.
1. The petitioners were the original plaintiffs, before the Mamlatdar and they, along with others, had filed a suit being Suit No. 3 of 1981 under Mamlatdars' Courts Act. Opponents 2, 3 and 5 were also plaintiffs in the said suit. Opponent No. 1 was the defendant in that suit. Opponent No. 5 is described as the heir of deceased Chhanabhai Keshavbhai Patel who was original plaintiff No. 7 before the Mamlatdar in the suit filed under the Mamlatdars' Courts Act. The prayer in this petition is that the Mamlatdar may be directed to decide the case on merits. For the purpose of deciding this petition certain facts are required to be stated and those facts are that the petitioners No 1 to 4, opponent Nos. 2, 3 and 5 and one Chhanabhai Keshavbhai Pntel filed a suit being suit No. 3 of 1981 under Section 3 of the Mamlatdars' Courts Act against respondent No. 1. During the pendency of that suit original plaintiff No. 7, Chhanabhai Keshavbhai Patel died and nobody bothered to bring his heirs on record. The result was that the Mamlatdar acted under the provisions contained in Section 18(3) of the Mamlatdars' Courts Act, 1906 and he passed an order that the suit abates, and as a result the plaint came to be rejected. That order came to be challenged by filing a revision application before the Deputy Collector, Navsari and the revision application came to be dismissed on 20th July, 1982. Thereafter this petition is filed under Article 227 of the Constitution of India. I have heard the learned Advocate Shri R.N. Shah for the petitioners and the learned Advocate Shri A.K. Shah on behalf of respondent No. 1. Section 18(3) of the Mamlatdars' Courts Act, 1906 provides as under:
(3) In case of the death of any party, while the suit is pending,
(i) if application is made within one month of such death, the Mamlatdar shall determine summarily who is the legal representative of the deceased party and shall enter on the record the name of such representative;
(ii) if no such application is made, the suit shall abate.
Admittedly plaintiff No. 7 Chhanabhai Keshavbhai Patel died while the suit was pending. Admittedly within one month of the death no one preferred any application to bring any legal representatives of plaintiff No. 7 on record. Under these circumstances the Mamlatdar passed an order that the suit abates and as such prima facie it would appear that the order passed by the Mamlatdar was clearly in accordance with law and, therefore, that order would be required to be sustained and the Deputy Collector, Navsari was right in rejecting the revision application.
2. The Mamlatdars' Courts Act 1906 was enacted in the year 1906 and at that time it was enacted to provide a speedy remedy to litigants in respect of certain matters which were provided under Section 5 of that Act. It is not necessary to narrate all the powers given to the Mamlatdar under Section 5, but it is sufficient to say that the powers generally were in regard to agricultural lands and they generally related to granting of possession of agricultural lands and restoration regarding the use of water removing impediments in regard to natural flow of water in a defined channel and such other powers in regard to agricultural lands falling within the territorial jurisdiction of the Mamlatdar who used to preside over a court and such suits were to be filed within a period of six months from the date on which cause of action arose.
3. In respect of the matters over which the powers were given to the Court of the Mamlatdar under Section 5, the jurisdiction of the Civil Court was not barred and, therefore, the scheme of the Act was such by which a party would choose any forum. He may either file a suit in the Court of the Mamlatdar or he might as well file a suit in the Civil Court. However, if he wanted to file a suit in the Court of the Mamlatdar, he was required to do so within a period of six months from the date on which the cause of action arose. If he chooses the forum of a Civil Court he would have to file a suit within the limitation as prescribed by the Indian Limitation Act. The decision rendered by the Mamlatdar would not operate as res judicata and the party even after failing in the Court of the Mamlatdar might as well file a suit in the Civil Court because his first remedy was of a summary nature. This position is made clear in the case of Jamnadas Joitaram v. Devji Bhana and Anr. reported in 13 GLR 1972 at page 56 : The position is clarified in paragraph 6 of that judgment as under:
The Mamlatdars' Courts Act, 1960 is a statute of 1906, It provides a summary remedy in respect of certain types of suits only. The suits cognisable by the Mamlatdars' Court under the Mamlatdars' Courts Act are those as set out in Section 5 thereof. They are suits with respect to removal of obstruction from way to some land or flowing or surface water or dispossession of land or premises used for agriculture or grazing. A very narrow jurisdiction was conferred upon the Mamlatdar to try such suits in a summary manner and for expeditious disposal thereof a summary procedure was provided for.
It is further stated in that paragraph that the decision of the Mamlatdar in a suit under Section 5 would not operate as res judicata between the parties save and except that that decision would be binding between the parties till corrected, set aside or superseded by a Court of competent jurisdiction. It is further observed that:
the provisions of the Mamlatdars' Courts Act must be construed in the light of the circumstances then prevalent in the year 1906 keeping in view the exigencies of situation that such a court and such a procedure were required to meet. In construing the provisions of a statute the court is not to be oblivious to the historical background of the statute in question what the object of the Legislature was in enacting the statute and the purpose to carry out which it was enacted. The historical setting of the enactment is a well-recognised aid in construing the provisions of a statute.
4. Thereafter in the year 1948 a tenancy Act with its revolutionary 1956 created entirely a different situation. The Mamlatdar was given powers to decide questions to the total exclusion of the Civil Court. The decision of the Mamlatdar in exercise of the powers conferred upon him under Section 70 of the Bombay Agricultural Tenancy Act is stated to be final and binding between the parties and the same atleast cannot be got corrected by a decision of the Civil Court though it may be challenged by way of an appeal or revision as provided in the Tenancy Act. Now, therefore, before the passing of the Tenancy Act the Mamlatdars' Courts Act, 1906 which gave powers to the Mamlatdar created a situation where the decision rendered by the Mamlatdar could be corrected, set aside or superseded by a Court of the competent jurisdiction. Now the Mamlatdar exercises his powers under the Tenancy Act as well and the decisions rendered by the Mamlatdar while deciding questions under the Tenancy Act by following the procedure as laid down under the Mamlatdars' Courts Act becomes final and binding between the parties and they cannot be corrected by any competent court of jurisdiction. Now, therefore, the Mumlatdar has got jurisdiction to decide questions under Section 5 of the Mamlatdar' Court Act and has also jurisdiction to decide several other matters under the Tenancy Act and he follows the said procedure, which is prescribed in the Mamlatdars' Courts Act. Now, therefore, Section 18 of the Mamlatdar's Courts Act, 1906 which is a procedural section cannot be construed in the same manner in which it was construed before the passing of the Tenancy Act. Otherwise a situation would arise where the decision of the Mamlatdar under Section 18(3) while deciding some matters would be required to be construed in one way while deciding other matters it would not become to be construed differently. The procedural section cannot be construed in a manner by which such an absurd result might follow. In the case referred to above this Court in paragraph 8 observed that Section 18(3) of the Mamlatdars' Court Act, therefore, will have to be read imputing some rationality to it. Now, therefore, I cannot construe this particular section in the manner in which it was being construed formerly meaning thereby till the Tenancy Act was enacted.
5. I am not called upon to decide as to whether the legal representatives I of plaintiff No. 7 are required to be brought on record or not, because till to-day, I am told, nobody has bothered to bring them on record, it is only in this writ petition that respondent No. 4 is described as the legal representative of original plaintiff No. 7. Now, therefore, the question of bringing the legal representatives of original plaintiff No. 7 on record is not required to be decided by this Court. This Court has also not to decide whether the legal representatives of the plaintiff No. 7 have a right to file an application for setting aside the abatement. That question is not agitated before this Court. The only question which is required to be decided so far as this petition is concerned is as to what interpretation should be put on Section 18(3) of the Mamlatdars' Courts Act. 1906. A plain reading of the section would mean that if any party dies during the pendency of the suit in the Mamlatdar's Court and the legal representatives are not brought on record within the prescribed period the suit shall abate. I have already observed that some rational construction is required to be put on this section in view of the fact that the Mamlatdar now not only exercises his power under Section 5 of the Mamlatdars' Courts Act, but also exercises his powers under the Bombay Tenancy and Agricultural Lands Act and follows the same procedure, as prescribed by the Mamlatdars' Courts Act. Therefore, the rational interpretation would mean that the suit shall abate in regard to the parties who die and, therefore, the seven plaintiffs would be entitled to continue the suit. That is the only interpretation which would be not only practicable but just under the circumstances which I have narrated above. The result would be that the order passed by the Deputy Collector, Navsari in revision application is set aside. The order passed by the Mamlatdar, Chikli dated 14-9-1981 is also set aside, and the Mamlatdar is now directed to decide the suit on merits as if there are only seven plaintiffs and not eight plaintiffs as before. The reason is obvious that plaintiff No. 7 has died and his legal representatives are not brought on record by anyone. Therefore, the Mamlatdar should proceed as if the suit is before him and he is required to decide as if there are plaintiffs No. 1 to 6 and 8 only. The decision may be rendered on merits in accordance, with law. Rule modified to that extent. There will be no order as to costs.