Premlata @ Sunita vs Naseeb Bee

CIVIL APPEAL NOS.2055­2056 OF 2022

Premlata @ Sunita ..Appellant

Versus

Naseeb Bee & Ors. ..Respondents

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 27.11.2019 passed by the High

Court of Madhya Pradesh at Jabalpur in Civil Revision

Application No.385 of 2019 by which the High Court has Signature Not Verified Digitally signed by R Natarajan Date: 2022.03.23 16:01:08 IST allowed the said Revision Application and has quashed and Reason:

set aside the order passed by the learned trial Court

1 dismissing the application under Order 7 Rule 11 of Code of

Civil Procedure, 1908 (hereinafter referred to as ‘CPC’)

preferred by the respondents herein – original defendants

and consequently allowed the said application under Order

7 Rule 11 CPC and has rejected the plaint on the ground

that the suit would be barred under the provisions of

Section 257 of M.P. Land Revenue Code, 1959 (hereinafter

referred to as the ‘MPLRC’), the original plaintiff has

preferred the present appeal.

2. The facts leading to the present appeals in nutshell are

as under:

2.1 That the appellant herein – original plaintiff initially

filed the original proceedings before the Revenue

Authority/Tehsildar under Section 250 of MPLRC. The

respondents herein ­ original defendants raised the

objection against the maintainability of the application

under Section 250 of the MPLRC and the jurisdiction of the

Revenue Authority/Tehsildar. The Tehsildar rejected the

said application accepting the objection raised on behalf of

the respondents and held that as the question involved in

2 the matter relates to title, hence provisions under Section

250 of the MPLRC shall not be attracted. Thereafter the

appellant herein preferred an appeal before the SDO under

Section 44 of the MPLRC challenging the order passed by

the Tehsildar. However, during the pendency of the said

appeal, the appellant filed the present suit before the

learned trial Court for recovery of the possession and

injunction. Having been served with the notice of the suit,

the respondents – defendants filed an application under

Order 7 Rule 11 CPC and requested to reject the plaint on

the ground that the suit before the Civil Court would be

barred considering Section 257 of the MPLRC. The learned

Civil Court rejected the said application and refused to

reject the plaint in exercise of powers under Order 7 Rule 11

CPC. Against the said rejection the respondents –

defendants preferred Civil Revision Application No.385 of

2019 before the High Court.

2.2 By the impugned judgment and order the High Court

has allowed the revision application and has set aside the

order passed by the learned trial Court and consequently

3 has allowed the application under Order 7 Rule 11 CPC and

has rejected the plaint by holding that in view of Section

257 of the MPLRC the jurisdiction of the Civil Court is

barred.

2.3 That as during the pendency of the revision application

the appeal filed by the plaintiff rejecting application under

Section 250 of the MPLRC came to be dismissed which was

not pointed out at the time of final hearing of the revision

application by the High Court, the appellant herein filed a

review application before the High Court. The said review

application has been dismissed.

2.4 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court in Civil

Revision Application No.385 of 2019 and also the order

passed in Review Petition No.725 of 2020, the original

plaintiff has preferred the present appeals.

3. We have heard learned counsel for the respective

parties at length.

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4. At the outset, it is required to be noted and it is not in

dispute that the plaintiff instituted the proceedings before

the Revenue Authority under Section 250 of the MPLRC.

These very defendants raised an objection before the

Revenue Authority that the Revenue Authority has no

jurisdiction to deal with the matter. The Tehsildar accepted

the said objection and dismissed the application under

Section 250 of the MPLRC by holding that as the dispute is

with respect to title the Revenue Authority would not have

any jurisdiction under MPLRC. The said order passed by

the Tehsildar has been affirmed by the Appellate Authority

(of course during the pendency of the revision application

before the High Court). That after the Tehsildar passed an

order rejecting the application under Section 250 of the

MPLRC on the ground that the Revenue Authority would

have no jurisdiction, which was on the objection raised by

the respondents herein – original defendants, the plaintiff

instituted a suit before the Civil Court. Before the Civil

Court the respondents – original defendants just took a

contrary stand than which was taken by them before the

Revenue Authority and before the Civil Court the

5 respondents took the objection that the Civil Court would

have no jurisdiction to entertain the suit. The respondents

– original defendants cannot be permitted to take two

contradictory stands before two different authorities/courts.

They cannot be permitted to approbate and reprobate once

the objection raised on behalf of the original defendants that

the Revenue Authority would have no jurisdiction came to

be accepted by the Revenue Authority/Tehsildar and the

proceedings under Section 250 of the MPLRC came to be

dismissed and thereafter when the plaintiff instituted a suit

before the Civil Court it was not open for the respondents –

original defendants thereafter to take an objection that the

suit before the Civil Court would also be barred in view of

Section 257 of the MPLRC. If the submission on behalf of

the respondents – defendants is accepted in that case the

original plaintiff would be remediless. The High Court has

not at all appreciated the fact that when the appellant –

original plaintiff approached the Revenue

Authority/Tehsildar he was non­suited on the ground that

Revenue Authority/Tehsildar had no jurisdiction to decide

the dispute with respect to title to the suit property.

6 Thereafter when the suit was filed and the respondents ­

defendants took a contrary stand that even the civil suit

would be barred. In that case the original plaintiff would be

remediless. In any case the respondents – original

defendants cannot be permitted to approbate and reprobate

and to take just a contrary stand than taken before the

Revenue Authority. Therefore, in the facts and

circumstances of the case, the learned trial Court rightly

rejected the application under Order 7 Rule 11 CPC and

rightly refused to reject the plaint. The High Court has

committed a grave error in allowing the application under

Order 7 Rule 11 CPC and rejecting the plaint on the ground

that the suit would be barred in view of Section 257 of the

MPLRC. The impugned judgment and order passed by the

High Court is unsustainable and is liable to be set aside.

5. In view of the above and for the reasons stated above,

the present appeals succeed. The impugned judgment and

order passed by the High Court dated 27.11.2019 in Civil

Revision Application No.385 of 2019 allowing the same and

setting aside the order passed by the learned trial Court and

7 consequently rejecting the plaint under Order 7 Rule 11

CPC is hereby quashed and set aside. The order passed by

the learned trial Court rejecting the application under Order

7 Rule 11 CPC is hereby restored and the suit is restored on

the file of the learned trial Court. Now the suit to be

proceeded further in accordance with law and on its own

merits.

Present appeals are accordingly allowed. In the facts

and circumstances of the case there shall be no orders as to

costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (B. V. NAGARATHNA) New Delhi, March 23, 2022

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