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2006 DIGILAW 2757 (RAJ)

Bhairu Lal v. Arjun Lal

2006-09-18

AJAY RASTOGI

body2006
Judgment S.N. Jha, J.-This special appeal is directed against the order of the learned Single Judge dated 10.11.2005 allowing the writ petition of Respondent Nos. 1 to 3 with a direction to the Sub-Divisional Officer, Sambharlake to transfer the original file of the revenue suit titled-Arjun Lal & Ors. vs. Bhairu Lal & Ors., to the Civil Court viz., Civil Judge, Sambharlake. 2. The brief history of the case is that a suit came to be filed in the Civil Court by the respondents. The defendant appellant herein took objection about maintainability of the suit on the ground that the land being agricultural, a revenue suit should have been filed in the revenue Court. The dispute travelled upto this Court and a direction was issued to transfer the suit to the revenue Court. The suit was thereafter transferred to the Court of the Sub Divisional Officer, Sambharlake. The respondents later filed application to the effect that the nature of land had undergone change and it had become abadi (residential), and as such the revenue Court was not competent to decide the suit. Prayer was made to transfer the suit back to the civil Court. The prayer was rejected with observation that it is open to the respondents to approach the competent Court for transfer of the case. The respondents then, filed Writ Petition No 2337/2004 in this Court which was allowed in the manner indicated above. 3. Shri Kamlesh Pareek, Counsel for the appellant submitted that the maintainability of the suit is determined with reference to the state of affairs existing on the date of its filing and, therefore, any change in the nature of land not be a relevant ground to transfer the proceeding. Counsel submitted that there is no provision in the Rajasthan Tenancy Act or the Code of Civil Procedure for transfer of the proceedings from the revenue Court to the civil Court or vice-versa. 4. Counsel for the respondent firstly relied upon order of this Court in the earlier writ petition whereunder the suit had been transferred from the civil Court to revenue Court. He submitted that the revenue Court has jurisdiction to decide the suit with respect to agricultural land and the land in question no more being agricultural, the Court was denuded of its jurisdiction to deice the suit. He submitted that the revenue Court has jurisdiction to decide the suit with respect to agricultural land and the land in question no more being agricultural, the Court was denuded of its jurisdiction to deice the suit. It was submitted that even if the respondents were to secure a favourable decide in the suit they would not be able to execute the decree as the decree would be incompetent and void ab initio. Reference in support of contention was made to Kiran Singh & Ors. vs. Chaman Paswan & Ors., AIR 1954 SC 340 . 5. As proposition of law there can be no dispute that a decree which is void cannot be executed and its executability can be challenged at any stage. However, we wonder, if the plea as to validity of the decree or competence of the Court and maintainability of the suit can be taken by the plaintiff-decree holder. The plaintiff , as is sometimes said, is the dominus litus; it is he who guides the course of the suit and it is open to him to withdraw the suit if he thinks that suit is not maintainable in the particular Court. 6. Counsel for the respondents submitted that pursuant to the impugned order of this Court the Presiding Officer of the revenue Court has already transferred the suit to the civil Court on 211.2005. It was stated that this appeal was filed later, after the suit already stood transferred. The submission does not cut any ice. If the Court had no jurisdiction to transfer the suit, any action or order passed in that regard would be illegal and void, and, therefore, the fact that the suit stands transferred is of no consequence. We are conscious of the fact that Court can take note of subsequent events but they can be taken into consideration for the purpose of granting or denying relief on the principle contained in Order VII Rule 7 of the Code of Civil Procedure. So far as maintainability is concerned, it has to be decided with reference to the facts and cause of action existing on the date of filing, and in this regard we are in complete agreement with the Counsel for the appellant. 7. Counsel for the respondents then submitted that direction may be issued for return of the plaint under Order VII Rule 10, CPC. 7. Counsel for the respondents then submitted that direction may be issued for return of the plaint under Order VII Rule 10, CPC. In this regard reliance was placed on Panna vs. India, 1963 RLW 190, While the plaint can be returned at any time in terms of Rule 10 of Order VII of the Code of Civil Procedure, we have grave doubts if such return can be allowed by the revenue Court for presentation in the civil Court or vice-versa. We are of the view that return of the plaint can be allowed by the revenue Court to enable the plaintiff to present the same in the competent revenue Court and likewise, return can be allowed by the civil Court for proper presentation in the competent civil Court as the case may be. 8. In the above premises we are unable to sustain the order of the learned Single Judge which is accordingly set aside. 9. Needless to say that any consequential action as such transfer of the file/proceeding to the civil Court would be of no consequence and the file will be resent to the Court of Sub Divisional Officer, Sambharlake. As observed above, it is open to the respondents to withdraw the suit and file it in the competent civil Court. 10. Appeal is allowed.