IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 127/1999 Decided on:23.12.2008 Hari Krishan. …Appellant. Versus Lekh Ram and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.no For the Appellant : Mr. S.S. Mittal, Senior Advocate with Mr. Devraj Dev, Advocate. For the Respondents : Mr. R.P. Singh, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 2.7.1998 passed by the learned District Judge, Solan in Civil Appeal No. 17-NL/13 of 1996. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for declaration to the effect that sale deed dated 9.8.1991 of his 1/3rd share of the land measuring 18 bighas 18 biswas out of the total land measuring 56 bighas 15 biswas comprised in Khewat/Khatauni No. 9/20 bearing Khasra No. 80, 83, 85, 1 Whether the reporters of Local Papers may be allowed to see the judgment?no 2 86, 88, 92 and 94 kita 7 situate in village Jhamrari HB No. 385, Tehsil Nalagarh, District Solan is illegal, null and void and for injunction prohibiting the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) from taking possession of the suit land and in the alternative for mandatory injunction. The plaintiff has taken the loan amounting to Rs. 10,000/- under low income housing scheme for construction of a house in the year 1978. He was not able to repay the loan. He received a notice in the month of March, 1991 demanding a sum of Rs. 11,885/- from him. He requested the Tehsildar, Nalagarh to recover this amount in installments but his request was not considered and proclamation of sale of the suit land was put in the month of June, 1991. He tendered Rs. 5,000/- to the Tehsildar as part of the payment of the loan, which was not accepted and he proceeded to sell the suit land on 22.7.1991. The sale was postponed and ultimately, the suit land was sold by auction on 9.8.1991 without issuing fresh proclamation. The defendants purchased the land in the open auction. The suit was resisted by the defendants. The trial court dismissed the suit on 31.1.1996 primarily on the ground that the civil court had no jurisdiction in view of the specific bar put under section 171 (1) and (2)( (XV) of the Himachal Pradesh Land Revenue Act, 1953. The plaintiff preferred an appeal before the learned District Judge, Solan. The same was dismissed on 2.7.1998. This Regular Second Appeal was admitted on the following substantial question of law: 1. Whether the jurisdiction of the civil court is barred by section 171 (2) (XV) of the Land Revenue Act to entertain the suit more particularly when there is alternative remedy under the Act itself to the parties to vindicate their grievances arising in the present case? 3 Mr. S.S. Mittal, Senior Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable. According to him, the auction dated 9.8.1991 was in violation of section 99 of the Himachal Pradesh Land Revenue Act, 1953. Mr. R.P. Singh, Advocate has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. Mr. S.S. Mittal has strenuously argued that initially the sale was fixed on 22.7.1991. His client had offered to repay the loan by way of installments. His prayer was turned down by the Tehsildar. The sale was postponed for 9.8.1991. He further submitted that no fresh proclamation was issued by the Collector for sale of the disputed land on 9.8.1991. This position is not disputed by Mr. R.P. Singh as well. It was necessary for the Collector to issue fresh proclamation before the auction dated 9.8.1991. The plaintiff has been non-suited only on the ground that he should have approached the Commissioner under section 96 of the Himachal Pradesh Land Revenue Act, 1953 for setting aside the sale effected on 9.8.1991. Mr. S.S. Mittal has relied upon Dhruv Green Field Limited versus Hukam Singh and others, (2002) 6 SCC 416. Their Lordships of the Hon’ble Supreme Court in (2002) 6 SCC 416 have held that the jurisdiction of the civil court would be retained despite express or implied bar, if the order or action complained of is a nullity. Their Lordships have held as under: “In the light of the above discussion, the following principles may be re-stated- (1) If there is express provision in any Special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded. 4 (2) If there is no express provision in the Act but an examination of the provisions contained therein lead to a conclusion in regard to exclusion of jurisdiction of a civil court, the Court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of civil court cannot be inferred. (3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity.” However, during the course of hearing, both the learned counsel appearing on behalf of the parties submitted that the plaintiff can be permitted to file an appeal at this stage also before the Commissioner under section 96 of the Himachal Pradesh Land Revenue Act, 1953 in the interest of justice. The only hurdle for preferring the appeal against the sale dated 9.8.1991 is the limitation under section 99 of the Himachal Pradesh Land Revenue Act, 1953. Mr. R.P. Singh very very fairly submitted that his clients will not take any objection with regard to the limitation if the plaintiff chooses to file the appeal before the Commissioner within a period of four weeks from today. In view of the fair stand taken by both the learned counsel, this Court has not gone into the wider question whether the suit was maintainable in view of bar under section 171 (1) and (2)( (XV) of the Himachal Pradesh Land Revenue Act, 1953. Accordingly, in view of the observations made hereinabove, the judgments and decrees passed by both the courts below are upheld, 5 however, the plaintiff is permitted to file the appeal before the learned Commissioner within a period of four weeks from today. The Commissioner will decide the appeal within a period of three months from the date of filing the appeal after hearing the parties. The Commissioner will decide the lis on merit in view of the categorical undertaking given by Mr. R.P. Singh, Advocate that his clients will not raise the plea of limitation. The parties are directed to maintain status quo qua the suit land till the decision by the Commissioner. There will, however, be no order as to costs. 23.12. 2008 (Rajiv Sharma ), J. *awasthi*