SCA/1818/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1818 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SHABBIR SULEMAN GANGAT - Petitioner(s) Versus GULAM MOHMEDHUSSAIN GANGAT - Respondent(s) ========================================================= Appearance : MR MM SAIYED for Petitioner(s) : 1, MR KASHYAP R JOSHI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 12/02/2008 ORAL JUDGMENT Petitioner herein challenges an order dated 5th January 2007 passed by the learned Principal Civil Judge, Ankleshwar below Ex.13 in Regular Civil Suit SCA/1818/2007 2/8 JUDGMENT No.312/06. 2. The petitioner was the original plaintiff. He had instituted the said suit wherein the respondent was the defendant. The respondent filed application Ex.13 in the said suit and prayed that the defendant has raised an issue of tenancy and his claim for tenancy can be decided only by the Mamlatdar and ALT under section 70(b) of the Bombay Tenancy and Agricultural Lands Act. He therefore prayed that the Court should frame an issue in this respect and refer the same for decision of the Mamlatdar and ALT and only after the decision on the said issue, should the Court take up Ex.5 application for further hearing and disposal. It is on this application that the learned Judge passed the impugned order. He referred the question of tenancy of respondent to be decided by the Mamlatdar and ALT under section 70(b) of the Tenancy Act. Simultaneously, he provided that the suit shall stand stayed till the issue is decided by the Mamlatdar and ALT. 3. Appearing for the petitioner, learned advocate Shri Saiyed vehemently submitted that the learned Principal Civil Judge, Ankleshwar committed a grave error in not deciding Ex.5 application of the petitioner. It was contended that in view of the provisions contained in section 85A of the Tenancy Act, upon issue of tenancy being raised by a party, though the same is required to be referred to the SCA/1818/2007 3/8 JUDGMENT Tenancy Court and further suit may be stayed, the law does not debar the competent civil court from deciding the interim injunction application. He submitted that the issue is covered by the decisions of this Court. 4. On the other hand, learned advocate Shri Kashyap Joshi appearing for the respondent opposed the petition and submitted that in terms of section 85A of the Tenancy Act, once an issue of tenancy is raised by a party in civil proceedings, the same can be decided only by the Tenancy Court and until such decision is arrived at, civil proceedings must be stayed. He relied on certain decisions of the Apex Court, reference to which will be made at a later stage. 5. Having heard the learned advocates appearing for the parties, I find that the issue is squarely covered by the decisions of two learned Judges of this Court. In the case of Raijibhai Ramatubhi Gohel v. Khodabhai Giridharbhai Brambhatt, learned single Judge of this Court while deciding Civil Revision Application No.597 of 1974 on 27th August 1974, in terms held that even after addition of section 70(nb) in the Tenancy Act, empowering the Mamlatdar to issue a temporary injunction, the power of the Civil Court to decide temporary injunction application in a pending civil suit are not taken away. The learned Judge made the following observations: SCA/1818/2007 4/8 JUDGMENT “It is abundantly clear that before the introduction of clause (nb) by virtue of the amendment of 1973 a Tenancy Court exercising powers under the Act had no jurisdiction to grant any interim orders. At this junction it must be made clear that what is meant is that the Tenancy Court had no power to grant a temporary injunction during the pendency of any proceeding pending before the Tenancy Court. Evidently in order to remedy the situation and enable the Tenancy Court to issue temporary injunctions in appropriate cases the Legislature has amended the Act and has introduced clause (nb) which confers the power on a Tenancy Court to issue a temporary injunction. It is difficult to comprehend how the introduction of this clause in sec.70 can either expressly or by necessary implication oust the jurisdiction of a Civil Court which (it is not disputed even by the petitioners) the Civil Court doubtless possessed. Surely the power to issue temporary injunction conferred on a tenancy Court is referable only to the exercise of such power in the course of a proceeding pending before the Tenancy Court. By no stretch of imagination can it be contended that this power is referable to the question of issuing a temporary injunction by the Civil Court in a civil suit pending before it. The power to issue a temporary injunction is ancillary power conferred on the competent authority in order to enable it to preserve status quo during the pendency of a litigation. It does not resolve any question or issue with any finality. A temporary injunction is issued if a prima facie case is made out and if the balance of hardship is in favour of a party claiming such an injunction in order to preserve the status quo and in order to protect the rights of the parties during the pendency of the litigation. This power has been conferred for the obvious reason that a considerable time is likely to elapse before a Court can finally adjudicate upon the rights of the parties. Evidence has to be recorded arguments have to be heard and a finding has to SCA/1818/2007 5/8 JUDGMENT be recorded at the conclusion of the trial. That however does not mean that during the pendency of the trial the parties may be permitted to alter the status quo or to create a situation prejudicial to the other side. It is for this reason that the power to issue temporary injunction co-terminus with the conclusion of the proceeding in the Court concerned is conferred on a Civil Court or Revenue Court.” It was further observed that : “Besides there is no provision in the Tenancy Act for referring the question as to who is in possession to a Tenancy Court. It would have been different matter if one of the functions enumerated in sec.70 was to decide the question as to who is in possession on the date of the institution o f a suit. As sec.70 presently reads the question as regards the actual physical possession of a party on the date of the institution of a suit in Civil Court is not required to be decided by a Tenancy Court. The power conferred by clause (nb) which is merely an enabling provision is the power to grant interim injunction when there is a matter pending in a Tenancy court. It is not possible to read clause (nb) as conferring a power on the Tenancy Court to decide the question as regards the interim injunction in relation to a civil suit pending in a Civil Court. There is therefore no substance in the contention that the Civil Court has no jurisdiction to issue a temporary injunction in a matter where one of the parties claims the status of a tenant in regard to agricultural lands governed by the Tenancy Act.” This decision of the learned Judge was noted with approval in a subsequent decision also of the learned SCA/1818/2007 6/8 JUDGMENT single Judge of this Court in the case of Gordhanbhai Chhotabhai Patel v. Ramji Mandir, Ahmedabad Trust, 1975 GLR 1009, elaborately dealing with the provisions contained in the Civil Procedure Code and Bombay Tenancy and Agricultural Lands Act, the learned Judge came to the conclusion that despite presence of section 70(nb) of the Tenancy Act, and introduction of section 85A of the Tenancy Act, jurisdiction of the civil court to grant interim injunction is not ousted. In para 40 of the judgment, the learned Judge made the following observations: “40. I am therefore of the opinion that my learned Brother Thakker J has rightly reached the conclusion that by insertion of this clause (nb) in sec.70 of the Act the Mamlatdar is given enabling power to grant such interim injunction for preserving the status quo during the pendency of a validly instituted proceeding before him under the Tenancy Act and it does not oust the jurisdiction of the Civil Court to grant such interim relief in a validly instituted suit which the Civil Court is entitled to entertain. It is therefore not necessary to refer the question to a larger Bench. The question of law involved in all these four petitions is decided accordingly.” This issue, as rightly pointed out by the learned counsel for the petitioner, has also been considered by the Bombay High Court in the case of Marybai v. Ramnath, AIR 1988 Bombay 108, wherein a Division Bench of the Bombay High Court taking a similar view held that despite the introduction of section 85A in SCA/1818/2007 7/8 JUDGMENT the Tenancy Act, it is open for the civil court to grant interim injunction. 6. In view of the above legal position, I have no hesitation in coming to the conclusion that the learned Judge erred in refusing to decide Ex.5 application of the petitioner. 7. Decision in the case of Kanaksinh B. Parmar v. S.B.Makwana, 1995(2) GLR 1409 of the Apex Court did not deal with the question of jurisdiction of the civil court in granting interim injunction in a matter where an issue in a pending suit is referred to the Mamlatdar for its adjudication. The Apex Court observed that the combined effect of section 70, 85 and 85A of the Bombay Tenancy and Agricultural Lands Act,1948 is that the Civil Court is under a duty to refer the issue regarding alleged tenancy to the Mamlatdar and to stay the suit till the issue is decided. Similarly, in the case reported in AIR 1979 SC 653, also this issue was not directly involved. 8. Under the circumstances, by partly setting aside the impugned order, it is provided that the Trial Court shall decide the issue of Ex.5 application after hearing both sides. The direction for reference of the question of tenancy to the Mammatdar is, however, not disturbed. It is further clarified that the main suit shall be proceeded only after the Mamlatdar and ALT gives his opinion on the question of tenancy. I have not stated anything on SCA/1818/2007 8/8 JUDGMENT merits or demerits of the rival contentions in the Ex.5 application. With these directions, the petition is disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted. (Akil Kureshi, J.) (vjn)