1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5556 OF 2009 Dharba s/o Shamrao Harnule Age: 60 Yrs., occu. Agril. r/o Devangra-wadi, Tq. Chakur, District Latur. - PETITIONER (orig.plaintiff) VERSUS 1) The Government of Maharashtra, Through the Collector, Latur. 2) Mudrikabai w/o Ramrao Harnule, Age: 60 Yrs., occu. Household, R/o Devangra-wadi, Tq. Chakur, District Latur. 3) Chandrakalabai w/o Shivaji Kisway, Age: 40 Yrs., occu. Household, r/o Khobre Brick Factory, Kallam Road, Latur. 4) Meerabai w/o Ram Kale, Age: 35 Yrs., occu. Household, r/o as above. 5) Raosaheb s/o Yeshwant Lavate Age: 53 Yrs., occu. Agril. r/o Devangrawadi, Tq. Chakur, District Latur. - RESPONDENTS ***** Mr.Murar V.Deshpande,Advocate for Petitioner; Mr.D.R.Kale,AGP for Respondent no.1; Mr.D.S.Mali,Adv. h/for Mr.SB Talekar, Advocate for Respondent Nos.2 to 5. ----- 2 CORAM : R.K.DESHPANDE, J. DATE : 10th June, 2010. ORAL JUDGMENT : 1) This writ petition challenges the order dated 31.7.2007 passed by learned Joint Civil Judge, Senior Division Latur below Exhibit-47 in RCS No.475 of 2006 and the order dated 7.2.2009 passed by the learned District Judge, Latur on Misc. C.A.No.52/2007. The learned Civil Judge, Senior Division, Latur by the order dated 31.7.2007 returned the plaint to the plaintiff for its presentation before the appropriate Court. The learned District Judge by his order dated 7.2.2009 dismissed Misc. C.A.No.52/2007 filed by the plaintiff and maintained the order passed by the Trial Court. Hence, this writ petition at the instance of the plaintiff, challenging the orders passed by the courts below. 2) Notice in the matter was issued on 25th August, 2009, in response to which, Shri Mali, learned Counsel holding for Shri S.B.Talekar, learned Counsel for the Respondent nos. 2 to 5 appears. Learned AGP appears for Respondent no. 1-State. 3 3) Learned Counsel for the parties agree that the matter can be finally disposed of at this stage. Hence, Rule, returnable forthwith by consent of parties. 4) The petitioner/plaintiff had filed Regular Civil Suit No.475/2006 for directions to the Respondent no.1-State of Maharashtra to delete the names of defendants nos. 2 to 4 from Block No.3, situated at village Devangrawadi, Tq. Chakur District Latur. The further relief of declaration was also claimed that the sale-deed executed in favour of defendant no.5 be declared as null and void and relief of permanent injunction was also sought for. The suit was filed before the learned Civil Judge, Senior Division as the State of Maharashtra was arrayed as defendant no.1 in the said suit. 5) The defendant nos. 2 to 5 have filed an application under Order VII Rule 11(a) to (d) read with Section 151 of CPC, seeking return of plaint to the plaintiff for its presentation in the proper court, as according to the defendant, the Government of Maharashtra was impleaded as defendant no.1 only with a view to bring the suit within the jurisdiction of the Civil Judge, Senior Division and to avoid jurisdiction of the Civil Judge, Junior Division. 4 6) The Trial Court, pursuant to application (Exhibit-47) framed a preliminary issue as to whether the Court has jurisdiction to entertain and try the suit, as alleged by the defendants nos. 2 to 5 under Order VII Rule 11 of CPC. The application (Exhibit-47) was allowed by an order dated 31.7.2007 holding that Civil Judge, Senior Division has no jurisdiction to entertain and try the suit and consequently, the plaint was returned to the plaintiff for presentation before proper forum as per the provisions of Order VII Rule 10 of CPC. 7) The plaintiff/petitioner carried this order dated 31.7.2007 in an appeal by filing Misc. Civil Appeal No.52/2007, before the learned District Judge. The learned District Judge, Latur, by his order dated 7.2.2009 dismissed the said Misc. C.A.No.52/2007 and maintained the order passed by the trial Court on 31.7.2007. Hence, this writ petition by the original plaintiff. 8) Shri Deshpande, the learned Counsel for the petitioner, relying upon the provisions of Section 32 of the Bombay Civil Courts Act, 1869 (hereinafter to be referred as the said Act), has urged that, when the State of Maharashtra is made a party/defendant to the suit, it will be 5 exclusive jurisdiction of the Civil Judge, Senior Division to entertain, try and decide the said suit. According to him, the Government of Maharashtra is joined as defendant no.1 in the suit and the relief is also claimed against the defendant no.1, seeking directions to delete the names of Defendant nos. 2 to 4 from Block No. 3, situated at village Devangrawadi, Tq. Chakur, District Latur, from 7/12 extract. According to him, the courts below have committed an error in holding that the State Government has been wrongly joined as defendant in the suit. According to him, the plaintiff is the dominus litis and it is for him to decide as to whom he should join as party to the suit and against whom and what sort of reliefs are to be claimed. The jurisdiction of the Civil court would depend upon the averments made in the plaint. The Courts below have committed an error in ignoring the averments made in the plaint and the parties added in the plaint. 9) As against this submission, Shri Mali, the learned Counsel holding for Shri Talekar, appearing for Respondent nos. 2 to 5, has urged that the trial court has, after relying upon the decision of this Court reported in 2004 (3) ALL MR 880 - ( Narayan Mugu Teli (since deceased ) Vs. Ramchandra Mugu Teli & Ors., rightly held 6 that the relief claimed against the State Government by the plaintiff to delete the names of defendant nos. 2 to 5, cannot be granted and hence, the joining of the Government of Maharashtra as a party defendant no.1 was only with a view to retain the litigation in the court of Civil Judge, Senior Division. He further submits that the revisional court has also affirmed the view taken by the trial Court and, therefore, no interference is called for by this court in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution of India. 10) The undisputed factual position is, that the Government of Maharashtra has been joined as party defendant no.1 in the civil suit. The averments made in para no.6 are as under : “6. That, the area acquired by the State for the construction of the Devengrwadi tank has not been deleted from 7/12 extract, therefore, the entry continued years together in the name of defendant no.2 to 4 as the land of the defendant to the extent of 2 Acre 8 gunthas, of the defendant has been acquired, therefore, defendant remain in possession of 2 acre only. That, the defendant no. 2 to 4 has sold 50 R. to Babruwan Padila; 20 R. to the plaintiff and 30 R. to plaintiff and his real brother 7 Trimbak and 20 R. to the Trimbak Thus, in all, 3 acres has been sold by registered sale-deed by defendant no.2 to 4 therefore, nothing agricultural land remain in the name of defendant no. 2 to 4.” Prayer clause (i) in the said suit quoted as under : “(i) That, the defendant no.1 be kindly directed to delete the names of defendants nos. 2 to 4 from Block No.3, situated at village Devangarawadi, Tq. Chakur, District Latur, from 7/12 extract.” 11) In view of this factual position,Section 32 of the said Act needs to be looked into, which is also reproduced as under : “32. (1) No subordinate Court other than the Court of a Civil Judge (Senior Division) and no court of small causes shall receive or register any suit in which the Crown or any office of the Government in his official capacity is a party. (2) In every such case the Plaintiff shall be referred to Court of the Civil Judge, (Senior Division) and such suit shall be instituted only in the Court of Civil Judge, (Senior Division) and shall be heard by such Civil Judge, subject to the provisions of Section 24 of the Code of Civil Procedure, 1908. (3) Nothing in this section shall be deemed to apply to a suit against the administration of a Government Railway; or to apply to any suit 8 merely because an officer of the Government is a party thereto, in his capacity of, - (a) member of local authority; (b) curator, guardian, manager or representative of a private person or estate in virtue of an appointment, delegation, declaration or exercise of powers under :- (i) Order 32, rule 4(4) of the Code of Civil Procedure, 1908; (ii)Section 69 or 71 f the Indian Lunary Act, 1912; (iii)Section 7, 18 or 42 of the Guardians and Wards Act, 1890; (iv) Section 1 or 17 of the Ahmedabad Talukadars Act, 1862l (v) Section 3, 19(1), 19(2), 20, 22(1) or 41(1) of the Bombay Courts of Wards Act, 1905).” 12) Bare perusal of Section 32(1) and (2) reveal that where any officer of the State Government is joined as a party to the suit in his official capacity, the suit has to be tried by the Civil Judge, Senior Division. There is no finding recorded by the Courts below that the case of the plaintiff falls in any of the exceptions stated in sub-section (3) of Section 32 of the said Act. The plaintiff is the dominus litis and it is for him to decide as to whom he should join as a party defendant to the suit and against whom and what relief he should claim. The Court cannot go behind the averments/claim made in the plaint to find out the intention of the plaintiff to join the State Government as a party 9 defendant, while deciding the issue of jurisdiction. The plaintiff has made averment in respect of relief claimed against respondent no.1 – State Government. In view of this, the court of Civil Judge, Senior Division will have jurisdiction to entertain, try and decide the suit. 13) The observations made by this Court in the aforesaid reported judgment (cited supra), relied upon by the learned Counsel for the respondents/defendants, were not made in the proceedings arising out of the application made under Order VII Rule 11(a) to (d) of C.P.C. The question was whether there was any propriety and justification for claiming the relief against the State Government to delete the names of the defendants from 7/12 extract. This Court has held that, it is neither the function nor the jurisdiction of civil court to issue direction for making or deleting entries in the record of rights, the function is assigned to the revenue authorities under the Maharashtra Land Revenue Code and once the declaration is granted in regard to the title of the land, the revenue authorities would be bound to make corrections and alterations in accordance with such declaration. In my view, the question, whether such a relief can be granted by the civil court 10 or not, as claimed by the plaintiff in the instant case in prayer clause (i) would be altogether different matter and the Court may ultimately, if it is found that it has no jurisdiction, refuse to grant such relief. The said judgment is, therefore, of no avail to the defendants. 14) The learned Counsel for the respondent nos. 2 to 5 submits that the Government of Maharashtra has been wrongly arrayed as defendant no.1 and it is a case of mis-joinder of party. However, no such application, as contemplated by order I Rule 10(2) of CPC has been filed. Any such order, if at all can be made, would only be subject matter of Order I Rule 10(2) of CPC. Such exercise has not been carried out.. The learned Counsel, therefore, submits that the defendants should be granted liberty to file such application before the trial Court. Needless to say that, it is always open for the parties to file such application and the Court shall decide it in accordance with law. 15) In the result, the instant writ petition succeeds. The impugned order dated 31.7.2007, passed by the learned Civil Judge, Senior Division, Latur in RCS No.475/2006, returning the plaint to the plaintiff for its presentation 11 before the proper forum, is hereby quashed and set aside. Similarly, the order dated 7.2.2009, passed by the learned District Judge, Latur, dismissing the Misc. Civil Appeal No.52/2007 is also quashed and set aside. The application (Exhibit-47) filed by the defendant nos. 2 to 5 for dismissal/return of the plaint to the plaintiff under Order VII Rule 11-A read with Section 151 of CPC, is rejected. It will, however, be open for the defendant nos. 2 to 5 to file appropriate application, if they so desire, under Order 1 Rule 10(2) of CPC, which shall be decided by the trial Court in accordance with law and uninfluenced by any of the observations made by this Court in this judgment. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. sd/- (R.K.DESHPANDE) JUDGE bdv/p/wp5556.09 Authenticated copy (BD VADNERE,PS)