High Court

Legal Reasoning

1 17-WP.11828-16.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD17 WRIT PETITION NO. 11828 OF 2016MADHUKAR VITTHAL SHINDEVERSUSTHE COLLECTOR AHMEDNAGAR AND OTHERS...Advocate for the Petitioner : Mr. Gawali Amol K.AGP for Respondents-State : Mr. A. S. Shinde.Advocate for Respondent No.4 : Mr. Latange V. P....CORAM : S. G. MEHARE, J.DATE :25.04.2024PER COURT :- 1.Heard the learned counsel for the petitioner, learnedAGP and learned counsel for respondent No.4. 2.The contesting respondent No.4/original applicant hasfiled a plaint under Section 5 of the Mamlatdars’ Courts Actbefore the Tahsildar for removing the obstruction in the road inexistence. After presenting the plaint the presence of the non-applicants (present petitioner) was secured, and only on oneday they were absent. Hence, the matter was closed for orderson 06.07.2015. Thereafter, the impugned order was passed on23.07.2015. The present petitioner had impugned the order ofthe Tahsildar before the SDO. He has raised the objection thatthe cause of action for filing the suit did not happen within six 2 17-WP.11828-16.odtmonths from the date of the plaint. However, the SDO did notcomment on the objection as to the cause of action. He hasrecorded the findings that it was the submission of therespondent that no way/road was available between GutNos.557 and 558. Consequently, the petitioner had to seek anew road under Section 143 of the Maharashtra Land RevenueCode instead of an application under Section 5(2) of theMamlatdars’ Courts Act. Though recorded such findings, theSub Divisional Officer appears to have sympatheticallymaintained the order of the Tahsildar.3.Learned counsel for the petitioner pointed out thatbefore the so-called plaint was presented, the contestingrespondent approached the various authorities, complainingabout the obstructions of the road. Therefore, she has no rightto file a plaint under the Mamlatdars Courts Act. The Tahsildar,without giving an opportunity to file written statement, hastilydecided the case ex-parte. 4.Learned counsel for the petitioner submits that theBombay High Court, in the case of Gaurakshan Sansthan Vs.State of Maharashtra and others ; 2019(6) Mh.L.J. 473 hasheld that the provisions under Sections 7, 9, 10 and 12 of theMaharashtra Mamlatdars’ Courts Act are mandatory and its 3 17-WP.11828-16.odtcompliance to be done as stipulated by Section 7 of the saidAct. The Mamlatdar can proceed with the adjudication onmerits only when the plaint is found to be admissible. No suchmandatory provisions were observed in that case. Therefore, aCourt finally held that the impugned orders were notsustainable on the grounds that the necessary compliance withthe provisions of Sections 7 and 9 of the said Act had not beendone. However, the liberty was granted to the petitioner to filea fresh application on the same cause of action by complyingwith the provisions of Section 7 of the said Act. The argumentrevolves around the mandatory non-compliance of theMamlatdar’s Court Act, particularly the cause of action. Hence,in any way, the plaint is not tenable. He prayed that the writpetition would be allowed and the application dismissed. 5.Per contra, learned counsel Mr. Latange for contestingrespondent No.4 has vehemently argued that the petitionerwas a layman. She did not know the procedure of law. TheMamlatdar was to examine the plaint as provided under theMamlatdars’ Courts Act. Section 9 of the Mamlatdars’ CourtsAct empowers the Mamlatdar to call for the parties if anydefect is found in the plaint, and the opportunity should begranted to such litigants. He means to say that examination of 4 17-WP.11828-16.odtthe plaint is the duty of the Mamlatdar and has to grant theapplicant/petitioner such time as may under all circumstancesappear reasonable. The Mamlatdar was required to resort tothe provisions of Section 9 of the Mamlatdars’ Courts Act,examine the plaintiff/applicant on oath, and ascertain suchparticulars specified under Section 7. He also argued that theBombay High Court, in the case of Bhagwat Buasaheb PhundeVs. Rama Srihari Ghule and others; 2022 (3) Mh.L.J. 464 hasheld that although scheme of the Act does not expresslyprovide that power under Section 12 of the M. C. Act should beexercised at particular stage only, the scheme of the Act impliesthat party can seek rejection to plaint before it is admittedunder Section 14 of the M.C.Act or by raising objection inwritten statement as to admissibility of plaint to enableMamlatdar to frame issue in terms of Section 19(1)(c)(3) of M.C. Act. It has also been observed that while it is true thatordinarily, preliminary objection as to maintainability of theplaint on the ground of absence of cause of action should beraised by the respondent as early as possible if the party raisesobjections after filing written statement, the preliminaryobjection cannot be ignored. In the said case, the objection asto the maintainability of the plaint and its consequent rejectionwas not sought, either before admitting the plaint or in the 5 17-WP.11828-16.odtwritten statement, the Court dismissed the petition of theobjector/non-applicant.6.He further relied on the case of HasmukhbhaiIshwarbhai Patel Vs. Deputy Collector of the Gujarat HighCourt ; LAWS (GJH)-2022-12-1858. In this case, a similar issuewas before the Court. The case of Bhaskarbhai LaxmishankarMehta Vs. Pravinbhai Mohanbhai Zalavadia ; 2011 (JX)Gujarat 1741 was referred to. In the said judgment inparagraph No.19, the Court observed that moreover, as alreadynoted herein above, in the absence of the date on which thecause of action arose, the basic requirements of Sub Section(3) of Section 5 of the Act are not satisfied and as such, theMamlatdar had no jurisdiction to entertain the suit underSection 5 of the Act. The Court expressed the opinion that inthe absence of anything on record to indicate that Mamlatdarhas not undertaken the necessary exercise under Sections 7and 9 of the Act to ascertain the cause of action havingsatisfied himself the Mamlatdar embarked upon theproceeding, the findings of the SDO that the suit was not filedwithin six months of the cause of action was erroneous. Finally,the Court remitted the matter to the Tahsildar. 6 17-WP.11828-16.odt7.In the case at hand, Mamlatdar did not examine theplaint and did not undertake the necessary exercise underSections 7 and 9 of the Mamlatdars’ Courts Act. Theopportunity of hearing was not granted to the petitioner to filethe written statement. In fact, the SDO ought to have remittedthe matter to the Tahsildar, granting both sides the opportunityto bring the suit within the four corners of the Mamlatdars’Courts Act. Various issues based on the facts are involved in thematter. Therefore, the conclusion would be to remit the casefor fresh decision. Hence, the following order :O R D E R(i)The impugned judgments and orders of theTahsildar and SDO stand quashed and set aside. (ii)The matter is remitted to the Tahsildar fordeciding the case afresh by exercising thenecessary provisions of the Mamlatdars’ Courts Actand granting the petitioner an opportunity to filethe written statement at the earliest and hearingto both sides. (iii)All the points are kept open for all partiesconcerned. 7 17-WP.11828-16.odt(iv)All the parties should appear before the Tahsildaron 20.05.2024.(v) The Tahasildar should expedite the hearing.(vi) Writ petition stands disposed of (S. G. MEHARE, J.)...vmk/-