Ishverlal Thakorelal Almaula v Motibhai Nagjibhai (1965)

This is the decision that settled what a civil court is to do when a suit is properly before it but one of the issues in it has been reserved by statute to a revenue authority. The tempting answers are that the civil court should try the issue anyway because the suit is its own, or that it should throw the suit out because it cannot try the issue. The Court rejects both. The suit survives; the issue goes elsewhere; the decree follows the answer that comes back.

It is placed in Unit 1 because it is a working illustration of the second half of s. 9 of the Code. Jurisdiction of civil courts is the rule, and its exclusion is worked out provision by provision — here by reading ss. 70, 85 and 85A of a tenancy statute together, and by asking not whether the proceeding is a civil suit but whether this particular issue is one the legislature has entrusted to someone else.

On 18 June 1939 the appellant granted tenancy rights in agricultural land at Kanbivaga in the town of Broach to Nagjibhai, the father of the respondent. The land remained in the possession of Nagjibhai, and after his death of his son, the respondent, the tenancy being continued year after year under fresh agreements. The land lay within the limits of the Broach Borough Municipality, and the name of Nagjibhai had been entered in the Record of Rights as a protected tenant under the Bombay Tenancy Act 1939 as amended.

By letter dated 2 November 1955 the appellant terminated the tenancy and called on the respondent to deliver vacant possession on 31 March 1956. On 4 April 1956 he filed a suit in the Court of the Civil Judge, Senior Division, at Broach, for a decree in ejectment and for mesne profits. The Civil Judge decreed the claim. The District Judge, Broach, reversed that decree and dismissed the suit, holding that by the proviso to s. 43C the respondent continued to be a tenant and that the civil court had no jurisdiction to grant a decree for possession. A second appeal to the High Court of Bombay was dismissed summarily, and the appellant came to the Supreme Court by special leave.

The sequence matters, because the suit was filed in the trough between two amendments. The Act of 1948 conferred on tenants a tenancy of not less than ten years, a bar on termination except on the grounds in s. 14, a right in a protected tenant to purchase the land, and a rule that a landlord shall not obtain possession except under an order of the Mamlatdar. Bombay Act 33 of 1952 then amended s. 88 so that lands within municipal boroughs ceased to be governed by the Act of 1948, and it was on the strength of that amendment that the appellant gave his notice and sued. Bombay Act 13 of 1956, passed while the suit was pending, restored the protection, and by the proviso to s. 43C did so with retrospective effect from the date on which the Act of 1952 had been enacted.

The Court agreed with the Bombay High Court that the proviso protects a tenant who had the protection of the Act as originally enacted, and that it must be given to him even where it is claimed in a suit filed before the amending Act, if the suit is not finally disposed of. On the nature of a proviso it noted that "The proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause", while adding that there is no rule confining a proviso always to the ambit of the main enactment.

Two sections did the work. Section 70 set out the duties of the Mamlatdar, including "to decide whether a person is a tenant or a protected tenant". Section 85(1) provided that "No Civil Court shall have jurisdiction to settle, decide, or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal", and for that section's purposes a civil court includes a Mamlatdar's Court constituted under the Mamlatdars' Courts Act 1906 — a trap worth noticing, since a Mamlatdar wearing one hat is a civil court and wearing another is a revenue court.

Act 13 of 1956 added s. 85A, which directed that where a suit instituted in any civil court involves issues required to be settled, decided or dealt with by a competent authority under the Act, the "Civil Court shall stay the suit and refer such issues to such competent authority for determination"; and that on receipt of the reference "the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court", whereupon the civil court is to dispose of the suit.

The District Judge's order of dismissal could not stand. "In the present case, the suit was properly entertained by the Civil Court but since the enactment of Act 13 of 1956 the Civil Court could not try certain issues arising therein", those issues being triable exclusively by the revenue court. But "There is, however, nothing in Act 67 of 1948 which prevents continuation of the suit already instituted."

Hence the direction: "The proper procedure in such a case is that the Civil Court should refer to the Revenue Court all such issues as are triable exclusively by that Court by virtue of the combined operation of ss. 70 & 85." And then: "The Civil Court may then pass such decree or order as is consistent with the adjudication of the Revenue Court."

The Court read s. 85A as putting the matter beyond argument for the future: issues which the Act requires a revenue court to decide, "even if arising in a civil suit must be decided by the Revenue Court and not by the Civil Court." 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 Bai Mahalaxmi — that the civil court was competent to adjudicate on such issues — was disapproved, though their holding that a properly instituted suit is not liable to be dismissed merely because tenants' rights have been retrospectively restored was accepted as correct.

The finding of the District Judge that the civil court had no jurisdiction to hear the suit, and his order dismissing it, were "therefore not strictly accurate". He should have referred the questions relating to the tenancy and its determination to the Mamlatdar as a revenue court, and should not have proceeded to dispose of the suit. The decree of the High Court and of the District Court was set aside and the District Court directed to restore the appeal to its original number and proceed according to law. Because the appellant had himself conceded before the District Court that the suit might be dismissed, his legal representatives were directed to pay the costs of the appeal, the costs in the District Court to abide the event.

Mudholkar J, dissenting, would have gone further: the question whether a person is a protected tenant is for the Mamlatdar alone, and once such a claim is made before a civil court, in the words of his opinion, "it must stay its hands and refer the question to the Mamlatdar". On his view it was not open to the Supreme Court itself to construe the tenancy enactments and pronounce on their application to the facts.

Jurisdiction here is sliced by issue, not by suit. The civil court retained the suit, the prayers, the parties and the ultimate decree; what it lost was the competence to answer one question. Candidates who write that "the civil court had no jurisdiction" reproduce exactly the error the Supreme Court corrected — the Court said the District Judge's finding in those terms was not strictly accurate. Say instead that the civil court had jurisdiction over the suit but not over the reserved issue, and the rest of the answer follows.