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2019 Supreme(Bom) 2431
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
Rohit B. Deo, J.
Sandeep - Appellant
Versus
Mrs. Suchita - Respondent
Civil Revision Application No. 60 of 2018 and Civil Revision Application No. 61 of 2018
Decided On : 01-04-2019
Shri A.P. Satpute, Advocate, for the Appellant; Shri S.O. Ahmed, Shri S.M. Patrikar, Advocates, Ms. P.D. Rane, Advocate, for the Respondent
Headnote:
Coal Bearing Areas Act, 1957 - Section 26 - Hindu Minority Guardianship Act, 1956 - Sections 8, 2, 3, 5, 4, 6, 7, 9, 10, 12, 14, 17, 20, 18, 30, 31 - Code of Civil Procedure, 1908 - Section 9 - Decree of Declaration - Permanent Injunction - There is a presumption that a civil court has jurisdiction - Ouster of civil courts jurisdiction is not to be readily inferred - A person taking a plea contra must establish same - Even in a case where jurisdiction of a civil court is sought to be barred under a statute civil court can exercise its jurisdiction in respect of some matters particularly when statutory authority or tribunal acts without jurisdiction - In light of observations it would be necessary to consider pleadings in Regular Civil Suit - Held, However final determination of rights of persons interested where rights are dependent on validity or otherwise of document of title or where determination involves decision on important civil and property rights must necessarily be that of civil court - It is well settled that a provision ousting jurisdiction of a civil court must be strictly construed jurisdiction of civil court is expansive and takes within its sweep every suit of a civil nature except a suit of which cognizance is either expressly or impliedly barred - A provision which purports to bar jurisdiction of civil court must be strictly construed thus would bar jurisdiction of civil court to take cognizance only of those matters which are necessarily to be decided by authorities or Tribunal under Act - Appeal are dismissed.
JUDGMENT
Rohit B. Deo, J. - The issue involved in both the civil revision applications is common, and the civil revision applications are finally heard at the admission stage with the consent of the parties and are decided by this common judgment.
2. Civil Revision Application 60/2018 emanates from Regular Civil Suit 70/2016 instituted by the legal heirs of deceased Bala Gore seeking decree of declaration and permanent injunction. The declaration sought is that the sale deed dated 01.12.2009 executed by deceased Bala Gore in favour of defendant 1 Sandeep Dakhare and defendant 2 Subhash Chimnaji Gore is illegal, sham, bogus and vitiated by fraud and that the plaintiffs are the owners of the suit property. Consequential reliefs are sought, to which a reference shall be made at a later stage. The defendant 1 Sandeep Dakhare preferred an application for rejection of plaint under Order VII, Rule 11 of the Code of Civil Procedure (Code) contending that the jurisdiction of the civil court is barred in view of the provisions of section 26 of Coal Bearing Areas (Acquisition and Development) Act, 1957 (hereinafter referred to as the ''Act''). This application is rejected by the Civil Judge (Junior Division), Rajura by order dated 31.01.2018.
3. Civil Revision Application 61/2018 assails the order dated 31.01.2018 rendered by the Civil Judge (Junior Division), Rajura in Regular Civil Suit 80/2016 in which suit the defendants 15, 16, 17 and 18 preferred an application for rejection of plaint under Order VII, Rule 11 of the Code on the ground that the jurisdiction of the civil court is ousted in view of the provisions of section 26 of the Act. Regular Civil Suit 80/2016 is instituted by Smt. Manda Arjun Pode, the daughter of deceased Chimanji Gore seeking decree of partition and cancellation of the sale deed, gift deed, partition deed and will executed qua the suit property.
4. The short submission of Shri A.P. Satpute, the learned counsel appearing on behalf of the applicant is that the jurisdiction of the civil court is barred in view of the provisions of section 26 of the Act.
5. Section 26 of the Act reads thus:
26. Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Central Government or the competent authority or any other person is empowered by or under this Act to determine.
6. The statutory scheme would indicate that the ouster of the jurisdiction of the civil court is not absolute. The ouster is restricted to a matter which the Central Government or the competent authority or any other person is empowered by or under the Act to determine.
7. In Ramesh Gobindram vs. Sugra Humayun Mirza Wakf reported in, (2010) 8 SCC 726 the Apex Court observes:
12. The well settled rule in this regard is that the civil courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of civil courts to try suits of civil nature is very expansive. Any statue which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a civil court. Any such exception cannot be readily inferred by the courts. The court would lean in favour of a construction that would uphold the retention of jurisdiction of the civil courts and shift the onus of proof to the party that asserts that civil court''s jurisdiction is ousted.
13. Even in cases where the statute accords finality to the orders passed by the Tribunals, the court will have to see whether the Tribunal has the power to grant the reliefs which the civil courts would normally grant in suits filed before them. If the answer is in negative, exclusion of the civil court''s jurisdiction would not be ordinarily inferred. In Rajasthan SRTC vs. Bal Mukund Bairwa, a three Judge Bench of this Court observed:"
There is a presumption that a civil court has jurisdiction. Ouster of civil court''s jurisdiction is not t
