S.B. Deshmukh, J.
1. Heard learned Counsel for the respective parties.
2. This appeal from order is filed by appellants under Order XLIII Rule 1(u) of the Code of Civil Procedure ('CPC'). Following is the substantial question of law, framed by this Court by earlier order passed on 16.9.2008. ' Whether seeking a declaration that, an ownership certificate issued in favour of the defendant is not binding on the plaintiff is not founded on the admission of tenancy of the defendant ?'
3. Appellant No. 1 in this appeal was defendant No. 1 in Special Civil Suit No. 11 of 1974 filed by respondent No. 1 in this appeal. Parties, hereinafter, are referred to their original status in the suit, for the sake of convenience.
4. Plaintiff has filed the suit for declaration that the certificate issued by the Tenancy Court on 18.6.1963 regarding land S. No. 7 in favour of Kashim is null and void and also sought possession of the suit property. The trial court after hearing the parties and considering the material brought on record, dismissed the suit leaving the parties to bear their own costs on 31.12.1980. Judgement and decree of the trial court was challenged by aggrieved plaintiff by filing RCA No. 158 of 1983 in the court of learned District Judge, Latur. The learned II Additional District Judge, after hearing the parties, allowed the appeal filed by plaintiff with costs. Decree of dismissal of the suit recorded by the trial court came to be quashed and set aside. The suit was remanded back to the lower court with a direction to refer issue Nos.13 and 14 to the competent authority i.e. Agricultural Lands Tribunal ('tribunal') and after receipt of the decision on the issues from the competent authorities, the learned Civil Judge (S.D.) was directed to decide the suit as per the provisions of law. Thus judgment and decree is passed by the first appellate court on 5.8.1988. Against the said judgment and decree, present appeal has been filed.
5. In view of the judgement of the Supreme Court in the matter of Narayanan v. Kumarand Ors. : (2004)4SCC26 , the appeal from order filed under Order XLIII Rule 1(u) of CPC is to be considered within the parameters of Section 100 of CPC. By the earlier order passed on 16.9.2008, substantial question of law, after hearing the parties, had been formulated, which has been quoted hereinabove.
6. The description of the suit property is not in dispute. It is also not in dispute that defendant No. 1 sold out 5 acres and 5 gunthas out of the suit property to defendant No. 2. Defendant No. 2, sold out this portion to one Shri Rajshekhar. Defendant No. 1 sold out remaining portion of 5 acres and 5 gunthas of land to appellant No. 2 Ramkrishna, who has been added as appellant No. 2 in this appeal, with the leave of this Court. It is also an admitted fact that Rajshekhar was not party in the trial court as well as first appellate court. In this appeal, initially, said Rajshekhar was also not party.
7. Facts of the case, stated by the plaintiff, may be summarised as under:
Plaintiff himself and his brother Mohd. Ismail were co-owners of the land S. No. 7, admeasuring 22 acres and 10 gunthas, situated at village Ausa, District Latur. The partition amongst plaintiff and his brother had been effected fifteen years prior to the filing of the suit. Southern side half portion of the land S. No. 7 was allotted to plaintiff and Northern half portion of the said Survey Number was allotted to his brother. The plaintiff has thus acquired ownership and possession of the land allotted to his share. Plaintiff was in need of money for medical treatment. On 17.9.1959, he executed an agreement of sale regarding his southern half portion of land S. No. 7 in favour of defendant No. 1, for the consideration of Rs. 15,000/-. This land is the subject matter of dispute ('suit land'). Plaintiff has received Rs. 1500/-as earnest money. Indisputably he inducted defendant No. 1 in possession of the suit property on the basis of said agreement of sale. He also executed an affidavit (halatnama) in favour of defendant No. 1. Sale deed was agreed to be executed after obtaining permission from the competent authority. According to plaintiff, despite the fact of execution of the agreement, agreement for sale dated 17.9.1959, there was no intention of sale of the property between the plaintiff and defendant No. 1. Another document, therefore, came to be executed amongst them on the same day i.e. 17.9.1959. It has been mentioned in this document that defendant No. 1 would return the amount of Rs. 1500/- on/or before 31.3.1962 to plaintiff and plaintiff, in turn, would return Halatnama to defendant No. 1. However, parties have further extended period of repayment upto 28.3.1961. Plaintiff repaid the amount of Rs. 1,000/-to defendant No. 1 and in lieu of remaining amount of Rs.500/- mortgaged the suit land to defendant No. 1 for a period of two years.
Amount of Rs.500/- was settled amongst the parties and it was agreed that the said amount was to be apropriated towards the income for three years from the suit land and defendant No. 1 passed a receipt of the said amount. According to plaintiff, since 28.3.1981, defendant No. 1 became mortgagor and was in possession of the suit land.
After this transaction, plaintiff left for Sangali - for medical treatment. Defendant took dis-advantage of the plaintiffs absence and initiated false proceedings before the Tribunal at Ausa, seeking ownership certificate under Section 38-A of the Hyderabad Tenancy and Agricultural Lands Act, 1950 ('Act of 1950'). In this proceeding the plaintiff was not party and was not served with the notice. Despite this fact, the tribunal issued certificate under Section 38-A of the Act of 1950 in favour of defendant No. 1. Plaintiff has alleged that issuance of said certificate is against the provisions of the Act of 1950. The certificate is void and not binding on plaintiff. The plaintiff prayed that possession of defendant No. 1 over the suit land till 27.3.1964 was as a mortgagee and thereafter, he has no right to remain in possession of the said land.
Possession of defendant No. 1, according to plaintiff is illegal and unauthorised. Alienation of the suit property by defendant No. 1 to defendant No. 2 is illegal and not binding on the plaintiff. Possession of defendants 1 and 2, plaintiff claims, is illegal and therefore, he took recourse by this suit as noted above.
8. The trial court considering the rival pleadings of the parties and material on record, settled about twenty issues. Amongst them, some issues are important. I would therefore, refer these important issues and findings recorded thereon by the trial court. Issue No. 1 framed by the trial court was in respect of alleged agreement of sale dated 17.9.1959 for Rs. 15000/- and payment of earnest money to the tune of Rs. 1500/- from defendant No. 1. Finding recorded on this issue No. 1 is in negative. Whether defendant No. 1 was put in to actual and physical possession of the suit land on the date of agreement towards part performance of the contract for sale was issue No. 2. The finding is in negative. Alleged payment by plaintiff to defendant No. 1 on 28.3.1961 to the tune of Rs. 1,000/- was issue No. 5. Finding is in negative. Issue No. 13 was in respect of plea set up by defendant No. 1 that plaintiff created a lease over the land in his favour in the year 1957 for the period of ten years. The finding recorded is in affirmative i.e. in favour of the defendant. Issue No. 14 was in respect of alleged plea set up by defendant No. 1 that he was the tenant over the suit land from 1957 uptil 28.3.1961. Finding is in affirmative. On these two issues, the trial court has recorded a finding, in favour of the defendant No. 1.
On appeal, under Section 96 of CPC by defendant No. 1, the first appellate court framed about six points for determination in paragraph No. 12 of its judgment. Point No. 1 framed by the first appellate court was in respect of issue of tenancy framed by the trial court is redundant or irrelevant. Finding recorded on this point is in negative. Whether the civil court was competent to record the finding on the issue of tenancy without referring the same to Tenancy Court was the point No. 2 framed by the appellate Court and finding recorded is in negative i.e. in favour of plaintiff. Reference of the issue of tenancy to the competent authority was point No. 3 framed by the first appellate court and answer is in affirmative. The first appellate court, after hearing the parties, as noted above, remanded the case back to the lower court with further direction to refer issue Nos.13 and 14 to competent Authority and on receipt of the findings from competent authority to proceed for hearing of the suit.
9. Learned Counsel for appellant submitted that the judgment of the first appellate court is perverse and requires to be quashed and set aside. He has invited my attention to the findings recorded by the trial court while dismissing the suit. According to him, well reasoned judgment of the trial court has been turned down by the first appellate court and remand is ordered. Per contra, Shri Thigale, learned Advocate for original plaintiff submitted that the judgment of the first appellate court is proper, legal and is in consonance with the provisions of law. He relied upon the various judicial pronouncements, which are as follows:.
First judgement is of learned Single Bench of this Court in the case of Sheshrao v. Bhujangrao 1992 (2) Mh.L.R.673
Learned Counsel Shri Thigale has made available copy of the notes of High Court Rulings Vol. 20 1972 Tenancy Law Reporter. Said copy is marked Exhibit 'X' and taken on record. It is very difficult to consider this Exhibit 'X'. Firstly, this is not a judgment of this Court or the Supreme Court. From this Exhibit 'X', it is difficult to understand as to whether it is a judgment of the Supreme Court or the High Court. From title of Exhibit 'X' it appears that 'Notes on High Court Rulings.' Internal page No. 4 of Exhibit 'X' makes a reference of Special Civil Application No. 2978 of 1967 dated 23.9.1970. Names of the parties reflect from this Exhibit 'X' seems to be Damu Shivram v. Parvant Gangaram. Name of learned Bench mentioned in this Exhibit 'X' is Shri Bhasme, J. The judgment ordinarily makes a reference to the pleadings of the parties, facts supported by the evidence, points which are urged by the learned Counsel appearing before the Court, findings of the court and decision on the matter. From Exhibit'X' it is very difficult to understand that as to in which matter and as to whether the judgment is delivered by the learned Single Bench of this Court. It is not possible to rely upon such notes of High Court Rulings.
10. Learned Counsel for the parties have addressed the Court on two sections of the Act of 1950. One of them is Section 38-A of the Act of 1950. Marginal note of Section 38-A reads as under:
Procedure when reasonable price is agreed to between landlord and the protected tenant or as the case may be ordinary tenant.
It is provided under Section 38-A, if there is consensus amongst the protected tenant or as the case may be ordinary tenant and the landholder to sell his interest i.e. land holders interest to protected tenant or as the case may be ordinary tenant and reasonable price payable therefor by the tenant (protected or ordinary) is agreed to, in that eventuality provisions of Sub-section (7) of Section 38 shall not apply to such sale and either the landholder or the protected tenant or as the case may be ordinary tenant or both jointly, may apply to the Tribunal and thereupon all the provisions of Sub-sections (4), (5), (6), (6A), (8) and (9) of that section shall apply mutatis mutandis to such application. Section 31-A also has proviso laying down that the reasonable price so agreed to by the parties themselves shall be deemed to be reasonable price, determined by the Tribunal for the purposes of the said subsection. Second proviso to this Section 38-A is also there but for the present, we have no concern with the said proviso.
Learned Counsel for the appellants has invited my attention to Exhibit 58 i.e. joint application filed by the plaintiff and defendant No. 1 before the Tribunal dated 18.6.1963. In this joint application, statement is made ' That, Shri Kasim s/o Fareed resident of Ausa (defendant No. 1) ordinary tenant is entitled under Section 38-A of the Act of 1950 to purchase the land. It is further averred that reasonable price payable by Kasim s/o Fareed (defendant No. 1) (ordinary tenant) to the land owner Naseer Mohammad (plaintiff) was settled at Rs.8,000/- by mutual agreement and Shri Kasim (defendant No. 1) ordinary tenant has paid the whole amount to the land owner Naser (plaintiff). After this averments, a prayer is made, 'We, therefore, request you to kindly take action in accordance with Section 38-A of the Act of 1950 and issue a certificate to Kashim - defendant No. 1.' Thereafter, documents which were annexed with this joint application have been enlisted. This joint application was registered with the competent authority i.e. Tribunal. Exhibit 58 is the certified copy which shows files No. 74/C-III LAW/ CS /CR/56 and file No. 70/C-III-LAW/WS-56. There is an endorsement that copy is issued from the Collector Office, Osmanabad. Exhibit 59 is the certified copy of the declaration given by the
Tribunal under Section 38(6) of the Act of 1950. In this background also a reference is made to Rs.8,000/- allegedly agreed by the parties for sale of the suit property between plaintiff and defendant No. 1. Description of the suit land is given in this document Exhibit 59. It bears the date 18.6.1963. Exhibit 82 is the copy of Khasara Pahani for the year 1959-60 and affidavit of the ordinary tenant and the owner. The name of the and owner is shown as Naseer (plaintiff) and name of the ordinary tenant is shown as Kasim (defendant No. 1). Names of the parties are mentioned in Urdu script. This exhibit appears to be an affidavit sworn in by plaintiff Naseer. He has made a statement in the said affidavit, 'I have sold out (suit land) for Rs.8,000/- only. I have received the entire amount. If the above tenant is given said certificate under Section 38-AI have no objection. I have got still 10 acres of land even after disposal of the above piece of land.' The last sentence is, 'Statement was read over to him, which he admitted to be correct.'
Exhibit 84 is the affidavit of defendant No. 1 Kasim. This is dated 28.3.1961. In this affidavit, a statement is made by defendant No. 1 that subject matter of the affidavit is southern side 12 acres and 10 gunthas of land out of 22 acres and 10 gunthas from S. No. 7 (suit property). It is further mentioned in this affidavit Exhibit 84 that the suit land is owned by plaintiff, total area of the land S. No. 7 is about 22 acres and 10 gunthas. However, land to the tune of 12 acres and 10 gunthas from the southern side has been cultivated by Kasim (defendant No. 1) as a tenant. It is agreed amongst them that reasonable price of the suit property is to the tune of Rs.8,000/-. Defendant No. 1 accordingly has paid entire amount of Rs.8,000/- to plaintiff. Reference of two mango trees and manner in which parties got share is also made in this affidavit of defendant No. 1. Agreement of sale dated 17.9.1959 is on record at Exhibit 61/A. This agreement seems to have been executed by defendant No. 1 Kashim.
I have also perused Exhibit 62, receipt executed by defendant No. 1 in favour of plaintiff, dated 28.3.1961. I have perused the contents of this receipt Exhibit 62. Notice of plaintiff, addressed to Collector is Exhibit 63. It seems to be notice under Section 80 of CPC to the Collector. At the ends of this notice, it has been informed to the Collector that plaintiff wants to sue the State Government for seeking declaration that the certificate dated 18.6.1963 to be ineffective or for recovery of his possession of land S. No. 7. Request was made for cancellation of said certificate dt.18.6.1963, issued by the Tribunal. Possession was also sought for by this notice. This notice Exhibit 63 is dated 10.4.1973. Exhibit 62 is the notice reply addressed by the Collector, osmanabad to Advocate Shri S.S.Sayeed, Paranda, District Osmanabad. It has been informed to the learned Counsel for plaintiff that the Collector has received notice under Section 80 of CPC dated 10.4.1973. It was communicated by this communication Exhibit 64 that final reply will be sent on receipt of the report from the department concerned and after examination of the case and verification of the record.
I have noticed one more affidavit of plaintiff (Naseer) which is at Exhibit 65. Learned Counsel for the appellant referring to these documents submitted that it is a case of joint application made by the landholder and the ordinary tenant under Section 38-A and accordingly certificate has been issued which is placed on record. Amount of reasonable price to the tune of Rs.8,000/-has been already paid. The appellant, therefore, claims rights under Section 38-A of the Act of 1950 to the suit property.
11. Shri Thigale, learned Advocate for the plaintiff has invited my attention to Section 38 of the Act of 1950. Chapter IV-A of the Act of 1950, refers, 'Rights of protected tenants, ordinary tenants and landholders'. Learned Counsel Shri Thigale relied upon the scheme of Section 38 of the Act of 1950. According to him, Sub-sections (4), (5), (6) and (6A) are relevant and important in the facts and circumstances of the case. Shri Thigale, learned Advocate has submitted that before resorting to Section 38 or Section 38A, status of the person as 'tenant' has to be established in accordance with the provisions of Act of 1950 and by the competent authority thereunder. Unless such status is determined by the competent authority such person would not be in a position to take benefits of Section 38 or Section 38A of the Act of 1950. He has also invited my attention to Section 37A of the Act of 1950.
I have given thoughtful consideration to the submissions of Shri Thigale. I have considered the scheme of Section 38 and Section 38-A of the Act of 1950. Section 38A provides a procedure for issuance of certificate contemplated thereunder. This contingency arises in case reasonable price is agreed between the landholder and tenant (protected or ordinary). It has been provided under Section 38-A that in case of such consensus for reasonable price between the landholder and tenant (protected or ordinary), subsection (7) of Section 38 shall have no application. This Section 38-A further provides that in case of joint application by the landholder or tenant (either protected or ordinary) all the provisions of Sub-sections (4), (5), (6), (6A), (8) and (9) of Section 38 shall apply mutatis mutandis to such application. I have also perused Section 38(4) to (9). Learned Counsel Shri Thigale for plaintiff, relying on Section 38(4) submitted that the Tribunal was under obligation to give notice to applicant i.e. landholder and tenant, either protected or ordinary, and all persons, who appear to the Tribunal, to be interested of the date, time and place for enquiry of such application. Such application is for determination of the reasonable price of the landholders interest in the land. It is true that under Section 38(4) to (9), detail scheme is provided for determination of the reasonable price. Determination of the amount of encumbrances, payment of amount and/or payment thereof, ultimately would be paid to landholder in lieu of his interest in the land i.e. suit property. However, it is also noticed that the order passed by the Tribunal under Section 38-A can be challenged by filing appeal under Section 90 of the Act of 1950. Sub-section (1) of Section 90 provides that against every order, either of interim relief, passed by the Tahsildar or the Tribunal under this Act, appeal shall lie to the Collector and order of the Collector on such appeal shall be final. I have also noticed that Section 91 makes a provision of revision. Either appeal or revision has to be filed by the party concerned to the competent authority in view of the scheme of the Act of 1950.
I am pointing out these two sections at this stage for the reason that I have considered the nature of the suit filed by the plaintiff against State of Maharashtra. In the facts and circumstances of the case, I do not wish to express any opinion regarding the order passed by the Tribunal on joint application under Section 38-A of the Act of 1950.
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Dated 24.9.2008
12. The 'pleading' is crucial. Importance of the pleading is reiterated by the Supreme Court time and again. Recent judgment of the Supreme Court may be referred in the matter State Bank of India v. S.N.Goyal AIR 2008 SCW 4355. The plaintiff in the case on hand, made a statement in paragraph No. 2 of the plaint that the suit property has bee divided amongst himself and his brother fifteen years prior to the filing of the suit. Details of such division are given. In paragraph No. 4, it is pleaded that the plaintiff was suffering from ailment and therefore, executed an agreement of sale on 17.9.1959 in favour of defendant No. 1. Consideration of this agreement of sale was Rs. 1500/-. There was no intention of disposal and sale of the suit property. Separate agreement on that day itself had taken place between the parties. It was mentioned in second agreement that on repayment of Rs. 1500/-by defendant No. 1 uptill 21.3.1960, plaintiff would reconvey / return the property. In case of default, he may proceed further. Halatnama is in possession of defendant No. 1 and he must produce the same in the court. The plaintiff also pleaded that he would file separate application seeking production of Halatnama at a proper stage. The period of said agreement (second) was extended by repudiation uptill 28.3.1961 on the same condition that repayment of Rs. 1500/-. On 28.3.1961, plaintiff repaid the amount of Rs. 1000/-out of Rs. 1500/to defendant No. 1, which was accepted by defendant No. 1. In lieu of balance amount of Rs.500/-the plaintiff mortgaged suit land to defendant No. 1 for the period of three years. Defendant No. 1 agreed to enjoy the suit land in usufructuary or self redeemed mortgage. Three years income of the suit land was settled upon Rs.500/-. It was to be applied in the mortgage money of Rs.500/-. Defendant No. 1 had passed receipt in this behalf. In paragraph No. 6, it is categorically stated that from March 28, 1961, the relationship between the plaintiff and defendant No. 1 was changed into one of mortgagor and mortgagee respectively. This state of affair continued till 27.3.1964. After this mortgage dated 28.3.1961, plaintiff left for Sangli for treatment. In paragraph No. 8, it has been pleaded that absence of plaintiff from village Ausa was utilised by defendant No. 1 for procuring fabricated certificate under Section 38-A of the Act of 1950. A specific pleading is made in paragraph No. 8 that plaintiff was not a party to the said proceeding. It was duty of the Tribunal to record the evidence of plaintiff regarding alleged settlement of price and receipt of the consideration amount. Grievance is raised that there was no notice issued to the plaintiff before issuance of certificate under Section 38-A. Certificate issued by the Tribunal was based on filing of compromise dated 12.6.1993 amongst defendant No. 1 and Mohd. Ismail (brother of the plaintiff). It is also contended in the same paragraph that Mohd. Ismail was not authorised and competent to file the compromise. The Tribunal, unlawfully and illegally issued the certificate under Section 38-A of the Act of 1950 on 18.6.1963. It is in contravention of the provisions of the Act of 1950. Defendant No. 1 could not get title over the suit land based on such illegal certificate. There is no payment of consideration of Rs.8,000/- by defendant No. 1 to plaintiff, nor the said amount was deposited with Tribunal. According to plaintiff, certificate is void and not binding on the plaintiff. Plaintiff perceived issuance of certificate recently when he returned to Ausa from Sangali. In paragraph No. 9, it has been pleaded that after 27.3.1964, defendant No. 1 has no right to possess the suit property. His possession is illegal, unlawful and unauthorised. After arrival of the plaintiff at Ausa, he requested defendant No. 1 to vacate the suit land which was refused by defendant No. 1. Defendant No. 1 denied right and title of the plaintiff over the suit property in the year 1973. In paragraph No. 11, it has been pleaded that defendant No. 1 has unauthorizedly alienated part of the suit land to defendant No. 2. Said transaction is not binding on the plaintiff. Defendant No. 2, accordingly, is joined as party defendant to the suit. In paragraph No. 12, it has been pleaded that possession of defendants 1 and 2 is illegal. With this material pleadings, in paragraph No. 14, three prayers have been made. In substance, prayer first seeks a decree against defendants putting plaintiff in possession of suit land S. No. 7 i.e. Southern portion of said S. No. 7, by evicting defendants and by declaring the certificate dated 18.6.1963 as void and not binding on the plaintiff. The plaintiff by prayer second, seeks reservation of right for initiating the separate proceeding for mesne profits. Third is prayer for costs of the suit.
13. At the outset a glance to plaint, right from description of the properties till the prayer shows that the State of Maharashtra is joined as defendant No. 3. Indisputably, certificate has been issued under Section 38A of the Act of 1950 by Tribunal. This Tribunal is not joined as a party defendant. In paragraph No. 5 of the plaint, some allegations are made against the Tribunal and ultimately issuance of certificate under Section 38-A of the Act of 1950 is pleaded to be illegal, void and not binding on the plaintiff. On this premise, non joining the Tribunal as defendant in the suit is important and significant. In fact, this is a striking defect in the plaint itself. Office copy of the notice issued under Section 80 of CPC is on record. Reply notice by the Collector is also on record. From the notice, it appears that it was addressed to Collector alone and copy thereof was not addressed to Tribunal. From the reply, it is clear that Collector has informed the plaintiff that he has received a notice under Section 80 of CPC and he would address final reply after receipt of the information from the department concerned. The Collector is the district head and representative of the State of Maharashtra within the territory of concerned district. Indisputably certificate under Section 38-A in the case on hand was not issued by the Collector, Osmanabad. It was, therefore, incumbent on the part of the plaintiff not only to issue notice under Section 80 of CPC to the Tribunal and Collector but said Tribunal, whose act and actions / order of issuance of certificate according to the plaintiff is wrong and illegal so also contrary to the provisions of the Act of 1950, should have been joined as a party defendant. Relief prayed in the suit also seeks a declaration that the said certificate is not binding on the plaintiff (second part of paragraph No. 14(1)) and further declaration that the said certificate is void. In this premise and nature of the suit, plaintiff should have joined the Tribunal and afforded him opportunity to meet the case pleaded by plaintiff in the suit. At this stage, it is apposite to refer Part IV of CPC, which is titled as 'Suits in 'Suits in'Suits in'Suits in particular particularparticularparticular cases' cases'cases'cases'. Sub-title reads as 'Suits by or against the Government or public officers in their official capacity.'. It is provided under Section 79 that in a suit by or against the Government, the authority to be named as plaintiff or defendant, at the case may be, shall be (a) in the case of a suit by or against the Central Government, the Union of India and (b) in the case of a suit by or against a State Government, the State. Section 80 of the Code provides that no suit shall be instituted against the Government, including the Government of the State of Jammu and Kashmir, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office...(c) in the case of suit against any other State Government, a Secretary to that Government or the Collector of the district. It has been further provided under section (1) of Section 80 of the CPC that such notice in writing to be delivered to a public officer (in case of public officer) or left at his office, stating the cause of action, name, description and places of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. Section 80(2) makes a concession in favour of the plaintiff in a suit against the State or the public officer, who can seek leave or waiver of notice under Section 80(1) from the Court concerned, in the case of urgency and contingency that plaintiff seeks interim relief from the Court. Section 80(3) has carved out an exception i.e. defect in such notice. Indisputably, in the case on hand, there is no notice to Agricultural Lands Tribunal. Notice address is only to the Collector. There was no issue regarding legality of notice under Section 80(1) in the case on hand.
14. Learned Counsel for the plaintiff has relied upon two reported judicial pronouncements. First one is in the matter of Ram Swarup and Ors. v. Shikar Chand and Anr. : [1966]2SCR553 (Constitution Bench Judgment). It is held that the jurisdiction of the civil court to deal with civil cases can be excluded by the legislature by special acts, which deal with special subject matters; but the statutory provision must expressly provide for such exclusion or must necessarily and inevitably lead to that inference. The bar created by the relevant provisions of the statute excluding the jurisdiction of the civil Courts cannot operate in cases where the plea raised before the civil court goes to the root of the matter and if upheld lead to the conclusion that the impugned order is a nullity. Paragraph No. 1 of the judgment shows that the subject matter was shop taken by respondent for business on rental basis, somewhere in 1952. At the time of suit, provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 was operating in the field. Section 3 of the said Act emphasises certain restrictions on the landlord. Appellant therein had pleaded in the plaint that they had applied for permission to District Magistrate, Muradabad under Section 3(1) of the Act, that the said permission has been refused by him. He had moved the Commissioner in his revisional jurisdiction under Section 3(2) of the Act, who had given permission to file a suit i.e. how the suit was filed in the civil court.
Another judgment, which is relied upon by the learned Counsel for the plaintiff is in the matter Dhulabhai v. State Madhya Pradesh : [1968]3SCR662 (Constitution SC 78) (Constitution Bench judgment). The Supreme Court has held on facts and circumstances of the case, that the suit in question for declaration that the provision of law relating to assessment was ultra vires and for refund of tax illegally collected was not barred by Section 17 of M.B.Sales Tax Act (30 of 1950).
Seven principles regarding exclusion of the jurisdiction of the civil court have been laid down, which are reproduced hereinbelow:
(1). Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2). Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, if it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(3). Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4). When a provision is already declared unconstitutional or the constiutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5). Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6). Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7). An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.
15. In the case on hand, I am not deciding this point for the reason that there was no issue in the trial court on this point, neither point for determination was framed by the first appellate court. I have perused the plaint and what I found at a glance has been referred to in this judgment. Apart from this defect, I have considered the judgment of the trial court. I have also considered the judgment of the first appellate court. The first appellate court has remanded the case to the trial court with a specific direction of reference of issue Nos.13 and 14. Remand of the case has to be in consonance with Order XLI Rules 23 and 23A of CPC. The first appellate court did not advert to any of these provisions while remanding the case to the trial court. The first appellate court was of the opinion that the trial court has recorded a finding and/or adjudicate upon the status of defendant No. 1 as tenant under the provisions of Act of 1950. The first appellate court, therefore, remanded the matter to the trial court with direction contained in the operative part of the judgment. In the case on hand, I have conjointly considered the provisions laid down under Order XLI Rule 23 i.e. remand of the case by the appellate court so also Order XLI Rule 23A i.e. remand in other cases. Along with these two provisions I have also considered the provision laid down under Section 99 of CPC. In my view, in the facts and circumstances obtaining on record and conjoint reading of these provisions make it impermissible for the Court to remand the case to the court at the first instance.
16. In view of the view taken by me in this judgment that the issuance of certificate by the Tribunal under Section 38A is an order which can be appealed against or challenged in accordance with the provisions of the Act of 1950, I have not expressed any opinion regarding submissions advanced by the learned Counsel for the parties. In this view of the matter, I am inclined to quash and set aside the judgment and order passed by the first appellate court, however, making it clear that the plaintiff in the case on hand, if advised, may approach to the competent forum and the forum concerned shall consider the grievance raised in accordance with the provisions of the Act of 1950. The observations or finding recorded by the Courts below or by this Court would not be binding on such an appropriate forum. In other words, such an appropriate forum shall consider and decide the grievance, if raised, by the plaintiff in accordance with the provisions of the Act of 1950.
17. In this view of the matter, Appeal from Order is partly allowed. Judgment and order passed by the first appellate court in Regular Civil Appeal No. 158 of 1983, dated 18.7.1988 is quashed and set aside. It is, however, made clear that the aggrieved party i.e. plaintiff may seek appropriate remedy in accordance with the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950.
In the peculiar facts and circumstances of the case, no order as to costs.