BALUBEN Vs. SADHURAM BHAILALBHAI PATEL
LAWS(GJH)-1979-12-22
HIGH COURT OF GUJARAT
Decided on December 17,1979

BALUBEN W/O FATESINH NANABHAI Appellant
VERSUS
SADHURAM BHAILALBHAI PATEL Respondents

JUDGEMENT

N.H.BHATT - (1.) This is a petition by some persons claiming to be tenants of agricultural piece of land S. No. 839 admeasuring 2 acres and 16 gunthas situated in the sim of village Bhadran of Borsad Taluka in Kaira District. The petitioners apprehended and in fact were allegedly threatened by the respondent landlord that he would disturb their possession. So by invoking sec. 70(nb) of the Bombay Tenancy Act they had approached the Mamlatdar for an injunction restraining the landlord from interfering with their possession. The Mamlatdar bad granted the injunction 5-7-74 restraining the respondent-landlord from interfering with the possession of the petitioners. After that injunction was served on the respondent he approached the Civil Judge (J. D.) Borsad on 15-7-74 and keeping him in dark about the injunction issued against him by the competent authority under the Bombay Tenancy Act procured an ex-parte injunction in his favour and against the petitioners. The Mamlatdar however then thought that as the Civil Judge had taken seizin of the matter he vacated the injunction by his order dated 30-11-74 against which the petitioners had preferred an appeal before the appellate authority under sec. 74 of the Bombay Tenancy Act had got the suspension of the order of the Mamlatdar and ultimately they had succeeded in getting the Mamlatdars order quashed and injunction confirmed against the respondent and in their favour. During the pendency of the appeal before the Prant Officer the Civil Judge confirmed the order of injunction by his order Annexure B dated 17-4-75. The petitioners had therefore moved the District Court by preferring the civil Misc. Appeal no. 56 of 1975. During the pendency of that appeal the Prant Officer had allowed these petitioners appeal. The learned Assistant Judge by his order dated 20-9-76 dismissed these petitioners appeal on the ground that the Prant Officer had no business to allow the appeal when he knew that the Civil Court was seized of the matter. Being aggrieved by that decision of the District Court the petitioners have moved this High Court by invoking its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Mr. Qureshi for the petitioners told me that the respondent-landlord had filed a revision application in the Gujarat Revenue Tribunal against the Prant Officers order and that said revision of the landlord was pending on the day this petition had come to be entertained by this High Court. Mr. Qureshi however pleaded his ignorance about the final outcome of that revision application.
(2.) It is now very clear that the power to issue an injunction is conferred on the Mamlatdar by virtue of sec. 70(nb) of the Tenancy Act. That power admittedly was exercised by the competent authority namely the Mamlatdar and still the Civil Judge was made to exercise his power. I am prepared to accept that the Civil Judge was kept in dark about that injunction issued by the Mamlatdar but in the course of the bearing he must have been appraised of the earlier exercise of jurisdiction by the Mamlatdar and still the Civil Judge not only did not visit the landlord with the penalty for playing fraud on the court but also proceeded further with the matter. Judicial comity required that the Civil Judge should have refused to proceed further with the matter soon on coming to know of the earlier tenancy proceedings before the Mamlatdar. The learned Civil Judge unfortunately did not do anything of the sort and proceeded to make the injunction absolute. When the matter was before the District Court the learned Assistant Judge committed the same mistake. On the day he took up the matter the competent authority namely the Prant Officer had already allowed the appeal of the petitioners and made absolute the temporary injunction. The learned Assistant Judge was fully alive to it and still he observed as follows : "When that the order was passed by the Prant Officer the order of the Civil Court which is not questioned before me was effective and brought to the notice of Prant Officer. Hence in the fitness of things the Prant Officer should not have passed an order with the full knowledge that it will be in conflict with the order of the Civil Court and will result in unnecessary complications". Had the observation of the learned Assistant Judge been not in the context of the present case the matter would have been different. The learned Assistant Judge referred to the judicial propriety on the part of the Prant Officer but the very basis should have been adopted by him while dealing with the appeal against the order of the Civil Judge who had continued to clutch at the matter with full knowledge that prior to his taking cognizance a competent tenancy forum had taken seizin of the matter. The learned Assistant judge therefore should have seen that the earlier proceedings before the Mamlatdar were allowed with full sway and swing and the civil court having been subsequent forum should have maintained Judicial dignity and refrained from taking up the matter in the face of the cognizance by the competent tenancy forum under sec. 70(nb) of the Act and sec. 74 read with sec. 70(nb) of the Act.
(3.) In the above view of the matter the appellate order passed by the learned Assistant Judge in the civil misc. appeal no. 56 of 1975 confirming the injunction order made absolute by the learned Civil Judge in the civil suit no. 179 of 1974 on his file cannot be allowed to stand. The parties rights and liabilities in respect of injunction would abide by the decision of the Gujarat Revenue Tribunal as it might have been delivered or might be delivered in future.;


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