1 CRA NO.126/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.126 of 2011 1. Shri Surendra Sonaji Kalokhe, Age: 45 years, Occu: Agri. & Advocate. 2. Smt. Sunita Surendra Kalokhe, Age: 40 years, Occu: Agri. 3. Shri Nandkumar Banshi Babar, Age: 45 years, Occu:Agri., 4. Smt.Kaushalyabai Banshi Babar, Age: 70 years, Occu: Agri. 5. Smt. Sangita Dattatraya Shinde, Age: 44 years, Occu: Agri., No. 1 & 2 r/o. Pantanagar, Shrigonda, Dist. Ahmednagar. No.3 to 5 R/o Shendgewadi, At Post: Shrigonda, Dist. Ahmednagar. ..PETITIONER (Orig.Defendants) VERSUS 1. Shri Chand Abdul Jakate, Age: 45 years, Occ: Agri.& Service. 2. Shri Asif Fakirmohammad Jakate, Age: 25 years, Occu: Agri. Both r/o Jakate Vasti, Shrigonda, Dist. Ahmednagar. ...RESPONDENTS (Orig.Plaintiffs). ... 2 CRA NO.126/2011 Shri Niteen V.Gaware, Adv., for the petitioner. Mr. S.P.Brahme, Adv., for respondents. ... CORAM: K.U.CHANDIWAL, J. DATE:NOVEMBER 15th, 2011 *** PER COURT : 1. Heard finally. 2. An application was moved by the revisional applicant Surendra in Regular Civil Suit No.16/2011, dated 3.3.2011 to reject the plaint in terms of Order VII Rule 11 C.P.C. It was canvassed in the application that the suit is based on false assertions. 3. Plaintiff No.1 owns 54 R. land while plaintiff No.2 has 67 R. land from Gat No.2372 which has total area of 6 H. 74 R. The plaintiffs, according to the revisional applicant, were independently enjoying their possession, however, they did not so disclose in the plaint as to which area they were enjoying. 4. It was informed that the revisional applicant had preferred proceedings being Wahiwat Case No.13/2010 before the Mamlatdar in which judgment of removing impediment is favoured to the revisional applicant, which has been 3 CRA NO.126/2011 questioned by the aggrieved persons, including plaintiff in Revision Application No.82/2010. The application for stay to the orders of the learned Mamlatdar (Tehsildar) was rejected by the appellate authority (Sub Divisional Officer, Karjat) on 8th Dec.,2010. 5. It is canvassed in the application that, since the proceedings were pending before the Mamlatdar, the subsequent suit filed by the plaintiff in the Civil Court in RCS No.16/2011, is not maintainable in terms of Order IV Rule 11 of Code of Civil Procedure. 6. Learned Counsel for the revisional applicants read the orders of the Tehsildar, the Sub Divisional Officer and the pleadings of respondent herein (plaintiffs in RCS No.16/2011). 7. Learned Counsel for the respondent took me to the scheme of the Mamlatdar's Courts Act, 1906, to explain that the jurisdiction of the Civil Court is not taken away and this is more so in terms of Section 9 of the Code of Civil Procedure. To emphasize his point learned Counsel has placed reliance to the judgment of this Court reported in Rajendra Sheshrao Shendge V. Smt. Shobhatai S.Ravate and anr ( AIR 2007 Bombay 90) and also to the judgment of the Supreme Court in 4 CRA NO.126/2011 the matter of Ram Kanya Bai and Anr. V. Jagdish and others ( 2011 AIR SCW 4237) decided on 4th July, 2011. 8. Learned Counsel for the revisional applicant now reiterates that by virtue of Section 26 of the Mamlatdar's Courts Act, 1906, such suit would not be maintainable. Secondly, the principles of res judicata will be applicable to entertain the suit when there already operates an order in favour of the revisional applicant by the learned Mamlatdar ( Tehsildar). 9. The law on this point is explained and illustrated by the Hon'ble Apex Court in a three Judge Bench judgment in the matter of Ashok Leyland Ltd. Vs. State of Tamil Nadu and Anr) ( (2004) 3 SCC 1), and the Hon'ble Lordships have informed that res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, waiver or res judicata. In the instant case, the order of the learned Mamlatdar is sub judice before the learned Sub Divisional Officer in the appeal preferred by the 5 CRA NO.126/2011 present respondents as also the aggrieved respondents therein. The principles of res judicata, as canvassed by the revisional applicant, in the fact situation, would not be operating in the Civil Suit being RCS No.16/2011, as Plaintiffs assert attempt of encroachment in their land under guise of orders of Mamlatdar. Plaintiffs assert, said order is not binding to plaintiffs, as they were not heard by learned Mamlatdar. 10. The Hon'ble Supreme Court explained effect of Order VII Rule 11 of Code of Civil Procedure in the matter of Saleem Bhai And Ors. vs State Of Maharashtra And Ors. ( AIR 2003 SC 759). For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order VII C.P.C., the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The Hon'ble Lordships have observed, the pleadings and the documents annexed with the plaint basically need to be considered while dealing with the application under Order VII Rule 11 of C.P.C. 6 CRA NO.126/2011 11. Since this Court is required to deal with the plaint averments in RCS No.16/2011, reading the same I find, the plaintiffs therein unequivocally informed that they were not party in the proceedings before the Mamlatdar's Court and the decision in Wahiwat Case No.13/2010, even if decided, is subject to challenge before the Sub Divisional Officer. It is not that any declaration is sought in the said RCS No.16/2011 by the plaintiff. The plaintiff has asserted that the defendants in the suit shall not erect a road from western boundary mark of land Gat No. 2372 by themselves, their agents or employees and should not disturb the peaceful enjoyment and possession of the plaintiff. Thus, even if it was canvassed that the decision in Wahiwat Case No.13/2010 is sought to be not binding on the plaintiff, however, it is not so indicated in the prayer clause. Therefore, this assertion of the revisional applicant is to be turned down. 12. The pleading as a whole in the plaint in RCS No.16/2011 needs to be considered, wherein the plaintiff says, the defendants therein (Revision applicants) have illegally tried to obstruct the enjoyment of the plaintiff in land Gat No.2372 at western side by trying to erect a new access and the cause of action accrued on 5th Jan.,2011. Considering these features of the matter, it cannot be said that the spectrum of 7 CRA NO.126/2011 the plaint in RCS No.16/2011 is shrouded by cloud of legal impediment and require to be rejected in terms of Order VII Rule 11 of Code of Civil Procedure. The remedy available to the plaintiff by way of suit to get their rights adjudicated cannot be taken away even if proceedings are initiated by the revisional applicant before the Mamlatdar under the Mamlatdar's Courts Act, 1906. 13. The jurisdiction of the Civil Court was again considered by this Court in the matter of Vishwanath Rambhaji Bhalerao and anr Vs. Usha Pralhad Kasbe ( 2011 (3) Bom.C.R. 322) and this Court has observed, as regards filing of civil suit, bar of Section 26 of the Mamlatdar's Courts Act, 1906, is not applicable. It will not take away jurisdiction of the civil Court in respect of matters covered under Section 26(b) prior to institution of proceedings under the Act. 14. Section 26, is quite clear. 26. No suit shall lie under this Act, - "(a) ... ... (b) in respect of any removal of any impediment or of any dispossession, recovery of possession or disturbance of possession, that has been the subject of previous proceedings, to which the plaintiff or his predecessor in interest was a party, under this Act, or in a Civil Court or under Chapter XII of the Code of Criminal Procedure, 1898. " 8 CRA NO.126/2011 Section 26 creates a bar in filing suit under Mamlatdars Courts Act if already remedies are availed. It does not take away rights of filing suit. 15. The proceedings in the present case were under Section 5 of the Act which were initiated prior to civil suit and, consequently, the recourse taken by the plaintiff of filing RCS No. 16/2011 will not take away rights vested in the plaintiff to file civil suit. 16. No error in the order. Civil Revision Application lacks merit, dismissed. 17. Heard. Mr.N.V.Gaware has requested to stay the suit, however, the proceeding in RCS No. 16/2011 does not cause any impediment in the Rasta case initiated by the revisional applicant nor there is any injunction against the revisional applicant in RCS No.16/2011. (K.U.CHANDIWAL) JUDGE ... agp/126-11cra 9 CRA NO.126/2011