Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi (1979)

Section 9 is usually taught as an all-or-nothing question: either the civil court can try the suit or it cannot. This case shows the third possibility, and it is the one that appears most often in practice. The suit itself is perfectly within the civil court's jurisdiction. It is a single issue arising inside that suit which the legislature has committed to another authority. What then?

The answer given here is precise, and it is the reason the case is set. The civil court neither dismisses the suit nor decides the issue. It refers the issue to the competent authority, waits for the answer, and disposes of the suit in accordance with it. Learn the case as the leading authority on partial ouster of jurisdiction.

The plaintiff sued for specific performance of a contract dated 15 December 1965 for the sale of agricultural land of about 45 acres in Sholapur district, for a consideration of Rs 42,000, of which Rs 5,000 had been paid as earnest money and a further Rs 5,000 on 22 April 1966 when the time for performance was extended by six months. A supplementary agreement of 26 April 1966 was also relied on.

The defendant resisted the suit on a single point of substance. The land was governed by the Bombay Tenancy and Agricultural Lands Act 1948. Section 63 of that Act prohibits the sale of agricultural land to a person who is not an agriculturist. The plaintiff, said the defendant, was not an agriculturist; the contract was therefore contrary to the Tenancy Act and could not be specifically enforced.

The plaintiff met this in two ways. First he produced a certificate from the Mamlatdar certifying that he was an agricultural labourer, so that the bar in s. 63 would not operate. Secondly, and in the alternative, he said that if the certificate was not accepted, then an issue arose on the pleadings as to whether he was an agriculturist, and that under s. 70(a) read with ss. 85 and 85-A of the Tenancy Act that issue had to be referred to the Mamlatdar, the civil court having no jurisdiction to decide it.

The trial court held the certificate to be of no evidentiary value, itself recorded a finding that the plaintiff was not an agriculturist, and dismissed the suit. On the jurisdictional point it reasoned that the issue was merely incidental to a suit for specific performance which the civil court undoubtedly had jurisdiction to try, so it could decide the incidental issue too. The Bombay High Court dismissed the first appeal. The plaintiff came to the Supreme Court by certificate.

1. Where a suit is properly instituted in a civil court, and an issue arises in it which a special statute commits to the exclusive jurisdiction of a designated authority, may the civil court decide that issue because it is only incidental or subsidiary to the main relief? 2. If it may not, what is the civil court to do with the suit?

The appeal succeeded. The Supreme Court held that where, in a suit properly constituted and cognisable by the civil court, an issue arises on a contest which is required to be settled, decided or dealt with by a competent authority under the Tenancy Act, the jurisdiction of the civil court to settle, decide or deal with that issue is not only ousted; the civil court is under a statutory obligation to refer the issue to that authority and, when the reference is answered, to dispose of the suit in accordance with the decision.

Applied to the facts: the defendant's plea under s. 63 raised the issue whether the plaintiff was an agriculturist. That issue is within the exclusive jurisdiction of the Mamlatdar. Both the trial court and the High Court were in error in clutching at a jurisdiction which did not vest in them, and on that ground alone the appeal succeeded.

The distinction between a suit and an issue. The court's starting point is that the character of the suit and the character of an issue arising in it are separate questions. A suit for specific performance is plainly a suit of a civil nature and is nowhere barred. But s. 85-A of the Tenancy Act was introduced precisely to deal with the situation where such a suit throws up an issue that the Act reserves to the revenue authorities. The legislature stepped in to avoid a conflict of jurisdiction by making the reference obligatory.

The primary-or-subsidiary argument is closed. Desai J treats the argument that an issue is merely subsidiary, and therefore triable by the civil court, as having been resolved by the statutory scheme itself: the civil court has no jurisdiction to try such an issue even where it arises in a properly constituted civil suit. So a contention raised by the defendant may itself have the necessary effect of ousting the jurisdiction of the civil court in respect of that contention, which must be disposed of before the suit can be disposed of one way or the other.

The line of authority. The judgment works through the earlier decisions rather than asserting the rule. Ishverlal Thakorelal v Motibhai Nagjibhai (1966) had already held that even in a suit properly instituted in a civil court, if an issue arises which is required to be decided by the revenue court, the issue must be referred and the suit disposed of in the light of the decision; the contrary view of the Bombay High Court in Pandurang Hari v Shanker Maruti and of the Gujarat High Court in Kalicharan Bhajanlal Bhayya v Raj Mahalaxmi was disapproved. Noor Mohd. Khan Ghouse Khan Soudagar v Fakirappa Bharmappa Machenahalli (1978) applied the same reasoning to provisions of the Mysore Land Reforms Act 1961 which were in pari materia, holding that the question fell squarely and exclusively within the jurisdiction of the revenue authorities and that a reference was inevitable, no discretion being left in the civil court.

The contrary argument, and its answer. It was argued that a suit for specific performance is cognisable by the civil court and its jurisdiction is not ousted merely because the contract, if enforced, would violate the Tenancy Act; any violation could be dealt with afterwards by the Mamlatdar under s. 84-C. The court's answer is that this reasoning cannot survive where the statute has in terms reserved the very issue to the designated authority. The existence of a post-decree remedy before the Mamlatdar does not restore to the civil court a jurisdiction which the statute has taken away.

On a s. 9 question, set out the two limbs of the section first — a suit of a civil nature, and cognizance neither expressly nor impliedly barred — and then use this case to add the third situation that the section's language does not spell out: the suit is competent but an issue in it is not. The examinable sentence is that the civil court must refer the issue, await the finding, and decide the suit in accordance with it.

Pair it with the proposition that the burden of establishing an ouster lies on the party asserting it, and that exclusion of the ordinary jurisdiction of civil courts is not readily inferred. This case does not weaken that presumption; it shows what happens once a statute has clearly displaced the civil court on a defined question.

The reference is mandatory, not discretionary. The trial court in this case did not refuse to consider the Tenancy Act; it accepted that the issue arose and then decided it itself, on the footing that an incidental issue goes with the main suit. That is precisely the error corrected. Where the statute reserves the issue, the civil court has no discretion at all.