1. By this revision application under section 115 of the Code of Civil Procedure, 1908 ("the Code" for short), the petitioner has challenged the order dated 12.5.2009 passed by the Mamlatdar, Mandvi under the Mamlatdar Courts Act ("the Act" for short) as well as the confirming order dated 21.7.2010 passed by the Deputy Collector, Bhuj in revision application no.2 of 2009, preferred by the petitioner.
2. The Mamlatdar, by his order dated 12.5.2009, allowed the suit preferred by the respondent and ordered the petitioner to restore the use of way through his land and further restrained the petitioner from preventing the respondent in using the way for the purpose of taking agricultural equipments/instruments by the respondent.
3. The above order passed by the Mamlatdar was challenged by the petitioner before the Deputy Collector by filing the revision application under section 23 of the Act.
4. Before the Deputy Collector, no objection as regards limitation for filing the suit under the Act was raised by the petitioner. The Deputy Collector confirmed the order of the Mamlatdar on the merits of the case and rejected the revision application.
5. I have heard the learned advocates for the parties. The main and the only argument advanced by learned advocate Mr. Dhaval Vyas for the petitioner is that the suit before the Mamlatdar was clearly time barred and, therefore, such suit could not have been entertained and no order for restoration of the use of the way or injunction against the petitioner could have been passed by the Mamlatdar. Mr. Vyas submitted that the record of the suit is called for by this Court where-from it clearly appears that when the suit was registered, the same was beyond the period of six months from the date of cause of action. Mr. Vyas submitted that the Act clearly mandates filing of the suit within six months from the date of cause of action and if not so filed, the suit shall be required to be rejected. Mr. Vyas submitted that the Mamlatdar has no jurisdiction under the Act to treat such time barred suit within the time limit unless the Mamlatdar follows the provisions of section 7,8 and 9 of the Act. Mr. Vyas submitted that since the mandatory provisions of section 7,8 and 9 of the Act were not followed by the Mamlatdar, any order passed by the Mamlatdar in such suit could be said to be without jurisdiction. Mr. Vyas submitted that since the suit was time barred, the Deputy Collector ought to have set aside the order of Mamlatdar. The Deputy Collector has, thus, failed to exercise the jurisdiction vested with him. Mr. Vyas, thus, urged to allow this petition.
6. As against the above arguments, learned advocate Mr. M.B. Gohil appearing for the respondent submitted that the record clearly reveals that on 27.9.2007, the Mamlatdar had ordered for opening the use of the way closed by the petitioner on the basis of the application made by the respondent with other farmers. Mr. Gohil submitted that the way was then opened, but subsequently, it was again closed, and therefore the respondent made an application dated 22.5.2008 before the Mamlatdar and waited for the Mamlatdar to take action. Mr. Gohil submitted that on such application, the Mamlatdar was mandatorily required to ascertain the desire of the respondent to treat such application as plaint. Mr. Gohil submitted that endorsement below the application by the Mamlatdar was to treat the application presented under the Act. The plaint presented then on 28.7.2008 was treated as filed from 22.5.2008. Mr. Gohil submitted that on the basis of the evidence before the Mamlatdar, the Mamlatdar has allowed the suit which came to be confirmed by the Deputy Collector in revision application preferred by the petitioner. Mr. Gohil submitted that before the Deputy Collector, no objection as regards limitation against the suit was raised by the petitioner and, therefore, the petitioner is not entitled to raise such issue before this court. Mr. Gohil submitted that since it was within the domain and jurisdiction of the Mamlatdar to treat the application dated 22.5.2008 as the plaint of the suit, and the Mamlatdar having exercised such powers, this court may not interfere with the impugned orders in exercise of revisional jurisdiction. Mr. Gohil, thus, urged to dismiss this revision application.
7. Having heard the learned advocates for the parties, it appears that earlier, the respondent and 8 other farmers had addressed an application dated 6.7.2007 at annexure A bringing to the notice of the Mamlatdar the closure of the way by the petitioner and requested to make the way open. The Mamlatdar then vide communication dated 27.9.2007 asked the petitioner to remove the obstruction from the way failing which the necessary action was stated to be taken.
8. It appears that pursuant to the said communication, the petitioner opened the way but as per the say of the respondent, it was again closed by the petitioner which led the respondent to make an application Annexure B to the Mamlatdar. Below the said application, there appears to be the endorsement made by the Mamlatdar dated 23.5.2008 for placing it under the Mamlatdar Courts Act.
9. It is required to be noted that such application was not presented by the respondent through any advocate but sent by him personally to the Mamlatdar.
10. It appears that since nothing was done on the said application for a period of two months, the respondent then filed the suit under section 5 of the Act by presenting plaint dated 22.7.2008 for making open the way closed by the respondent and for injunction. The plaint on the last page bears the date 28.7.2008 below the signature of the advocate of the respondent.
11. It appears from the proceeding/rojkam drawn of the case before the Mamlatdar that the plaint presented on the said date was considered as making of another application by the respondent (date of repeat application). Such date does not appear to be the date of registration of the suit. It appears that the case of the respondent was already registered as Mamlatdar Court Act No.2 of 2008 on the basis of the earlier application dated 22.5.2008 sent by the respondent.
12. Therefore, it is not possible to agree with the submission of the learned Advocate Mr. Vyas that the suit was, for the first time, registered on 28.7.2008.
13. Learned Advocate Mr. Vyas, however, submitted that since the mandatory procedure as required under section 8 of the Act was not followed by the Mamlatdar, the suit filed by the respondent could be said to have commenced only from the C/CRA/135/2010 CAV JUDGMENT date of presentation of the plaint by the respondent on 22.7.2008, as contemplated by section 7 of the Act. Mr. Vyas submitted that if the application dated 25.5.2008 was to be treated as plaint, the procedure as per section 9 of the Act was mandatorily required to be followed, which having not been followed, the suit could be said to have been filed by the respondent for the first time when the respondent presented the plaint on 28.7.2008 containing all particulars as required by section 7 of the Act and, on the said date, the suit was time barred as the same was filed beyond six months of the cause of action.
14. Section 7, 8 and 9 of the Act read as under:
"7. 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 following particulars "
(a) the name, age, religion, caste, profession and place of abode of the plaintiff;
(b) the name, age, religion, caste, profession and place of abode of the defendant (bb) the nature and situation of the impediment erected and the situation of the lands which are adjacent to each other and the nature of the relief sought;]
(c) the nature and situation of the property of which possession for use is sought or the nature of the injunction to be granted, as the case may be.
(d) the date on which the cause of action arose.
(e) the circumstances out of which the cause of action arose ; and
(f) a list of the plaintiff's documents, if any, and of big witnesses, if any, showing what evidence k requited from each witness, and whether such witnesses - are to be summoned to attend or whether the plaintiff wilt produce them on the day and at the place to be fixed under Section 14.
8. Where a petition not in the form of a plaint is presented to the Mamlatdar and the subject matter thereof appears to fall within the scope of Section 5, the Mamlatdar shall explain to the person presenting the petition the nature of the relief's afforded by this Act and shall inquire whether the petitioner desires to obtain relief thereby. If the petitioner expresses a desire so to obtain relief, the Mamlatdar shall endorse the desire on the petition which shall thereupon be deemed to be a plaint presented under Section 7.
9. Where the plaint does not contain the particulars specified in Section7 or is unnecessarily prolix, the Mamlatdar shall forthwith examine the plaintiff upon oath and ascertain from him such of the particulars specified in Section as are not clearly and correctly stated in the plaint and shall reduce the explanation to writing in the form of an endorsement on or annexure to the plaint which shall thereupon Le deemed to be part of the plaint. Where the plaintiff required time to obtain any of the particulars specified in Section 7, the Mamlatdar shall g-rant him such time as may under all the circumstances appear reasonable."
15. Section 7 provides that all the suits under the Act shall be commenced by the plaint to be presented to the Mamlatdar in open Court by the plaintiff containing the particulars mentioned in the section. However, section 8 provides that where the petition not in the form of plaint is presented to the Mamlatdar and the subject matter thereof appears to fall within the scope of section 5 of the Act, the Mamlatdar is mandatorily required to explain to the person presenting the petition the nature of reliefs afforded by the Act and shall inquire whether the petitioner desires to obtain relief thereby. If the petitioner expresses a desire to obtain relief, the Mamlatdar shall endorse the desire on the petition which shall thereupon be deemed to be a plaint presented under section 7.
16. Such provision is made in the Act with a view to see that when a person brings the petition for the subject matter falling within the scope of section 5 of the Act before the Mamlatdar but not in the form of the plaint is to be made aware about the reliefs available under the Act to him so that he can express his desire to obtain such relief.
17. The object behind making such provision is that the purpose for which the Act is enacted may not be frustrated on account of the lack of knowledge on the part of a person who is generally from the village side and not aware about his rights under the Act. Since the Act is benevolent legislation, legislature has fastened duty on the Mamlatdar to be mandatorily performed as required by section 8 of the Act when person comes with petition not in the form of plaint. The opposite party against whom the petition is filed for the subject matter falling within the scope of section 5 of the Act cannot be allowed to take advantage of the failure of Mamlatdar to perform his mandatory duty.
18. However, in the facts of the case, such lapse on the part of the Mamlatdar is recouped by treating the application dated 22.5.2008 with plaint presented by the respondent as the commencement of suit. The Mamlatdar has in fact in his order in clear terms stated that the application dated 22.5.2008 sent by the respondent was treated as plaint and action on such application was taken under the Act. Since the plaint filed by the respondent contained all particulars as required of section 7 of the Act, the procedure as required by section 8 and 9 of the Act could be said to have been followed on the application dated 22.5.2008 by the Mamladar. No further procedure as required under section 8 and 9 was required tobe followed and for all purposes, the application dated 22.5.2008 with plaint containing requisite particulars for the suit was treated as commencement of the suit which was very much within the prescribed time limit from the cause of action.
19. From the order of the Deputy Collector passed in revision application preferred by the petitioner, it appears that no grievance was raised by the petitioner as regards above said procedure followed by the Mamlatdar nor even any serious objection as regards limitation against the suit was raised.
20. The Court finds that the Mamlatdar as well as the Deputy Collector both have concurrently held against the petitioner on the basis of the material available on record. No grievance as regards view taken on merits of the case is raised except the point of limitation in filing the suit.
21. In above such view of the matter, when this Court finds that there is no substance in the objection as regards limitation against the suit filed by the respondent under the Act, no interference is called for in the impugned orders in exercise of the revisional powers of this Court under section 115 of the Code.
22. In the case of Vora Ismailbhai Sulemanbhai v. Patel Dahyabhai Bapujibhai reported in 1972 Vol. XIII page 762, in the context of the proceedings initiated as per section 71 and 72 of the Bombay Tenancy and Agricultural Lands Act, 1948, the Court examined section 7 to 11 of the Act and observed in para 4 as under:
"4. Relevant portion of sec.71 of the Tenancy Act reads as under:
'71. Save as expressly provided by or under this Act, all inquiries and other proceedings before the Mamladar or Tribunal shall be commenced by an application which shall contain the following particulars.....' Section 72 provides for conducting an inquiry or other proceedings commenced upon the presentation of an application under sec. 71. It reads as under:
'72. In all inquiries and proceedings commenced on the presentation of applications under Section 71 the Mamlatdar or the Tribunal shall exercise the same powers as the Mamlatdar's Court under the Mamlatdar's Courts Act, 1906 and shall save as provided in Section 29 follow the provisions of the said Act, as if the Mamlatdar or the Tribunal were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under Section 7 of the said Act. In regard to matters which are not provided for in the said Act, the Mamlatdar or the Tribunal shall follow the procedure as may be prescribed by the State Government.
Every decision of the Mamlatdar or the Tribunal shall be recorded in the form of an order which shall state reasons for such decision.' Section 7 of the Mamlatdars' Courts Act, 1906 provides that all suits under the said 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 particulars therein prescribed. Sec. 8 provides that where a petition of a plaintiff approaching the court for relief under sec.5 of the Mamlatdars' Courts Act is presented to the Mamlatdar, and the grievance made therein falls within the scope of sec.5 but the petition is not in the proper form, a duty is cast upon the Mamlatdar to explain to the person presenting the petition the nature of the reliefs afforded by the said Act and to inquire whether the petitioner desires to obtain some such reliefs and if the petitioner expresses a desire to that effect, the Mamlatdar has to endorse the desire on the petition which shall thereupon be deemed to be a plaint presented under sec. 7. Sec. 9 provides that if the plaint presented to the Mamlatdar under sec. 7 does not contain the particulars specified in sec. 7 or is unnecessarily prolix. the Mamlatdar must forthwith examine the plaintiff upon oath and ascertain from him such of the particulars specified in sec.7 as are not clearly and correctly stated in the plaint and has to reduce the examination to writing in the form of an endorsement on or annexure to the plaint which shall thereupon be deemed tobe part of the plaint. If the plaintiff is unable to give all the particulars there and then prays for adjournment, the same has to be granted for such period as may under all the circumstances appear reasonable. Once a plaint is presented and it is found to conform with the requirements of sec. 7, the Mamlatdar must call upon the plaintiff to subscribe and verify the plaint in his presence in the open court in the manner set out in sub-sec.(1) of sec.11. Sec.11 casts a duty upon the Mamlatdar to endorse the plaint to the effect that it was duly subscribed and verified. Sec.12 enables the Mamlatdar to reject the plaint in one or other circumstances mentioned in that section. Sec.3 (b) defines the words "plaintiff" and "defendant" which provides that the words 'plaintiff' and 'defendant' shall include (I) a pleader duly appointed to act on behalf of such plaintiff or defendant and (ii) recognized agent of a plaintiff or defendant as defined in sec. 37 of the Code of Civil Procedure. The provision corresponding to sec. 37 of the Code of Civil Procedure, 1908 is O.III R.2."
23. Similarly in the later decision in the case of Desaibhai Shanabhai Patel and Anr. Versus Bhulabhai Prabhudas Patel and Ors., reported in 1996 (1) GLH 170, this Court has observed in para 8,9 and 10 as under:
"8. A bare perusal of Section 72 of the Tenancy Act would go to show that an application under Section 71 of the Tenancy Act is treated as a plaint presented under Section 7 of the M.C. Act. In that view of the matter, the First Authority will have to start the process of that application from the stage of Section 7 of the M.C. Act. The period of limitation is prescribed in the M.C. Act in Section 5(3) thereof. It obviously precedes Section 7 thereof. In that view of the matter, Section 5 thereof will not be applicable to an application under Section 71 of the Tenancy Act by virtue of Section 72 thereof.
9. The same result is bound to ensue from examination of the question from a different angle. The particulars of an application under Section 70 of the Tenancy Act are set out in Section 71 thereof. The particulars of a plaint under the M.C.
Act are set out in Section 7 thereof. Clause (d) thereof is material. It requires the litigant inter alia to state the date on which the cause of action arose. This would definitely be relevant in view of the provisions contained in Section 5(3) thereof. It has been provided therein that no suit shall be entertained by a Mamlatdar's Court unless it is brought within six months from the date on which the cause of action arose. In that context, the litigant is required to mention in his plaint under Section 7 of the M.C. Act that date on which the cause of action arose for instituting the suit. No such provision is found to have been made in Section 71 of the Tenancy Act. It is obvious that no period of limitation is prescribed for making an application under Section 70 of the Act, and that is why the litigant making an application under Section 70 thereof is not required to mention the date on which the cause of action arose in his application as provided in Section 71 thereof. It is true that Clause (c) of Section 71 thereof requires the litigant to state the circumstances out of which the cause of action arose. It cannot be gainsaid that the circumstances out of which the cause of action arose would be different from the date on which the cause of action arose. What is contemplated by the expression "circumstances out of which the cause of action arose" would be, to say succinctly, what occasioned the institution of the proceeding or why the proceeding in question was required to be instituted. The expression 'the date on which the cause of action arose' would constitute the time when the occasion to institute the proceeding arose and not the why or what of it. The aforesaid two expressions obviously connote two different concepts. They cannot be construed as connoting the same thing as canvassed by Shri Desai for the petitioners. Even the Legislature has recognized two different concepts connoted by the aforesaid two expressions. Clause (c) of Section 71 of the Tenancy Act is found engrafted in Clause (e) of Section 7 of the M.C. Act. If the circumstances out of which the cause of action arose connoted the time of its accrual or arising, the Legislature would not have included in Clause (d) thereof 'the date on which the cause of action arose'. Two separate provisions made in Clauses (d) and (e) in Section 7 of the M.C. Act would buttress support to the aforesaid view taken by me to the effect that Section 5(3) of the M.C. Act is outside the purview of Section 72 of the Tenancy Act.
10. It is true that under Section 12 of the M.C. Act the First Authority is required inter alia to reject the plaint if it appears on the face of the plaint that the cause of action arose more than six months before the plaint was presented. That provision certainly occurs after Section 7 thereof. That by itself would not make Section 5 thereof applicable to a proceeding under Section 70 read with Section 71 of the Tenancy Act by virtue of Section 72 thereof. The reason therefor is quite simple. As pointed hereinabove, Clause (d) of Section 7 requires the litigant to state in his plaint the date on which the cause of action arose. As pointed out hereinabove, that requirement is in the light of the provisions contained in Section 5(3) thereof. Section 12(c)(ii) is in the context of the averment made in the plaint in the light of Section 7(d) read with Section 5(3) thereof. As pointed out hereinabove, the litigant is not required to state in his application under Section 70 read with Section 71 of the Tenancy Act to state the date on which the cause of action arose for making the application or for instituting the proceeding in question. In that view of the matter, the First Authority would not be required to reject the applicant on under Section 70 read with Section 71 of the Tenancy Act for not stating the date on which the cause of action arose. If the application under Section 70 read with Section 71 of the Tenancy Act could not be rejected for want of such statement, no question would at all arise to reject the application on the ground that the cause of action arose more than six months before the plaint was presented. To permit the First Authority to reject an application under Section 70 read with Section 71 of the Tenancy Act on the ground that it was made six months after the accrual of the cause of action arose would tantamount to reading into the Tenancy Act a provision prescribing the period of Limitation of six months for making such application under Section 70 thereof. No provision prescribing any period of limitation for an application under Section 70 of the Tenancy Act is found made therein. In that view of the matter. Section 12 of the M.C. Act cannot be read so as to prescribe any period of limitation for an application under Section 70 of the Tenancy Act. "
24. The above two decisions relied on by Mr. Vyas are on the procedure and limitation for the suits under the Act. This Court when finds that in the facts of the case, the procedure as per section 7 to 9 of the Act could be said to have been complied with and the suit of the respondent was within the prescribed time limit, the revision application must fail.
25. For the reasons stated above, the revision application is dismissed. Rule is discharged. Interim relief, if any, stands vacated forthwith. RandP to be sent back forthwith.