Back
2021 Supreme(Bom) 325
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
SANDEEP K. SHINDE J.
Bhagwat Buasaheb Phunde – Appellant
Versus
Rama Srihari Ghule – Respondent
Writ Petition No. 6240 of 2021
Decided on : 03-09-2021
Advocate Appeared:
For the Appellant :Mr. Shaikh Tarek Mobin H., Advocate
For the Respondent: Mr. A.G. Ambetkar, Mr. R.B. Bagul, Adv
Point of Law: Civil Law - Plaint - Issue of Cause of action - Preliminary objection as to maintainability of plaint on ground of absence of cause of action should be raised by respondent as early as possible but if a party raises objections after filing written statement preliminary objection cannot be ignored.
Headnote:
Constitution of India, 1950 - Article 227 - Mamlatdar’s Courts Act, 1906 - Section 5, 12, 14, 19 (1)(c)(3) and 23(2) - Disturbance or obstruction to use of suit road - Whether disturbance or obstruction, or such attempted disturbance or obstruction, first commenced within six months from suit was filed - Sought preventive injunction against Petitioner from obstructing them, from using road that passes through Gut No. 20 and to remove impediment caused by him thereto. Tahsildar vide order granted injunction - Meanwhile, parties were directed to maintain status-quo. Unfortunately, Tahsildar concluded proceedings after eight years) whereby directed Petitioner to remove impediment to use of suit road and restrained him from causing disturbance or obstruction to use of suit road - Order of Tahsildar was confirmed in Revision by Sub-Divisional Officer vide order - It is against this order of Sub-Divisional Officer, instant petition is preferred under Article 227 of Constitution of India.
Finding of the Court :
In spite of this fact Mamlatdar admitted plaint. Whereafter he proceeded to take all evidence after framing the issue, as required under Section 19 of Act. It may be noted that although Petitioner had participated in proceedings on two occasions (original and on remand), he did not seek rejection of plaint on ground that cause of action arose six months before presentation of plaint. Nor did pleaded this defence in his reply/ written statement. In absence of such defence, appropriate issue, “whether disturbance or obstruction, or such attempted disturbance or obstruction, first commenced within six months from suit was filed.” could not be framed - In absence of such defence, appropriate issue, “whether disturbance or obstruction, or such attempted disturbance or obstruction, first commenced within six months from suit was filed.” could not be framed - Scheme of act does not expressly provide that power under Section 12 should be exercised at a particular stage only, but scheme of act implies, that party can seek rejection of plaint before it is admitted under Section 14 of act or by raising objection in written statement as to admissibility of plaint to enable Mamlatdar to frame issue in terms of Section 19 (1)(c)(3) of Mamlatdar’s Courts Act.
Result: Petition is dismissed
JUDGMENT :
1. Rule.
2. Rule made returnable forthwith. Heard both sides by consent for final disposal.
3. Instant petition challenges order dated 21st May, 2020 passed by Tahsildar under Section 5(2) of the Mamlatdar’s Courts Act, 1906 and order dated 3rd March, 2021 passed in RTS Revision No. 68/2020 under Section 23(2) of the Mamlatdar’s Courts Act (‘Act’ for short), passed by the Sub-Divisional Officer, Pathardi Division, Pathardi.
4. Factual Matrix : On 15th July, 2021, the Respondents herein sought preventive injunction against the Petitioner from obstructing them, from using the road that passes through the Gut No. 20 and to remove impediment caused by him thereto. Tahsildar vide order dated 6th March, 2012 granted the injunction. In Revision at the instance of the Petitioner, the Sub-Divisional Officer vide order dated 22nd July, 2012 set aside the injunction order and remanded the proceedings to Tahsildar for reconsideration and directed to conclude the proceedings within three months. In the mean while, parties were directed to maintain status-quo. Unfortunately, Tahsildar concluded the proceedings on 7th March, 2019 (after eight years), whereby directed the Petitioner to remove impediment to use of suit road and restrained him from causing disturbance or obstruction to the use of suit road. The order of the Tahsildar was confirmed in Revision by the Sub-Divisional Officer vide order dated 3rd March, 2021. It is against this order of the Sub-Divisional Officer, instant petition is preferred under Article 227 of the Constitution of India.
5. Petitioner would argue that the Courts below have committed obvious error in entertaining the plaint, without first ascertaining, whether suit was brought within six months from the date on which the cause of action arose. Submission is that plaint presented by the Respondents on 15th July, 2011 does not contain particulars required in terms of Section 7, Clause (d) and (e) i.e. as to the date on which the cause of action arose and the circumstances out of which the cause of action arose and therefore Mamlatdar ought to have rejected the plaint under Section 12 of the Mamlatdar’s Courts Act. Reliance was placed on the judgment of this Court in the case of Vishnu Sukhdev Ghanvat and Ors. Vs. The Collector, Ahmednagar and Ors. 2017(1)Mh.LJ.811; wherein learned Judge of this Court has held that the “provisions of Sections 19 and Section 5(3) of the Act would show that suit needs to be brought within six months from the date of cause of action and this is mandatory in nature.”
6. On the other hand, learned Counsel for the Respondents and the State supported the impugned orders and would contend that objections as to admissibility of the plaint for want of particulars, as to when cause of action arose, was not taken before the Tahsildar. It is submitted that the objections of this kind cannot be taken and or entertained for the first time, in Writ Petition and that too, after two rounds (original and in remand), while concurrent findings of facts have been recorded by two fact – finding authorities against him.
7. To appreciate contentions of respective Counsel, it would be expedient to reproduce relevants provisions of the Mamlatdar’s Courts Act. Provisions read as under;
“Section 5(3) : No suit shall be entertained by Mamlatdar’s Court unless it is brought within six months from the date on which the cause of action arose.”
“Section 7(d) : 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 date on which the cause of action arose.”
8. Section 5 of the Act, empowers the Mamlatdar (i) to give immediate possession of lands or premises used for agriculture to any person, who has been dispossessed, otherwise than by due course of law or (ii) restore the use of water from any well, tank, canal or water-course, whether natural or artificial used for agricultural purposes to any person, who has be
