JAG-NARAIN MALLAH Vs. BHAGAUTI PRASAD PANDEY

JUDGEMENT

(1.) These two revision applications raise the same question whether a suit can be instituted in a civil Court under Section 9 of the Specific Relief Act even though a suit could be instituted in a revenue Court under Section 180 or Section 183 of the U. P. Tenancy Act.

(2.) The two suits which give rise to the applications were instituted in civil Courts under Section 9, Specific Relief Act and were both decreed in spite of the objections of the defendants-applicants that the jurisdiction of the civil Courts to hear them was barred by the provisions of Section 242 of the U. P. Tenancy Act. Both the suits purported to be suits purely and simply under Section 9, Specific Relief Act; the only allegations contained in the plaints were that the plaintiffs were in possession of the land in dispute previously and that they were dispossessed by the defendants within the six months immediately preceding the institution of the suits. In the suit giving rise to the application, No. 1543 of 1951, it turned out from the evidence produced in the Court that in the course of record operations the name of the defendant-applicant was entered in the khasra of 1355 Fasli in compliance with an order passed by a Record Officer. The land in dispute was khudkasht of the plaintiff-opposite-party and his name was entered in the column of tenant's name in the khasra of 1354 Fasli. In the remarks column there was a note that the possession of the plaintiff-opposite-party was disputed, that the defendant-applicant was in possession and that there was an order of the Record Officer that the name of the defendant-applicant should be entered in the khasra of 1355 Fasli with the term of cultivation as one year. Accordingly the applicant's name was entered in the khasra of 1355 Fasli. On establishing these facts the defendant contended that the civil Court had no jurisdiction, its jurisdiction being barred not only by the provisions of Section 242, U. P. Tenancy Act, but also by those of Section 40, U. P. Land Revenue Act. In the other suit giving rise to the application No. 126 of 1952, it was established during the hearing of the suit that the plaintiff had instituted a Suit against the defendant for his ejectment from the land in dispute under Section 180, U. P. Tenancy Act, that proceedings in the suit were stayed in accordance with the provisions of U. P. Acts Nos. 10 of 1949 and 7 of 1950 and that while the proceedings remained stayed the suit was instituted concealing the facts about the institution of the suit under Section 180 and its stay.

(3.) A person entitled to admit another to occupy a plot of land is entitled to eject him through a suit under Section 180 if he takes possession of it without his consent and otherwise than in accordance with the provisions of the law, and a tenant ejected from his holdings or a part of it otherwise than in accordance with the provisions of the law by his landholder or a person claiming as such or a person admitted to or allowed to retain possession of the holding by him, may Sue him for possession under Section 183, U. P. Tenancy Act. It is provided in Section 242 that suits of the nature specified in the fourth schedule (suits under Ss. 180 and 183 are specified in it) must be heard and determined by a revenue Court and no other Court can take cognizance of any such suit, or of any suit based on a cause of action in respect of which any relief could be obtained by means of any such Suit. Previously the provision was that if adequate relief could be obtained by means of a suit in a revenue Court, no suit would lie in a civil Court; later the word "adequate" was expunged and still later the word "any" was added. The position now is that if some relief, whatever be its nature and however inadequate it may be, can be obtained by means of a suit under Section 180 or Section 183, no suit can be instituted in a civil Court. The language employed in Section 242 is as emphatic as it is clear. As observed by our brother M. L. Chaturvedi in Mohammad Zahir Hasan v. Dulare, 1953 All LJ 399: (AIR 1953 All 729) (A), the prohibitory clause is "very widely worded"; the exclusion of cases from a civil Court's jurisdiction is very wide. Not only a suit, which can be filed in a revenue Court under Section 180 or Section 183, cannot be filed in a civil Court but also if a plaintiff can obtain from a revenue Court, any relief by means of a suit under Section 180 or Section 183, he cannot file a suit for any relief in a civil Court. Of course no plaintiff would be foolish enough to state in the plaint that the suit is under Section 180 or Section 183 and yet file it in a civil Court; what is meant by barring a civil Court's taking cognizance of a Suit under Section 180 or Section 183 is that if a plaint contains allegations which are required for a suit under Section 180 or Section 183, i, e it is based on a cause of action mentioned in either of those sections, a civil Court is prohibited, from entertaining it. The prohibition is not confined to a plaint based on such a cause of action; it goes further and a civil Court is prohibited from taking cognizance of a suit based on a cause of action in respect of which any relief could be obtained by a suit under either of the sections from a revenue Court, i.e., whatever may be the allegations in the plaint, if the plaintiff could obtain any relief by means of such a suit, the plaint cannot be entertained by a civil Court. If on the accrual of a cause of action a person can get relief by mean's of a suit under either of the sections, he is compelled to file such a suit and a civil Court is prohibited from entertaining any suit howsoever framed in respect of the cause of action. Since the legislature could not expect a person to be so foolish as to purport to sue under either of the sections and yet file the suit in a civil Court, the words "no Court other than a revenue Court shall ..... take cognizance of any such suit" must mean that no other Court shall take cognizance of a suit containing the allegations required for such a suit, i.e., based on a cause of action for such a suit. Consequently the further prohibition that no other Court shall take cognizance of any suit based on a cause of action in respect of which any relief could be obtained by means of such a suit must mean that no other Court can take cognizance of any suit, though not containing the allegations required for a suit under either of the sections, if the plaintiff can file such a suit on the cause of action accruing to him. In other words a plaintiff :is not given a choice of two Courts; he is not permitted to file a suit in one Court or the other by making appropriate allegations in the plaint. He has no election in the matter at all; the forum of Court is determined once for all by the cause of action that has accrued. The cause of action means the facts that have happened on account of which a person gets a right to file a suit for a relief; whatever facts have happened have happened and cannot be changed subsequently. It means that a cause of action is, and remains immutable after it has accrued; it cannot be changed though it can be suppressed or concealed or twisted. Whether a suit would lie in a civil Court or a revenue Court is determined and determined once for ever as soon as the cause of action accrues and the plaintiff is required by law to file the suit in the Court which can grant relief for the cause of action and is not prohibited from taking cognizance of the suit. Since he is required to state in the plaint how the Court has jurisdiction, he must state the cause of action as it accrued, i.e., he must make true and full allegations. He cannot suppress the cause of action or a part of it and cannot make false or incomplete allegations and file the suit in another Court. Even though another Court would have jurisdiction to entertain his suit, if the allegations made in the plaint were correct, and would entertain it for the time being, on the defendant's showing what the real cause of action was, it would be obliged to dismiss the suit on the ground of exclusion of its jurisdiction. The words "cause of action" used in Section 242 mean the actual or real cause of action that has accrued and not a fabricated or simulated cause of action or the cause of action alleged in the plaint. The emphatic prohibition would be wholly inconsistent with the idea of giving a plaintiff a choice of two Courts by making appropriate allegations in the plaint and since he has no choice in the matter, the forum must be determined by the real or actual cause of action and not by what he alleges in the plaint. If he has no choice, he cannot change the forum by changing the cause of action or alleging an unreal or incomplete cause of action. It is true that the jurisdiction is determined by the allegations made in a plaint, but this statement does not solve the whole problem or answer all the questions that arise. It is clear from the language of Section 242 that the forum should be ascertained first and then, appropriate allegations should be made in the plaint and not that any allegations be made in the plaint and then the forum be determined on their basis. The section takes into account only the cause of action which means the real cause of action and not the allegations that may be made in the plaint. Since a plaintiff has no choice of forum, he has also no choice of allegations to be made. The forum is determined by the cause of action that has already accrued and the allegations to be made depend upon the forum.