1. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein – original defendants to quash and set aside the impugned Judgement and Order / decree passed by the learned appellate court - learned Additional District Judge, Rajkot in Regular Civil Appeal No. 35 of 2002 dtd.30/11/2005, by which the learned appellate court has allowed the said appeal preferred by the respondent herein – original plaintiff by quashing and setting aside the judgement and decree passed by the learned trial court in dismissing the suit.
2. That the respondent herein - original plaintiff instituted Regular Civil Suit No. 412 of 1994 against the appellants herein – original defendants for declaration and permanent injunction to declare the show the notice issued by the Collector, Rajkot dtd.9/7/1993 (Ex.59) as well as order passed by the Collector, Rajkot dtd.16/12/1993 Ex.60 issued under sections 79A and the 202 of the Bombay Land Revenue Code, as illegal, without any authority and jurisdiction and nullity.
3. It was the case on behalf of the plaintiffs that the Collector had no jurisdiction to issue notice under section 79A of the Bombay land Revenue Code and pass order under section 202 of the Bombay Land Revenue Code with respect to suit property and that the impugned order is beyond the scope and ambit and jurisdiction of the Collector, Rajkot.
4. That the aforesaid suit was resisted by the appellants – original defendants by submitting that as such the civil court has no jurisdiction to consider the legality and validity of the order passed by the Collector, Rajkot under Section 79A read with Section 202 of the Bombay Land Revenue Code, in view of section 4 read with section 11 of the Bombay Revenue Jurisdiction Act, 1876. It was submitted that unless all remedies against the order passed by the Collector under the Bombay Land Revenue Code are exhausted, the suit is not maintainable. That the learned trial court accepted the same and dismissed the suit by judgement and decree dtd.15/7/2002. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court dismissing the suit, respondent herein – original plaintiff preferred Regular Civil Appeal No. 35 of 2002 before the learned District Court, Rajkot and the learned Joint District Judge, Rajkot by the impugned Judgement and Order dtd.30/11/2005 has allowed the said appeal quashing and setting aside the judgement and decree passed by the learned trial court dismissing the suit and consequently decreeing the suit and declaring the show cause notice dtd.9/7/1993 (Ex.59) as well as order dtd.16/12/1993 (Ex.60) on the basis of the aforesaid show cause notice dtd.9/7/1993 (Ex.59) as illegal, without any authority and jurisdiction and declaring the same as nullity. The learned appellate court also granted permanent injunction restraining the appellants – original defendants from implementing the order dtd.16/12/1993 (Ex.60). Being aggrieved by and dissatisfied with the Judgement and Order passed by the learned appellate court in Regular Civil Appeal No.35 of 2002 dtd.30/11/2005, the appellants herein – original defendants have preferred present Second Appeal under section 100 of he Code of Civil Procedure.
5. Mr. Pranav Dave, learned Assistant Government Pleader has vehemently submitted that the learned trial court has materially erred in allowing the appeal and quashing and setting aside the judgement and decree passed by the learned trial court dismissing the suit. It is submitted that considering the fact that the original plaintiffs challenged the order passed by the Collector, Rajkot under sections 79A as well as 200 of the Bombay Land Revenue Code, by way of instituting the suit without exhausting remedy available to it to challenge the order passed by the Collector under the Bombay Land Revenue Code, the learned appellate court ought to have dismissed the appeal confirming the judgement and decree passed by the learned trial court, which was dismissed on the ground that the Civil Court has no jurisdiction in view of he bar under sections 4 and 11 of the Bombay Revenue Jurisdiction Act.
6. Mr.Dave, learned Assistant Government Pleader has also relied upon sections 4 and 11 of the Bombay Revenue Jurisdiction Act by submitting that unless all the remedies against the order passed by the revenue authorities are exhausted, suit is not maintainable.
By making above submissions it is requested to allow the present Second Appeal.
7. Present Second Appeal is opposed by Mr.Vicky Mehta, learned advocate appearing on behalf of the respondent herein – original plaintiff. It is submitted that considering the fact that, having satisfied with the show cause notice dtd.9/7/1993 (Ex.59) as well as final order 16/12/1993 (Ex.60), as illegal and without authority and jurisdiction, the learned appellate court has rightly quashed and set aside the said orders and therefore, it is requested to dismiss the present Second Appeal, as no illegality has been committed by the learned appellate court in quashing and setting aside the show cause notice as well as order passed by the Collector under section 79A and 202 of the Bombay Land Revenue Code and granting permanent injunction as prayed for.
8. Heard the learned advocates appearing on behalf of the respective parties at length.
9. At the outset, it is required to be noted that the original plaintiff challenged the show cause notice notice dtd.9/7/1993 (Ex.59) as well as final order 16/12/1993 (Ex.60), issued by the Collector, Rajkot issued by the Collector Rajkot under section 79A and 202 of the Bombay Land Revenue Code. It is required to be noted that under the provisions of the Bombay Land Revenue Code, against the order passed by the Collector, further Revision Application is provided before the State Government – Secretary (Appeals), Revenue Department, State of Gujarat, as provided under section 203/211 of the Bombay Land Revenue Code. It is an admitted position that the plaintiff had not exhausted the said remedy available under the Bombay Land Revenue Code and straightway instituted the suit challenging the order passed by the Collector under sections 79A as well as 202 of the Bombay Land Revenue Code. As provided under section 11 of the Bombay Revenue Jurisdiction Act, no Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bringing his suits he has presented such appeals allowed by the law time being in force, as within the period of limitation allowed for bringing such suits it was possible to present.
10. Section 4 of the Bombay Revenue Jurisdiction Act also provides for bar a suit in certain cases. Under the circumstances, when the learned trial court dismissed the suit, considering the aforesaid provisions, more particularly, the provisions of the Bombay Revenue Jurisdiction Act, the learned appellate court has committed any error and/or illegality in allowing the appeal and quashing and setting aside the judgement and decree passed by the learned trial court in dismissing the suit.
11. The respondent – original plaintiff is not in a position to point out anything as to how in light of sections 11 and 4 of the Bombay Revenue Jurisdiction Act without exhausting all remedies available under the Bombay Land Revenue Code, suit was maintainable. Under the circumstances, the impugned Judgement and Order passed by the learned appellate court cannot be sustained and the same deserves to be quashed and set said and the judgement and decree passed by the learned trial court deserves to be restored.
12. In view of the above and for the reasons stated above and on the aforesaid ground alone, the impugned Judgement and Order / decree passed by the learned appellate court - learned Additional District Judge, Rajkot in Regular Civil Appeal No. 35 of 2002 dtd.30/11/2005 is hereby quashed and set aside and the judgement and decree dtd.15/7/2002 passed by the learned trial court in Regular Civil Suit No.412 of 1994 dismissing the suit is hereby restored. Present Second Appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik