- (1.)THIS revisional application by defendant No.3 Deva Ram is directed against the order of the Additional Civil Judge, Jodhpur dated January 24, 1977 by which he decided issue No. 6 in favour of the plaintiff Jas Raj (non-petitioner No. 3) and against the defendants.
(2.)DEFENDANT No. 1 State of Rajasthan is non-petitioner No. 1 and defendant No. 2 Mining Engineer, Jodhpur is non-petitioner No. 2 in this revision.
A few facts necessary for the disposal of this revision may briefly be noticed: Plaintiff Jesaram instituted a suit in the court of Munsif City, Jodhpur against the defendants on July 28, 1971 for declaration and perpetual injunction.

The suit was transferred from the court of Munsif City to the Court of Additional Civil Judge, Jodhpur.

The case of the plaintiff is that he submitted applications for grant of rent-cum- royalty lease in respect of allotment of quarry No. 377 situate in Kali Beri Area Jodhpur in the office of the defendant No. 2 on December 27, 1966. January 21, 1967 and some other applications which are still pending, that one Mahaveer Prasad Jain, who was a clerk in the Mining Department, used to look after the work of allotment of quarries situate in Kali Beri Area, Jodhpur from 1966, to 1969 that he in collusion with the other employees & officers of the Mining Department and by defrauding the public was bent upon allotting illegally the quarries to his relatives and known persons, that letter No. 1234, October 3,1967 containing wrong facts was issued by Mining Department stating that quarry No. 377, Kali Beri Area, Jodhpur had already been allotted and that this was done with a view to defraud the plaintiff and other prospective allottees. It was further stated by the plaintiff that the defendant No. 3 is brother of one Kaniram, Contractor, who is very close to the said Mahaveer Prasad and so he got an anti-dated application placed on record for allotment of quarry No. 377, that at the time of the transfer of Shri Gupta, Mining Engineer, Jodhpur because of favouritism without any proposed allotment, rent-cum-royalty in respect of quarry No. 377 was got deposited illegally and without jurisdiction. In paras 3, 4, 5 and 6 of the plaint, allegations against Shri Mahaveer Prasad, Clerk of the Mining Department, Jodhpur have been made. In para 11, it has been stated that after the transfer of the Mining Engineer Mr. Gupta, facts for cancellation of the proceedings relating to the allotment of quarry No. 377 were placed before the then Mining Engineer, who held that the allotment has not been rightly made and on January 20, 1969 proposed the name of defendant No. 3 for allotment of the quarry in question and invited objections in this regard. The plaintiff submitted his objections on February 11, 1969 on the ground that he had already submitted an application for allotment prior to defendant No. 3, and thereafter proceedings taken place in favour of defendant No. 3 were illegal and, therefore, the allotment made in favour of defendant No. 3 should be cancelled and the quarry should be allotted to the plaintiff. These objections were not heard till the institution of the suit. The plaintiff has further stated that he orally and in writing reminded about the disposal of his objections and also on December 1, 1969 had sent a letter by registered post mentioning that his objections may be decided early but the objections were neither heard nor decided nor any information in this regard was sent to him.

It has been alleged by the plaintiff that without deciding his objections if the allotment has been made to defendant No. 3 or it has been renewed or rent-cum-royalty has been deposited or any other proceeding has been taken by defendant No. 3, they are all without jurisdiction and are acts of favourtism to him. In paras 14 to 18, the allegations have been made that the plaintiff has submitted application for allotment of quarry No. 377 prior to defendant No. 3 and as defendant No. 3 had applied for allotment subsequently, the plaintiff is entitled to get this quarry allotted. Thus, from the allegations made in paras 3, 4, 5, 6, to 13 and 14 to 18, it is clear that the case of the plaintiff is that the acts of the Mining Engineer (defendant No. 2) are ultra vires and he has acted malafide, illegally and in utter disregard of the Rajasthan Minor Mineral Concession Rules, 1959 ('the Rules' hereafter). It was, therefore, prayed that allotment, renewal, depositing of rent-cum-royalty and all proceedings in respect of quarry No. 377 situate in Kali Beri Area, Jodhpur in favour of defendant No. 3 may be declared illegal, without jurisdiction and acts of favouritism, that permanent prohibitory injunction may be issued against defendants Nos. 1 and 2 restraining them not to renew lease and agreement in respect of quarry No. 377 in dispute in favour of defendant No. 3 or his transferee. It was also prayed that defendant No. 3 may also be restrained by means of prohibitory injunction from carrying out any mining operations or work it by himself or any other persons in this quarry.

Defendants Nos. 1 and 2 filed a joint written statement on January 28, 1972 contesting the suit. It was, inquiry stated by them that no application for allotment of the quarry was submitted by the plaintiff in the office of the Mining Engineer and that after the receipt of the order of the State Government dated July 28, 1965, all the previous applications were filed and as such even if there were any applications of the plaintiff, he does not get any right. These two defendants, however, did not dispute that suit is not triable by a civil court, though it was stated that as the plaintiff did not pursue the remedies of appeal and revision under the Rules and defendant No. 3 has started working on the quarry, he is not entitled for declaration and grant of injunction as prayed for by him.

Defendant No. 3 filed his written statement on January 28,1972. In this written statement he resisted the plaintiff's suit. Subsequently he also filed an amended written statement on December 22, 1975 after obtaining the permission from the trial court.

On the application of the defendants Nos. 1 and 2 on December 9, 1975, new issue No. 6 was framed and existing issue No. 6 was re-numbered as No. 7. Issue No. 6 so framed when translated into English, reads as under : "Whether the suit cannot be heard by this court (Civil Court) as the plaintiff did not prefer any appeal or revision against the allotment in favour of defendant No. 3 under the Rajasthan Minor Mineral Concession Rules ?" Arguments on this issue were heard by the learned Additional Civil Judge on January 12, 1977. The learned Additional Civil Judge, by his order dated January 24, 1977 decided issue No. 6 against the defendants and in favour of the plaintiff, whereby holding that the jurisdiction of the civil court to hear the suit is not barred. Being aggrieved by the aforesaid order, defendant No. 3 has come up in revision to this Court.

(3.)MR. H.M. Parakh, learned counsel for the petitioner has argued that the jurisdiction of the civil court to entertain and decide the present suit is barred. He urged that the plaintiff has no right to exploit the minerals in quarry No. 377 as the minerals belong to the State, that the right has been given by the Rules (statute) and remedies have also been provided therein and as the Rules are complete code by themselves, jurisdiction of ordinary civil court cannot be invoked. Learned counsel further submitted that if the plaintiff was aggrieved by allotment of quarry No. 377 to defendant No. 3, he should have pursued his remedy, provided by way of appeal and revision under rr. 43 and 60 of the Rules respectively and since he has failed to avail of the remedies, provided under the Rules, he cannot invoke the jurisdiction of the civil court. In support of his arguments be placed reliance on Hevilee vs. London "Express" Newspaper Limited (1), Secretary of State vs. Mask & Co. (2), V. Ped-darangaswami vs. The State of Madras (3), The Premier Automobiles Ltd. vs. K. S. Wadke (4) and Bata Shoe Co. Ltd. vs. Jabalpur Corporation (5).
Mr. Bhandari, learned counsel for the plaintiff-non-petitioner supported the order under revision. He also contended that issue No. 6 was treated by the trial court as a preliminary issue despite requests by the plaintiff that it should be decided along with the other issues. He urged that for the correct decision of the suit, a finding whether the plaintiff had submitted an application for allotment of quarry No. 377 on January 28,1967 or not, is necessary because the basic averment of the plaintiff is that his application has not been considered, and according to defendant No. 2 no such application was received. He further submitted that without passing any order for grant of rent-cum-royalty lease to defendant No. 3 the quarry has been given to him, and in this respect allegations of malafide, undue favouritism, breach of principles of natural justice and violation of the Rules have been made. Learned counsel went on to argue that r. 43 has no application inasmuch as it provides for appeal against refusal grant and it does not apply to order refusing to grant and no order of refusal has been placed on record and so. r. 43 could not be availed of. He also urged that there can not be any refusal because according to the Mining Engineer, no application of the plaintiff dated January 28, 1967 was received prior to defendant No. 3's application. He submitted that the order dated April 17,1968 was not produced before the trial court until the decision of issue No. 6. The order was produced as late as on April 27, 1977, though the suit was instituted on July 28, 1971. He made reference to Rules 44 which reads as under : "Form of appeal and fees.-(l) An appeal under rule 43 shall be in the form of memorandum of appeal in duplicate with numberred paragraph stating concisely and precisely the ground of objection. (2) The memorandum of appeal shall be accompanied by court-fee of Rs. 25 in case of mining lease or royalty collection contract and Rs. 10 in case of rent-cum-royalty leases." Mr. Bhandari placed reliance on Wazira vs. Shamulal (6), Rangasingh vs. Gurbux Singh (7), Firm of I. S. Chetty & Sons vs. State of Andhra Pradesh (8), Provincial Govt., Madras vs. J. S. Basappa (9), Desika Charyulu vs. State of A. P. (10), Ram Swarup vs. Shikarchand (11), Musamia Imam vs. Rabari Govindabhai (12) and K.C. Dora vs. G. Annamanaidu (13). He further contended that jurisdiction of a civil court can only be barred by an Act of the Legislature and the Rules cannot take away its jurisdiction. In support of his contention he invited my attention to Firm Adarsh Industrial Corporation vs. Market Committee Kerala (14).

I have given my most anxious thoughtful consideration to the arguments advanced by the learned counsel for the parties and have also considered the cases cited by them.

A foremost and perhaps only point, which is undoubtedly vexed one, which falls for my determination is whether on the facts and circumstances of the case, the civil court had/has jurisdiction to entertain the suit for declaration and permanent injunction filed by the plaintiff-non-petitioner against the defendants. In other words, whether in view of the Rules, the jurisdiction of the civil court to take cognizance of the suit is barred under section 9 C. P. C. Section 9 of Civil Procedure Code, reads as under : "9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature exception suits of which their cognizance is either expressly or impliedly barred. Explanation I. A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II. For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place." It may be stated that original Explanation has been numbered as No. I and Explanation No. II was added by the Code of Civil Procedure (Amendment) Act, 1976.