MANIBHAI BABUBHAI PATEL Vs. SOMABHAI CHHANABHAI PATEL

JUDGEMENT

(1.) The petitioners were the original plaintiffs before the Mamlatdar and they along with others had filed a suit being Suit No. 3 of 1981 under Mamlatdars Court Act. Opponents 2 3 and 5 were also plaintiffs in the said suit. Opponent No. 1 was the defendant in that suit. Opponent No. 5 is described as the heir of deceased Chhanabhai Keshavbhai Patel who was original plaintiff No. 7 before the Mamlatdar in the suit filed under the Mamlatdars Court Act. The prayer in this petition is that the Mamlatdar may be directed to decide the case on merits. For the purpose of deciding this petition certain facts are required to be stated and those facts are that the petitioners No. 1 to 4 opponent Nos. 2 3 and 5 and one Chhanabhai Keshavbhai Patel filed a suit being suit No. 3 of 1981 under sec. 3 of the Mamlatdars Court Act against respondent No. 1. During the pendency of that suit original plaintiff No. 7 Chhanabhai Keshavbhai Patel died and nobody bothered to bring his heirs on record. The result was that the Mamlatdar acted under the provisions contained in sec. 18(3) of the Mamlatdars Court Act 1906 and he passed an order that the suit abates and as a result the plaint came to be rejected. That order came to be challenged by filing a revision application before the Deputy Collector Navsari and the revision application came to be dismissed on 20/07/1982 Thereafter this petition is filed under article 227 of the Constitution of India. I have heard the learned Advocate Shri R. N. Shah for the petitioners and the learned Advocate Shri A. K. Shah on behalf of respondent No. 1. Sec. 18(3) of the Mamlatdars Court Act 1906 provides as under:

(2.) The Mamlatdar Court Act 1906 was enacted in the year 1906 and at that time it was enacted to provide a speedy remedy to litigants in respect of certain matters which were provided under sec. 5 of that Act. It is not necessary to narrate all the powers given to the Mamlatdar under sec. 5 but it is sufficient to say that the powers generally were in regard to agricultural lands and they generally related to granting of poSsession of agricultural lands and restoration regarding the use of waters removing impediments in regard to natural flow of water in a defined channel and such other powers in regard to agricultural lands falling within the territorial jurisdiction of the Mamlatdar who used to preside over a court and such suits were to be filed within a period of six months from the date on which cause of action arose.

(3.) In respect of the matters over which the powers were given to the Court of the Mamlatdar under sec. 5 the jurisdiction of the Civil Court was not barred and therefore the scheme of the Act was such by which a party would chose any forum. He may either file a suit in the Court of the Mamlatdar or he might as well file a suit in the Civil Court. However if he wanted to file a suit in the Court of the Mamlatdar he was required to do so within a period of six months from the date on which the cause of action arose. If he choses the forum of a Civil Court he would have to file a suit within the limitation as prescribed by the Indian Limitation Act. The decision rendered by the Mamlatdar would not operate as res judicata and the party even after failing in the Court of the Mamlatdar might as well file a suit in the Civil Court because his first remedy was of a summary nature. This position is made clear in the case of JAMNADAS JOITARAM V. DEVJI BHANA AND ANOTHER REPORTED IN 13 GLR 1972 AT PAGE 566: The position is clarified in paragraph 6 of that judgment as under: