M. P. THAKKAR, J. ( 1 ) ). . . . . . . . . . . . . ( 2 ) THE question posed is whether the jurisdiction of the Civil Court to grant an interim order as regards possession in relation to agricultural lands is ousted by reason of clause (nb) of sec. 70 read with sec. 85 of the Bombay Tenancy and Agricultural Lands Act of 1948 here inafter called the Act. ( 3 ) CLAUSE (nb) was introduced in sec. 70 of the Act by Gujarat Act V of 1973. Before the introduction of the said provision it was well settled for more than 7 or 8 years that a Civil Court had jurisdiction to pass appropriate interim orders in pending suits as regards possession even in cases where one of the parties claimed to be a tenant. This point was urged at length before J. B. Mehta J. in C. R. A. No. 273 of 1967 (Parmar Misrikhan v. Damaji Virji Gaman) and it was decided therein that a Civil Court had undoubted jurisdiction to pass appropriate interim orders as regards possession notwithstanding the fact that one of the parties to the suit claimed to be a tenant. It was argued before J. B. Mehta J. that having regard to the observations made by M. R. Mody J. in Mohan Moti v. Indravadan 4 G. L. R. 387 at page 394 the Civil Court had no jurisdiction to grant interim orders in such matters. After quoting the ralevant passage from the decision in Mohan Motis Case (supra) J. B. Mehta J. has observed as under :mr. Sheth strongly relied upon this paragraph to urge that it is Dot open to the Civil Court to consider even a prima facie case when this issue of tenancy is involved which can be decided only by the competent authorities under the Act. We do not agree with Mr. Sheths reading of this decision of Mr. Justice Mody. Sheth strongly relied upon this paragraph to urge that it is Dot open to the Civil Court to consider even a prima facie case when this issue of tenancy is involved which can be decided only by the competent authorities under the Act. We do not agree with Mr. Sheths reading of this decision of Mr. Justice Mody. The short question which Mody J. had to deal with was whether a prima facie case was necessary to be proved before a reference was to be made to the competent authorities under the Act and his answer was that as soon as a plea was raised about the tenancy the question was exclusively within the jurisdiction of the competent authorities under the Act and a civil Court had no jurisdiction. It is in this context that Mody J. emphasised this aspect that it was mere raising of this plea which excluded jurirsdiction of the Civil Court to determine such an issue and it was not open to the Civil Court to go into the question whether there was any prima facie case or that the contention was rightly or wrongly raised. That view of Mody J. was clearly based on the interpretation of the aforesaid Dhondi Tukarams case and is clearly as per the settled law on this question. The question before me is not however as to when the reference ought to be made. There can be no dispute that once that plea is raised the Civil Court would have to refer this question for determination to the competent authority under the Act. What Mr. Sheth contends is that the civil Courts jurisdiction is excluded even for granting an interlocutory relief. In fact the entire approach of Mr. Sheth in this connection is wholly misconceived. The civil Court while considering the question of an interim injunction had only to consider a prima facie case alongwith the other relevant factors of balance of convenience etc. for exercising its discretion in passing this interlocutory order It was for this limited purpose that the civil Court bad gone into the question as to who was prima facie in possession. Both the Courts found that actual physical possession prima facie was with the plaintiff and the plaintiff having a prima facie case and as balance of convenience was in his favour he was threatened with irreparable loss unless interim relief was granted. Both the Courts found that actual physical possession prima facie was with the plaintiff and the plaintiff having a prima facie case and as balance of convenience was in his favour he was threatened with irreparable loss unless interim relief was granted. All the observations which the lower Court has made are only from that limited consideration and the Civil Court never purported to decide the question of tenancy Mr. Sheth argued that the factum of possession was one of the fact in issue for determining the issue of tenancy and once the Legislature left the issue of tenancy to the Civil Court this incidental finding must also be left to the Civil Court. There can be no dispute that for the purpose of determining the issue of tenancy the finding will have to be reached by the competent authority under the Act on all the ingredients of definition of a tenant In the present case the Civil Court had not arrived at any decision on the controversy but for granting interim relief it had only arrived at a tentative conclusion as to who was prima facie in possession. Such a consideration of a prima facie case even though it may be based on affidavits and the documentary evidence before the Court can never be equated with the process of determination of an issue of tenancy. Therefore there is no substance in the contention of Mr. Sheth that the lower Court had no jurisdiction to pass the present interim order. even the learned counsel for the petitioner who contends that the jurisdiction of the Civil Court has been ousted by virtue of the introduction of clause (nb) in sec. 70 does not dispute the proposition affirmed in the aforesaid decision which reflects the true position of law. ( 4 ) THE narrow question which arises under the circumstances is whether any alteration in the prevailing law has been brought about by reason of the introduction of clause (nb) of sec. 70 of the Act which has been inserted by Gujarat Act No. 5 of 1973. In order to understand the argument and the various dimensions of the matter sec. 70 of the Act which has been inserted by Gujarat Act No. 5 of 1973. In order to understand the argument and the various dimensions of the matter sec. 70 may be quoted in extenso :-70 For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar : (A) to decide whether a person is an agriculturist; (B) to decide whether a person is or was a tenant or a protected tenant or a permanent tenant; (C) to determine the rates of rent under sec. 9a; (D) to decide dispute regarding class of land under sec. 9a; (F) to determine the amount of compensation under sec. 10 for the contravention of secs. 8 9 9 and 9c; (H) to determine the amount to be refunded to a tenant under sec. 13 (5); (I) to determine the amount of compensation for trees to which a tenant is entitled under sec 19; (J) to determine any dispute regarding the right to produce of trees naturally growing under sec. 20; (K) to determine the costs of repairing protective bunds under sec. 23; (L) to sanction exchange of tenancies under sec. 33; (M) to determine the amount of compensation payable to tenant for any improvement under sec. 41; (MA) to determine what is reasonable rent under sec. 43b; (MB) to issue a certificate under sec. 84a and decide under sec. 84b or 84c whether a transfer or acquisition of land is invalid and to dispose of land as provided in sec. 84c; (MC) to decide references under sec. 85as (MD) to decide any dispute under sec. 88c; (N) to take measures for putting the tenant or landlord or the agricultural labourer or artisan or person carrying on an allied pursuit into the possession of the land or dwelling house under this Act; (NA) to decide all relating to the construction of water course under Chapter V-A; (NB) to issue temporary injunction; (O) to decide such other matters as may be referred to him by or under this Act. 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 8rant any interim orders. 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 8rant any interim orders. At this juncture 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 ligitation. 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 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. Evidence has to be recorded arguments have to be heard and a finding has to 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 B temporary injunction co-terminus with the conclusion of the proceeding in the Court concerned is conferred on a Civil Court or Revenue Court. A glance at sec. 70 will show that several duties and functions are required to be performed by a Mamlatdar. The ancilliary and the supplementary power for issuing temporary injunction can be exercised only in relation to a proceeding which is pending before the Tenancy Court. Obviously it cannot be exercised in relation to a civil suit pending in a civil suit. The argument of the learned counsel for the petitioners is that as soon as one of the parties to the suit asserts that he is a tenant the Civil Court is bound to refer the question as regards temporary injunction to the Tenancy Court. It is not disputed that a Civil Court would have the power in any event to grant an exparte injunction in order to preserve the status quo or to protect the rights of the plaintiff. At that stage the question of an alleged tenancy may not at all arise. Even so according to the counsel for the petitioners as soon as the defendant appears and claims the status of a tenant the Civil Court would be powerless to pass any order in regard to interim injunction thereafter. It is argued that thereafter the question would have to be referred to a Tenancy Court. According to counsel for the petitioners it is the Tenancy Court which alone can either con firm the interim order or vacate the interim order. In other words according to the petitioners after granting an ex parte injunction the Civil Court will become functus officio and it will be the Mamlatdar who will be either confirming the injunction or vacating the injunction. The agreement is so untenable that it is not necessary to demonstrate that it is altogether without substance. Surely an order passed by a Civil Court cannot be vacated by a Revenue Court. The agreement is so untenable that it is not necessary to demonstrate that it is altogether without substance. Surely an order passed by a Civil Court cannot be vacated by a Revenue Court. 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 a 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 of 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 8rant 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. [ The rest of the judgment not material for the Report ]applications disposed of on merits. .