Govardhandas S/O Paikaji ... vs Shridharprasad Rautrai
2003 Latest Caselaw 1269 Bom

JUDGMENT

S. A. Bobde, J.

1. This petition is directed against the judgment and Order dated 7-8-2002, passed in an appeal, confirming the order of the trial Court, rejecting the petitioner's plaint. The petitioner sued the respondent for possession of poultry farm. The poultry farm was given on lease, for which an Agreement of Lease was entered into between the parties on 26th July, 1999, at Nagpur. What was leased out is described in Clause 1 of the said lease-deed, which reads as follows :

"That the lessor hereby leases the Poultry Farm comprising two "pucca" sheds and "pucca" godown (in between the sheds and pucca varandah on eastern side of the sheds used as Brooder/Feed storage etc.) (total about 4200 square feet) and also Four brooder rooms and two living rooms, small bathroom and Chaukidar's shed (total about 750 sq.ft.), for a period of 11 months from the 1st day of August, 1999 to 30th June, 2000. The tenancy shall be monthly according to English Calender month."

2. Since the site of the poultry farm, which was leased out, is bounded by three sides by agricultural fields, the respondent filed an application under Order VII, Rule 11, claiming that the petitioner's suit for eviction is barred by the provisions of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, (for short, the Act).

3. The trial Court upheld the contention of the respondent and held that the suit was barred by the provisions of the said Act. The appellate Court, as stated earlier, has upheld that order.

4. Since the only ground on the basis of which Plaint has been rejected, is that the suit appears to be barred by the Act, it is necessary to consider the provisions, which bars jurisdiction. Section 124 of the Act bars the jurisdiction of the Civil Court to decide or deal with any of the question specified therein, which are required to be decided by the authorities under the Act. Section 124 of the said Act, reads thus :

"124. (1) No, Civil Court shall have jurisdiction to settle, decide or deal with any question including a question whether a person is or was at any time in the past, a tenant and whether the ownership of any land is transferred to, and vests in, a tenant under Section 46 or Section 49-A or Section 49-B which is by or under this Act required to be settled, decided or dealt with by the Tahsildar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.

(2) No order of the Tahsildar, the Tribunal, the Manager, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court. Explanation. -- For the purposes of this section, a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Court Act, 1906."

5. From the abovesaid provision, it is clear that the said provision does not bar the institution of a suit. It only bars the Civil Court from deciding or dealing any question, which is required to be settled, decided or dealt with by the authorities under the Act specified in that section.

6. The view that this section does not bar the suit itself is however very clear from Section 125 of the Act, which reads as under:

"125. (1) If any suit instituted in any Civil Court, involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the "competent authority") the Civil Court shall stay the suit and refer such issues to such competent authority for determination."

7. A conjoint reading of these two provisions lead to the conclusion that there is no bar to the institution of a suit even if it involves determination of question which is required to be decided by the authorities under the Act. The legislative Scheme is that where such questions arise in a suit the Civil Court is required to stay the suit and refer such issues to a Competent Authority for determination. In this view of the matter, and on this count alone, I am of view that the courts below have proceeded wrongly in passing the impugned orders, which in my view, suffer from an error of law apparent on the face of record. Hence, the impugned orders deserve to be set aside and they are accordingly set aside. The trial Court is directed to decide the suit as expeditiously as possible. The amounts so deposited by the respondent in this Court shall be transmitted to the trial Court.

8. The petition stands disposed of accordingly.