A civil suit challenging a revenue officer's order is not maintainable if the party has opted for an appeal against the same order, as per the jurisdictional limits set by the Himachal Pradesh Land Revenue Act.

JUDGMENT :

Jyotsna Rewal Dua, J.

Petitioner seeks review of judgment in Rajinder Kumar Sood vs. Om Prakash Sood, [CMPMO No. 286 of 2018, decided on 4.10.2021]

i) For convenience, petitioner is hereinafter referred to as the review petitioner and the respondent as review respondent. For sake of clarity, it may be mentioned here that review petitioner was actually the respondent and review respondent was the petitioner in the aforesaid case. The aforementioned judgment allowed an application moved by the review respondent under Order 7 Rule 11 of Code of Civil Procedure (in short ‘CPC’). Consequently, the plaint instituted by review petitioner was rejected.

ii) Review petitioner challenged the decision in Rajinder Kumar Sood (supra) before the Hon’ble Apex Court in Special Leave Petition (Civil) Diary No. 15161/2022. The SLP was dismissed as withdrawn with following order passed on 12.12.2022:-

“Mr. Viplav Sharma, learned counsel for the petitioner would submit that the impugned order passed by the learned Single Judge is in the teeth of a full Bench of the same Court which takes a different view. However, there is no reference to the judgment of the full Bench.

Thus, the learned counsel for the petitioner seeks permission to withdraw the special leave petition with liberty to bring the judgment of the full Bench to the notice of the Court by way of a review.

Therefore, the petition stands dismissed as withdrawn with liberty to file a review.

We also make it clear that, in any case, the review is unsuccessful, it will be open to the petitioner to challenge the impugned order as well.”

The SLP was dismissed as withdrawn in view of statement made by the learned counsel for the review petitioner that:- (i) The impugned order (sought to be reviewed presently) is in the teeth of a Full Bench of the same Court which takes a different view. There is no reference to the judgment of the Full Bench in the impugned order; (ii) Learned counsel for the review petitioner sought permission to withdraw the SLP with liberty to bring the judgment of the Full Court to the notice of this Court by way of a review petition.

In view of above statement of the learned counsel for the review petitioner, the SLP was dismissed as withdrawn with liberty to the appellant to file review petition. It was also observed that in case the appellant (present review petitioner) remained unsuccessful in the review petition it would be open for him to challenge that order as well.

It is in the above background, present petition has been filed seeking review of Rajinder Kumar Sood (supra)

2. Learned Senior Counsel for the review petitioner submitted that application moved by the review respondent under Order 7 Rule 11 CPC could not have been allowed and consequently plaint filed by the review petitioner could not have been rejected in Rajinder Kumar Sood (supra) on the ground that there was bar under Section 171 of the Himachal Pradesh Land Revenue Act, 1954 (in short the ‘Act’) from entertaining the civil suit. In view of law laid down in Chuhniya Devi vs. Jindu Ram, [1991 (1) Sim. L.C. 223] read with Sections 37(3) & 46 of the Act, the civil suit instituted by the review petitioner for assailing the order dated 13.07.2012 passed by Assistant Collector Grade (in short ‘A.C. Grade’), Theog, District Shimla was maintainable. In support of above submission, learned Senior Counsel for the review petitioner placed specific reliance upon following conclusion drawn in Chuhniya Devi (supra) :-

“Our answer, therefore, is:

(a) that an order made by the competent authority under the H.P. Land Revenue Act, 1954, is open to challenge before a civil court to the extent that it relates to matters falling within the ambit of section 37(3) and section 46 of that Act; and

(c) the civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under section 104 of the H.P. Tenancy and Land Reforms Act, 1972, except in a case where it is found that the statut