Case Note & Summary
The appellant, original defendant No.1, was granted a right of way over the plaintiff's field by the Mamlatdar under Section 5 of the Mamlatdars' Courts Act, 1906 vide order dated 23-6-1998. The plaintiff filed Regular Civil Suit No.66 of 1998 seeking a declaration that the Mamlatdar's order was bad in law and for an injunction restraining the defendant from using the way. The Trial Court dismissed the suit, but the lower Appellate Court allowed the appeal, granting the declaration and injunction. The defendant appealed to the High Court. The High Court framed substantial questions of law regarding the jurisdiction of the Civil Court to entertain the suit. The Court held that under Section 7 of the Mamlatdars' Courts Act, 1906, the remedy against an order under Section 5 is by way of appeal to the Collector, and the Civil Court's jurisdiction is barred. The suit was therefore not maintainable. The High Court allowed the appeal, set aside the judgment of the lower Appellate Court, and dismissed the suit with no order as to costs.
Headnote
A) Civil Procedure - Jurisdiction of Civil Court - Bar under Mamlatdars' Courts Act, 1906 - Section 5 and Section 7 - The Civil Court has no jurisdiction to entertain a suit challenging an order passed by the Mamlatdar under Section 5 of the Mamlatdars' Courts Act, 1906 granting a right of way, as the remedy lies by way of appeal to the Collector under Section 7 of the Act. The suit for declaration that the Mamlatdar's order is bad in law is not maintainable. (Paras 1-4)
Issue of Consideration
Whether the Civil Court has jurisdiction to entertain a suit challenging an order passed by the Mamlatdar under Section 5 of the Mamlatdars' Courts Act, 1906 granting a right of way.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the lower Appellate Court, and dismissed the suit with no order as to costs.
Law Points
- Civil Court jurisdiction barred for orders under Section 5 of Mamlatdars' Courts Act
- 1906
- Suit for declaration that Mamlatdar's order is bad in law not maintainable
- Remedy lies under Section 7 of the Act by way of appeal to Collector
- Section 9 CPC not applicable when special statute provides remedy
Case Details
2017 LawText (BOM) (03) 144
Second Appeal No.386 of 2003
Smt. R.D. Raskar for Appellant, Shri Amit Kukday for Respondents
Mohommad Khan s/o Rahim Khan
Shri Shankar s/o Maroti Dhage and Shri Narayuan s/o Maroti Dhage
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Nature of Litigation
Second appeal against judgment of lower Appellate Court granting declaration and injunction regarding right of way.
Remedy Sought
Appellant sought setting aside of lower Appellate Court's judgment and restoration of Trial Court's dismissal of suit.
Filing Reason
Appellant challenged the lower Appellate Court's decision granting declaration that defendant No.1 has no right to use the northern boundary of plaintiff's field.
Previous Decisions
Trial Court dismissed the suit; lower Appellate Court allowed the appeal and granted declaration and injunction.
Issues
Whether the Civil Court has jurisdiction to entertain a suit challenging an order passed by the Mamlatdar under Section 5 of the Mamlatdars' Courts Act, 1906.
Submissions/Arguments
Appellant argued that the Civil Court has no jurisdiction to entertain the suit as the remedy lies by way of appeal under Section 7 of the Mamlatdars' Courts Act, 1906.
Respondents argued that the Civil Court has jurisdiction under Section 9 CPC.
Ratio Decidendi
The Civil Court has no jurisdiction to entertain a suit challenging an order passed by the Mamlatdar under Section 5 of the Mamlatdars' Courts Act, 1906, as the remedy lies by way of appeal to the Collector under Section 7 of the Act. The suit is not maintainable.
Judgment Excerpts
The Trial Court dismissed Regular Civil Suit No.66 of 1998 for grant of declaration that the order dated 23-6-1998 passed by the Mamlatdar under Section 5 of the Mamlatdars' Courts Act, 1906 granting right of way to the defendant No.1 is bad in law...
The lower Appellate Court has allowed the appeal and set aside the decision of the Trial Court.
Procedural History
The Trial Court dismissed the suit. The lower Appellate Court allowed the appeal. The defendant filed a second appeal in the High Court, which was admitted on substantial questions of law regarding jurisdiction.
Acts & Sections
- Mamlatdars' Courts Act, 1906: Section 5, Section 7
- Code of Civil Procedure, 1908: Section 9
