[Cites 29, Cited by 0]
Gujarat High Court
Pravin Jitendrakumar Jain vs State Of Gujarat on 16 March, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5138 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
√ -
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PRAVIN JITENDRAKUMAR JAIN & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SIDDHARTH R KHESKANI for the Petitioner(s) No. 1,2,3
MR JAY TRIVEDI AGP for the Respondent(s) No.1-3
MR PM BUCH(7383) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 16/03/2026
ORAL JUDGMENT
1. Rule. Learned AGP Mr. Jay Trivedi for the
respondent nos.1 to 3 and learned advocate, Mr.
P.M. Buch for respondent no.4 waive service of
notice of rule.
2. By filing present petition under Articles 14, 19,
21, 226 and 300A of the Constitution of India as
well as under the provision of the Mamlatdar's
Court Act, 1906 (hereinafter referred to as "the
Act of 1906" for short), the petitioners have
prayed for quashment of the order dated 22.11.2023
passed by the respondent no.3 as well as the order
dated 18.07.2023 passed by the respondent no.2.
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Alternative prayer is also sought for to remand
the matter back before the respondent authorities
for fresh consideration.
3. Heard learned advocate, Mr. Siddharth Kheskani for
the petitioners, learned AGP Mr. Jay Trivedi for
the respondent nos.1 to 3 and learned advocate,
Mr. P.M. Buch for the respondent no.4.
4. Learned advocate, Mr. Kheskani referred to the
documents produced on record and submitted that
the petitioners herein are the original defendants
in the suit instituted by the respondent no.4, who
is original plaintiffs before the respondent -
Mamlatdar, wherein the notice was issued upon the
petitioners, however initially, they did not
remain present and, thereafter, they appeared
before the respondent - Mamlatdar and produced on
record copies of map as well as sale deed and
requested for time for submitting reply but
instead of considering their request, the matter
was proceeded further and ultimately, the suit
preferred by the respondent no.4 herein was
allowed, against which, revision application was
preferred before the respondent - Deputy Collector
by pointing out manyfold grounds but without
properly considering the facts of the case, the
respondent - Deputy Collector rejected the said
revision application, which has resulted into
filing of the present petition.
5. Learned advocate, Mr. Kheskani submitted that the
respondent no.4 herein is the owner of land
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bearing Survey Nos.413 & 1299 situated in the sim
of Village : Undrel, Taluka : Daskroi, District :
Ahmedabad, whereas the petitioners are the owner
of land bearing Survey Nos.403 & 415 of the said
village. He submitted that as per the case of the
respondent no.4 herein, the petitioners have
blocked the way to enter into the land owned by
the respondent no.4, therefore, the respondent
no.4 was constrained to instituted suit before the
respondent - Mamlatdar under Section 5 of the Act
of 1906 and sought injunction, wherein the notice
was issued, which was duly served upon the
petitioners, however for some unavoidable
circumstances, the petitioners could not remain
present before the authority concerned but
subsequently, they appeared and submitted certain
documents like map, sale deed etc. and also
requested for time to file reply in the matter but
instead of granting time, the respondent -
Mamlatdar proceeded further with the matter ex
parte and passed impugned order, whereby the suit
preferred by the respondent no.4 has been allowed,
therefore, the said order was challenged before
the respondent - Deputy Collector by filing
revision application but there also, the facts as
pointed out by the petitioners were not properly
considered and passed impugned order, whereby the
said revision application came to be rejected.
6. Learned advocate, Mr. Kheskani submitted that if
the Hon'ble Court would make cursory glance upon
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the contents of the suit and/or pleading of the
suit filed before the respondent - Mamlatdar, in
that event, it is found out that simple
application was preferred and there was no
verification in support of the said application,
therefore, there are discrepancies in institution
of the suit, which clearly goes on to show that at
the time of institution of the suit, the
respondent no.4 has not complied with the
statutory provision of law, more particularly,
Sections 7 to 19 of the Act of 1906. He referred
to those sections and submitted that it is the
duty of the officer concerned to see that if any
defect is found out in the proceedings, in that
event, those defect can be rectified by permitting
the parties to lead evidence, however in the facts
of the present case, it has not been done so,
which resulted into violation of principle of
natural justice. He referred to the documents
produced on record and submitted that for the
purpose of determination of the issue, the issues
are required to be framed but if the facts of the
present case are examined, in that event, it is
found out that not a single issue has been framed
by the respondent - Mamlatdar and in absence of
the same, proceeded further with the suit, that
too, ex parte. He submitted that as per Section 19
of the Act of 1906, it is the duty of the
Mamlatdar concerned to prepare panchnama and Map
of the place in question but the respondent -
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Mamlatdar has not taken care of drawing panchnama
and map. He further submitted that there is time
framed scheduled as mentioned in the statute
itself and those particular facts have been
clearly mentioned in the revision application
preferred by the petitioners before the respondent
- Deputy Collector, however, none of them have
been considered. He submitted that in fact, the
respondent no.4 has made several contentions in
the suit preferred by him but his evidence has not
been recorded by the respondent - Mamlatdar. He
further submitted that if the contents of the suit
are carefully examined, in that event, it is found
out that there is no specific date about exact
date of generation of cause of action, therefore,
the said suit ought not to have been entertained
by the respondent - Mamlatdar.
7. Learned advocate, Mr. Kheskani has taken me
through the documents produced on record and
submitted that in fact, in the proceedings before
the respondent - Deputy Collector, a report was
submitted by the Sarpanch of Undrel Gram Panchayat
along with the map, which are produced on record,
and if the Hon'ble Court would make cursory glance
upon those set of documents, in that event, it is
found out that the said Sarpanch has stated in a
very categorical terms that to ingress and egress
the land owned by the respondent no.4, alternative
way is available for them i.e. from the southern
side of Government land, there is pakka dammar
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road available and the said fact is substantiated
by the Map produced on record at Page No.97. He,
however, submitted that despite above facts, both
the revenue authorities have not properly
considered the case of the petitioners and passed
impugned orders. It is, therefore, urged that the
present petition may be allowed and the impugned
orders may be quashed and set aside.
8. At this stage, learned advocate, Mr. Kheskani
submitted that it is an admitted position of fact
that the respondent - Mamlatdar has not complied
with the mandatory requirement as prescribed in
the statute itself, therefore, there is apparent
error committed by the revenue authorities while
passing impugned orders. It is, therefore,
submitted that the impugned orders may be quashed
and set aside and the matter may be remanded back
before the respondent - Mamlatdar for fresh
consideration.
9. On the other hand, learned advocate, Mr. Buch
appearing for the respondent no.4 has opposed the
present petition contending inter alia that the
respondent authorities have not committed any
error as contended by learned advocate for the
petitioners, therefore, the present petition may
be rejected. He submitted that the petitioners
have challenged the concurrent findings of fact
given by the respondent authorities, that too,
based upon material available on record, which do
not require any interference at the hands of this
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Hon'ble Court. He submitted that just because of
the fact that the petitioners have blocked the way
to ingress and egress the land owned by the
respondent no.4, the suit was instituted, which
was rightly considered by the respondent -
Mamlatdar and, thereafter, the respondent - Deputy
Collector. He further submitted that in fact,
despite issuance of notice upon the petitioners,
they had chosen not to appear and, thereafter,
they appeared and sought time for filing reply but
that was the dilatory tactic adopted by the
petitioners, therefore, the respondent - Mamlatdar
proceeded ex parte. He further submitted that in
fact, whatever arguments canvassed before this
Hon'ble Court in the present proceedings, were
never raised before the revenue authorities and if
those contentions would have been raised, in that
event, those would have been considered. He,
therefore, submitted that in view of the fact that
no error of law has been committed by both the
revenue authorities while passing impugned order,t
he present petition may not be entertained and it
may be rejected.
10. Learned AGP Mr. Trivedi appearing for the
respondent nos.1 to 3 have submitted that the
reasons assigned by both the revenue authorities
while passing impugned orders are just and proper
and they have not committed any error of law,
which would call for interference at the hands of
this Hon'ble Court. He, therefore, submitted that
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the present petition may be rejected.
11. In view of the rival submissions canvassed by
learned advocates appearing for the parties and
having gone through the documents produced on
record including the findings given by both the
revenue authorities in the impugned orders, the
moot question, which would arise for consideration
of this Hon'ble Court, is as to whether the
respondent - Mamlatdar has complied with the
mandatory provisions of law as prescribed under
the statute and in absence of it, whether the
impugned orders would stand.
12. It transpires from the facts of the present case
that the petitioners and the respondent no.4
herein both are having land adjacent to each other
and the dispute is raised by the respondent no.4
about the approach way to ingress and egress their
land, which resulted into filing of suit by the
respondent no.4 before the respondent - Mamlatdar
under Section 5 of the Act of 1906, wherein notice
was issued upon the petitioners but admittedly
initially they did not appear and, thereafter,
they appeared before the respondent - Mamlatdar
and produced on record copies of Map and sale deed
and to file reply in the said proceedings, a time
was sought for but it was declined and the
respondent - Mamlatdar proceeded further ex parte
and, thereafter, passed an order allowing the suit
preferred by the respondent no.4, which was
challenged before the respondent - Deputy
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Collector by the petitioners by filing revision
application, however, the said revision
application came to be rejected by impugned order,
therefore, both aforesaid orders have been
assailed before this Hon'ble Court by filing
present petition.
13. However having considered the facts of the case
coupled with the documents available on record, it
is evident that earlier the petitioners were not
remained present and then, they appeared and
produced certain documents like Map and sale deed
but thereafter, time was not granted to them to
file reply and on the contrary, the said suit was
proceeded ex parte, which is not in dispute and
when the revision application was preferred by the
petitioners against the said ex parte order, it
was also rejected. Thus all above facts are not in
dispute.
14. However main facet of submissions canvassed by
learned advocate, Mr. Kheskani appearing for the
petitioners is that though there were defects in
the suit, it had been entertained by the
respondent - Mamlatdar; there was no mention about
the date of generation of cause of action; and
while entertaining the suit and/or deciding the
said suit, the respondent - Mamlatdar has not
complied with the mandatory provisions as
prescribed in the statute itself, therefore, the
said submission is required to be considered.
15. The provision of the Act of 1906 was enacted to
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consolidate and amend the law relating to the
powers and procedures of Mamlatdar's Courts and
was brought into force with effect from
29.10.1906. The said provisions of the Act
indicate that the Mamlatdar has to preside over
the Court which is called as Mamlatdar's Court
which is enjoined with the power as contemplated
under Section 5(1)(a) and (b), as well as Section
5(2) of the Act of 1906. The proceedings before
the Mamlatdar are termed as a suit. Section 6
confers powers upon the Collector to transfer any
suit from one Mamlatdar's Court to another;
Section 7 requires that all suits are to be
commenced by a plaint which is to be presented to
the Mamlatdar in open Court by the plaintiff, the
contents whereof are listed in Section 7(a) to
(f). Section 8 permits informal petitions to be
treated as plaints and Section 9 enjoins the
Mamlatdar, in case the claim does not contain the
particulars specified in Section 7 or is
unnecessarily prolix to examine the plaintiff upon
oath in order to ascertain from him such of the
particulars specified in Section 7 as are not
clearly or correctly stated in the plaint and to
reduce the examination in writing in the form of
an endorsement or Annexure to the plaint, which is
to be deemed to be a part of the plaint.
16. Section 10 requires the plaint to be subscribed
and verified by the plaintiff, whereas Section 11
requires the endorsement by the Mamlatdar as to
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such verification. Section 12 requires the
Mamlatdar to reject the plaint in case the
requirements thereof are not complied, whereas
Section 13 empowers him to return the plaint upon
the grounds stated therein. Upon the plaint being
admitted, notices are to be issued to the other
side for fixing the trial of the case. The
provisions of Section 15 empowers the Mamlatdar to
ensure and enforce attendance of the witnesses.
Section 16 empowers him to dismiss the plaint in
default and so also to proceed ex parte and set
aside the order of default. Similarly power to add
parties (Section 18); power to bring legal heirs
on record are also conferred upon him. Section 19
delineates what issues are to be decided by the
Mamlatdar. Section 19(2) empowers him to inspect
the property in dispute or cause it to be so
inspected. Sections 21 and 22 relate to the powers
of the Mamlatdar to execute his own orders.
Section 23(3) provides that where a Revisional
Authority is seized of a revision filed under
Section 23(2), it shall be deemed to be a Court.
Thus, the provisions of the Act of 1906 indicate
that for the purpose of proceedings under the Act
of 1906, the Mamlatdar is a Court and the Act of
1906 is a complete Code in itself, as powers have
been conferred upon the learned Mamlatdar to fully
and effectively decide any dispute of the nature
as specified in Section 5, which may arise before
him and also to enforce such decision.
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17. Having considered the provision of the Mamlatdar's
Courts Act, it appears that the said provisions
mandates that defects in the application must be
considered by the Mamlatdar. This includes
ensuring that all necessary documents are filed
correctly and that the application is complete in
all respects. The Mamlatdar has the authority to
reject applications that do not meet these
requirements, thereby maintaining the integrity
and efficiency of the court system. I have also
considered the suit preferred by the respondent
no.4 and found that the said application did not
mention the date on which the cause of action had
arisen nor anything is mentioned in the suit about
the cause of action. Section 7 of the Act reads as
under:
"7. Suits commenced by plaint - All suits under
this Act shall be Commenced by a plaint,
which shall be presented to the Mamlatdar
in open Court by the plaintiff, and which
shall contain the following particulars :-
Contents of plaint -
[a] the name age, religion, caste, profession
and place of abode of the plaintiff.
[b] the name, age, religion, caste, profession
and place of abode of the defendant;
[bb] the nature and situation of the impediment
errected and the situation of the lands
which are adjacent to each other, and the
nature of the relief sought;
[c] the nature and situation of property of
which possession for use if sought, or the
Mature of the injunction to be granted, as
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the case may be;
[d] the date on which the cause of action
arose;
[e] the circumstances out of which the cause of
action arose; and
[f] a list of the plaintiff's documents, if
any, and of his witnesses, if any, showing
what evidence is required from each
witness, and whether such witnesses are to
be summoned to attend, or whether the
plaintiff will produce them on the day and
at the place to be fixed under section 14."
18. Section 7 of the Act of 1906 provides for the
mandatory contents to be mentioned in the suit and
in case, the suit does not contain the mandatory
contents and is preferred by way of an informal
application, in that case, even informal petitions
/ plaints can also be treated as plaint per
Section 8 of the Act.
19. Section 8 of the Act of 1906 reads as under:
"8. Informal petitions to be treated as plaints
- Where a petition not in the form of a
plaint is presented to the Mamlatdar and
the subject matter thereof appears to fall
within the scope of section 5, the
Mamlatdar shall explain to the person
presenting the petition the nature of the
reliefs afforded by this Act, and shall
inquire whether the petitioner desires to
obtain relief thereby. If the petitioner
expresses a desire so to obtain relief, the
Mamlatdar shall endorse the desire on the
petition which shall thereupon be deemed to
be a plaint presented under section 7."
20. In view of above provision, it appears that once
if any petition, which is not in consonance with
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the mandatory requirements of Section 7 of the Act
is preferred by an aggrieved party, in that event,
it is for the Mamlatdar to treat the same as
plaint after following the procedure as provided
in Section 8 of the Act. If the applicants express
their desire to obtain relief as prescribed in
Section 8 of the Act, in that event, it is the
duty of the Mamlatdar to endorse that desire on
the petition and thereafter the petition can be
treated to be a plaint as mentioned in Section 7
of the Act and, thereafter, the Mamlatdar is
required to follow the procedure prescribed under
Sections 9, 10 and 11 of the Act, which read as
under:
"9. Examination of Plaintiff on oath - Where
the plaint does not contain the particulars
specified in section 7 or is unnecessarily
prolix, the Mamlatdar shall forthwith
examine the plaintiff upon oath and
ascertain from him such of the particulars
specified in section 7 as are not clearly
and correctly stated in the plaint and
shall reduce the examination to writing in
the form of an endorsement on or annexure
to the plaint which shall thereupon be
deemed to be part of the plaint. Where the
plaintiff requires time to obtain any of
the particulars specified in section 7, the
Mamlatdar shall grant him such time as may
under all the circumstances appear
reasonable.
10. Plaint to be subscribed and verified - When
the plaint is presented and has, if
necessary, been treated in the manner
specified in section 9, the Mamlatdar shall
require the plaintiff to subscribe and
verify the plaint in his presence, in open
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Court in the manner following, or to the
like effect :
"1. A. B., the plaintiff, do declare that
what is stated in this plaint is true
to the best of my information and
belief."
11. Endorsement by the Mamlatdar -
[1] The Mamlatdar shall endorse the plaint to
the effect that it was duly subscribe and
verified.
[2] Procedure where plaintiff cannot write (2)
Where the plaintiff cannot write, the
verification may be written for him in open
Court and he shall affix his mark to his
name in token of the authenticity of the
verification and the Mamlatdar shall, in
such case record that the verification was
made in his presence at the request of the
plaintiff, and that his mark was so
affixed."
21. Thus in view of the above provisions, more
particularly, Section 9 of the Act, it provides
that when a plaint does not contain the particular
facts as stated in Section 7 of the Act, what the
Mamlatdar is required to do is to examine the
plaintiff on oath and to ascertain from him the
particulars specified in Section 7 of the Act. It
is a settled position of law, that the provisions
of a Statute have to be construed and read to have
the meaning, power and authority, which is
specifically conferred by the provisions of the
said Statute and not otherwise. Nothing can be
imported into the Statute which has not been
provided therein, by adopting any device or means.
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22. Thus considering the above provision, if the facts
of the present case are examined, in that event,
it is found out that the date on which the cause
of action arose and the circumstances out of which
the cause of action has arisen were not stated by
the respondent no.4 in the suit, therefore, the
Mamlatdar ought to have followed the procedure as
prescribed under Section 9 of the Act by examining
the plaintiff (the respondent no.4) on oath and
after the plaintiff (the respondent no.4) is
examined on oath, the Mamlatdar was required to
follow the procedure prescribed in Section 10 of
the Act by making necessary verification as
prescribed under Section 10 of the Act and
thereafter the Mamlatdar ought to have endorsed
the suit to the effect that it was duly subscribed
and verified. However in the facts of the present
case, admittedly, a formal application was
submitted by the respondent no.4, wherein notice
was issued and admittedly, there is no
verification accompanied with the said application
and the evidence of the respondent no.4 has not
been recorded. Thus from this fact itself, it is
clear that the respondent - Mamlatdar has not
performed any of the duty which is cast upon him
by way of Sections 8 to 11 of the Act.
23. At this stage, it is to be stated that when the
statute has prescribed the specific procedure for
treating any informal application as plaint, it is
the duty of the Mamlatdar to act in accordance
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with the provisions of the Act and his subjective
satisfaction must reflect on papers by following
the due procedure prescribed under the Act.
However in the facts of the case, as can be seen
from the documents available on record, there is
no verification by the respondent - Mamlatdar. Not
only that, on perusal of the impugned order passed
by the respondent - Mamlatdar, it also transpires
that the Mamlatdar has not framed any issues,
which is also a mandatory requirement as per
Section 19 of the Act.
24. Therefore in view of the above discussions, the
present petition stands allowed partly. The
impugned order dated 22.11.2023 passed by the
respondent no.3 as well as the order dated
18.07.2023 passed by the respondent no.2 are
hereby quashed and set aside and the matter is
remanded back to the respondent - Mamlatdar for
fresh consideration after providing opportunity to
both the parties. It is open for the parties to
raise all contentions available under the law as
also to lead evidence to substantiate their case.
It is clarified that this Court has considered the
merits of the case.
25. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
