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Hanuman Prasad Vs. Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberWrit Petn. No. 29 of 1956
Judge
Reported inAIR1957Raj281
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Rajasthan (Protection of Tenants) Ordinance - Sections 7; Constitution of India - Article 226
AppellantHanuman Prasad
RespondentBoard of Revenue and ors.
Appellant Advocate Durgalal Bardar, Adv.
Respondent Advocate Gopilal Yadav, Adv. for Opposite Party Nos. 2 to 5
DispositionApplication allowed
Cases ReferredRaj Lakshmi Dasi v. Banamali Sen
Excerpt:
.....it is certainly open to him to seek his redress under the regular law. the revenue courts have failed to exercise jurisdiction vested in them by law when they held that the remedy by way of regular suit of the petitioner was barred by a decision under section 7 of the ordinance......final under the law in summary proceedings, cannot operate as res judicata in a subsequent regular suit. learned counsel appearing on behalf of the other, side has not been able to refer to any authority to the contrary. we have, therefore, no hesitation in holding that a decision under section 7 of the rajasthan (protection of tenants) ordinance cannot be regarded as having the force of res judicata in a subsequent regular suit. the revenue courts have failed to exercise jurisdiction vested in them by law when they held that the remedy by way of regular suit of the petitioner was barred by a decision under section 7 of the ordinance. under these circumstances, it is the duty of this court to direct the revenue courts concerned to exercise jurisdiction vested in them by law. 5. this.....
Judgment:

Banawat, J.

1. This is an application under Article 226 of the Constitution of India against the judgment of the Rajasthan Board or Revenue dated the 6th of October 1955, dismissing an appeal filed by the petitioner and upholding the judgment of the Additional Commissioner, Jaipur, of the 1st November 1954, by which he held that the suit brought by the petitioner in the Court of the Assistant Collector, Jaipur, was barred by the general principles of res judieata.

2. The facts leading to this petition are as follows :

3. The petitioner, Hanuman Prasad, made an application under Section 7 of the Rajasthan (Protection of Tenants) Ordinance (hereinafter referred to as the Ordinance) to the Anti-Ejectment Officer of Jaipur, which was allowed on the 29th January 1953, and he was ordered to be reinstated. A revision petition was filed in the Court of the Board of Revenue against the said order of the Anti-Ejectment Officer and it was allowed and the order of re-instatement was set aside on the ground that the petitioner Hanuman Prasad had failed to prove that he was a tenant. It was, therefore, held that he was not entitled to any relief under the Ordinance. Hanuman prasad then filed a regular suit in the Court of the Assistant Collector of Jaipur on the 4th August 1953, for a declaration under Schedule I, Group B Item 30 of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951, that he is a Khatedar tenant of the land in question. A preliminary objection was taken by the opposite party that the suit was barred by the provisions of res judicata. The learned Assistant Collector repelled the preliminary objection and held that the decision under the Ordinance did not operate as res Judicata. An appeal was preferred before the Additional Commissioner, Jaipur, against the said order of the Assistant Collector which was allowed on the 1st November 1954, and it was held that the decision of the Anti-Ejectment Officer under Section 7 of the Ordinance which was upheld by the Board of Revenue in revision operated as res Judicata and the petitioner was not entitled to reagitate that he was a tenant in the subsequent suit which he had brought. A second appeal was filed to the Board of Revenue and the decision of the Additional Commissioner was confirmed. The learned members of the Board referred to Note No. 28 in Chitaley's commentary on Civil Procedure Code in coming to the conclusion that the general principles of res judicata applied and the decision under the Ordinance on the point that the petitioner was not a tenant operated as a bar against the plaintiff.

4. In this petition it has been contended on behalf of the petitioner that the view of the learned Members of the Board is not based on correct principles of law and is inconsistent with the observations of their Lordships of the Privy Council in the case of Bhagwan Din v. Gir Har Swaroop, AIR 1940 P C 7 (A). The decision, it is argued, under Section 7 (2) of the Ordinance is of a summary nature and the decision of the Privy Council in Bhagwan Din (A) directly governs this case. The relevant portion of Section 7 (2) of the Ordinance is as follows :

'On receipt of an application under Sub-section (1), the Sub-Divisional Officer or other officer of equal status, shall, give a notice to the landlord and to the person, if any, in possession of such holding or part and shall, on being satisfied after such summary enquiry as he may consider necessary that the applicant was ejected or dispossessed as aforesaid, order that the applicant be reinstated in such holding or part thereof and that any other person in possession of it be ejected therefrom.'

The provision of Section 7 (2) reproduced above expressly lays down that the nature of the proceedings of inquiry under Section 7 of the Ordinance is of summary character. The observations of their Lordships in AIR 1940 P C 7 (A) are as follows :

'They hold that the decision of the District. Judge under the Act of 1920--a decision from which by Section 12 there is no appeal--is a decision in a summary proceeding which is not a suit nor of the same character as a suit; that it has not been made final by any provision in the Act; and that the doctrine of res Judicata does not apply so as to bar a regular suit even in the case of a person who was a party to the proceedings under the Act.'

It is evident that the jurisdiction of the Anti-Ejectment Officer under the Ordinance is not exclusive as there is no provision in the Ordinance barring the proceedings in regular Courts on matters provided in the Ordinance. It is also clear that the Ordinance does not make any provision about the finality of the decisions under Section 7 of the Ordinance. The learned members of the Board might have been influenced by the observations of the Privy Council in the case of T.B. Ramchandra Rao v. A.N.S. Rarachandra Rao, AIR 1922 P C 80 (B), that 'the principle which prevents the same case being twice litigated is of general application, and is not limited by the specific words of the Code in this respect,' but it may be pointed out that these observations should be read as qualified by the decision in Bhagwan Din's case (A). A decision in a summary proceeding which is not made final under the law, cannot be considered to operate as res Judicata so as to bar a subsequent regular suit in cases such a suit is not expressly barred. The learned members of the Board have referred to Note 28 in Chitaley's commentary on Civil Procedure Code in support of their view but the note of the learned author does not appear to have been properly appreciated. The earlier decisions of the Board in the cases of Har Mukh v. Kanhaiya Lal, 1954 R R D 36 (C), Gona v. Padma, 1955 R R D 99 (D) and Bachan Singh v. Panna, 1954 Raj L W 31 (E) have also been referred with approval in the judgment of the Board. The decision in 1955 R R D 99 (D), proceeds on the authority of Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 S C 33 (P). The objection which was raised in that case was that as the Anti-Ejectment Officer had no jurisdiction to entertain the subsequent suit it was not barred by Section 11 of the Civil Procedure Code. The said objection was repelled by the authority of Raj Lakshmi Dasl's case (F). It may be observed that the fact of the proceedings under Section 7 of the Ordinance being of summary nature escaped the notice of the learned members of the Board who decided the case. The observations of their Lordships of the Supreme Court in AIR 1953 S C 33 (F) which have been referred to in the said Judgment do not appear to have been correctly appreciated by the learned members of the Board inasmuch as the observations regarding application of general principles of res Judicata were in respect of cases of the decisions of Courts of exclusive jurisdiction which became final under the law. As has been discussed above, the jurisdiction conferred by Section 7 of the Ordinance is not exclusive and the powers of the regular Courts to try such matters have not been barred. In 1954 R R D 36 (C) the learned members of the Board followed their own decision in 1954 Raj L W 31 (E). In 1954 Raj L W 31 (E) the observations of the learned members of the Board are in, a way obiter as the decision also proceeds on the merits of the case in spite of the fact that it has been mentioned that the proceedings in the suit were barred by the principles of res judicata. It may be pointed out that in their judgment the learned members of the Board at first propounded the principle as follows :

'It has been held that the remedies under the regular law and the Ordinance are not mutually exclusive of each other. If a person first seeks remedy under the Ordinance and is unsuccessful it is certainly open to him to seek his redress under the regular law.'

The learned members of the Board, however, modified the view already quoted on the reasoning noted below :

'The findings in connection with probate proceedings have been held to operate as res judicata by the High Court of Bombay and similarly a decision on the merits in insolvency proceedings is final and binding on the parties as res judicata. A proceeding under the Land Acquisition Act is not a suit but a decision in such proceeding by a competent Court will be res Judicata in the subsequent litigation on general principles of law. A judgment in a Civil Court will bar a remedy by way of an application under the Indian Companies Act in respect of the same matter and vice versa under general principles of law.'

The logic of this argument does not appear to be sound. The principles underlying the cases referred to in the aforesaid reasoning were not analysed and appreciated. It is obvious that proceedings under Section 7 of the Ordinance are of summary nature and in view of the principles laid down by the Privy Council in Bhagwan Din's case (A), a decision in summary proceedings which is not of a Court of exclusive Jurisdiction and which is not made final under the law in summary proceedings, cannot operate as res judicata in a subsequent regular suit. Learned counsel appearing on behalf of the other, side has not been able to refer to any authority to the contrary. We have, therefore, no hesitation in holding that a decision under Section 7 of the Rajasthan (Protection of Tenants) Ordinance cannot be regarded as having the force of res Judicata in a subsequent regular suit. The revenue Courts have failed to exercise jurisdiction vested in them by law when they held that the remedy by way of regular suit of the petitioner was barred by a decision under Section 7 of the Ordinance. Under these circumstances, it is the duty of this Court to direct the revenue Courts concerned to exercise jurisdiction vested in them by law.

5. This application is allowed with costs and the decision of the Board of Revenue dated the 6th October 1955, is set aside and the Assistant Collector, Jaipur, is directed to proceed with the trial of the suit of the petitioner according to law.


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