Inder vs Gurdit Singh

H.R. Sodhi, J.—This reference raising a question of jurisdiction has been made to this Court u/s 99 of the Punjab Tenancy Act. (Act XVI of 1887), hereinafter called the Act. Facts that led to the reference are not in controversy,

Inder claimed that he had worked as a Sanjhi (partner) in cultivation with the Defendant for some harvest but was not paid his share of 1/5th of produce from the land under cultivation. A suit for recovery of his share was initially filed by the Plaintiff on 30th May, 1968, in the Revenue Court (Court of Assistant Collector 1st Grade, Ambala City). A notice of the suit was given to the Defendant who in his written statement raised a preliminary objection that the suit did not lie in the Revenue Court. Reliance in this connection was placed by him on Section 77 of the Act it being pleaded that the case did not fall under Clause (k) of the first group referred to in Section 77(3). Section 77(3) gives a list of cases which can be instituted in, heard and determined by Revenue Courts only end no other Court can take cognizance of a dispute arising therein. The relevant extract from this section may be reproduced hereunder for facility of reference:

(3) The following suits shall be instituted in, and heard and determined by Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted:

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First Group

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(k) suits by a co-sharer in an estate or holding for a share of the profits thereof or for a settlement of accounts;

In order that a suit falls within the ambit of the aforesaid clause, it is necessary to determine on the facts as pleaded by the parties whether the Plaintiff suing for his share of the produce, in the circumstances alleged by him, could be treated under the law as a co-sharer in an estate or holding. The Plaintiff in the instant case accepted the force of the preliminary objection and conceded that the suit, as framed by him, was not within the cognizance of the Revenue Court and asked for return of the plaint for presentation to the proper Court, which meant the Civil Court. The plaint was accordingly returned by an order of the Assistant Collector as made on 30th October, 1968. The Plaintiff then filed the suit in a Civil Court where the Defendant again raised an objection that the said Court had no jurisdiction and the suit was cognizable by a Revenue Court only. The Civil Court entertained the objection and framed a preliminary issue in the following terms:

Whether the suit is triable by a Civil Court.

No evidence was produced by the parties and the Civil Court relying upon a judgment of the Punjab Chief Court reported as Sunder Singh v. Kesar Singh 80 P.R. 1904, which was subsequently followed by a Division Bench of this Court in Bakhshish Singh v. Kartar Singh 1956 P.L.R. 476, came to the conclusion that the suit was cognizable only by a Revenue Court. Here the counsel for the Plaintiff again conceded that the suit lay in the Revenue Court and prayed for return of the plaint to him for presentation to the latter Court. Instead of returning the plaint, the Civil Court had made the present reference to this Court it being of the view that the plaint could be returned if the suit had, in the first instance, been instituted in that Court. It took notice of the order of the Court of Assistant Collector passed on 30th October, 1968, whereby the said Court had already returned the plaint on the ground that the suit did not lie in that Court.

The sole question that arises for consideration now is which Court should try the suit. No doubt, the Chief Court held in Sunder Singh's case 80 P.R. 1904, (supra) that a suit for a share in the produce of, certain land owned by the Defendant and cultivated in partnership with the Plaintiff under an agreement amounted to a suit by a co-sharer for a share in the profits of the holding within the meaning of Section 77(3)(k) and was cognizable by a Revenue Court and this view was followed by a Division Bench of this Court in Bakhshish Singh's case 1956 P.L.R. 476, (supra) more on the ground that nothing would be. gained by disturbing the same since it had stood for a long time, but be that as it may it is not for me to express any opinion on the correctness of those judgments since sitting singly I am bound by the same. The fact, however, remains that the Defendant had before the Revenue Court taken up the position that the suit was not cognizable by that Court and it was in consequence of this "plea being upheld by the Revenue Court that the plaint was returned to the Plaintiff for presentation to the Civil Court. When the matter went to the Civil Court, the Defendant raised a question of jurisdiction there as well taking up inconsistent position that the suit could lie only in the Revenue Court. In my opinion, it is the type of a case where the Defendant should be held estopped from raising a plea in the Civil Court about the jurisdiction of that Court and the suit must be tried there. The doctrine of estoppel by representation based as it is on equity and good conscience is capable of application in an infinite variety of cases. It is a well-established rule of justice that a party to a proceeding cannot be permitted to approbate and reprobate. The doctrine does not, of course, apply against the provisions of a statute or cannot confer jurisdiction where it does not exist but at the same time a party to a proceeding cannot in equity and good conscience set up a position different to one already taken by it and on which the opposite party has already acted. It will amount to allowing a party to play fast and loose if its taking inconsistent pleas in different Courts relating to the same cause are entertained. The present is not a case of inherent lack of jurisdiction but facts were involved on which adjudication was necessary to come to a conclusion whether the Plaintiff was a co-sharer in an estate or holding. Where the jurisdiction of a Court to take cognizance of certain dispute depends on ascertainment of facts and an objection is taken to the jurisdiction of that Court, it is not open to that party, when the objection has prevailed, to raise again an objection as to jurisdiction of the Court which, according to his earlier objection, had jurisdiction to try the cause. An application of the doctrine of estoppel in such a case will not confer jurisdiction on a Civil Court but will only prevent the Defendant from denying the truth of the facts which he had admitted earlier before the Revenue Court, and on the basis of which the plaint was returned.

The view I have taken finds support from observation as made by a Division Bench of the Oudh High Court in AIR 1931 123 (Oudh) , and also by the Patna High Court in Hakim Syed Shah Khurshed Ali v. Commr. of Tirhut Division and Anr. AIR 1955 Pat 198 . The situation that arose in AIR 1931 123 (Oudh) was almost similar to the one before us. The Plaintiff there took proceedings for recovery of possession of suit land in a Revenue Court. The defence of Mahadeo Singh was that the Revenue Court had no jurisdiction to entertain that claim and his defence was accepted. The Plaintiff then filed a suit in the Civil Court and the Defendant again raised the plea that the suit was not cognizable by the Civil Court. In these circumstances, on the matter coming before the High Court in appeal, it was held that the Defendant was estopped from raising the plea of jurisdiction in the Civil Court. The ratio in Hakim Syed Shah Khurshed Ali Vs. Commr. of Tirhut Division and Another, is also on the same lines. A suit for eviction brought against the Defendant was dismissed by the Civil Court on an objection being taken that it had no jurisdiction because of the bar imposed by the provisions of the Rent Control Act. When similar relief of ejectment was sought before the Rent Control authorities, it was granted by the House Controller and the Collector on appeal, but the Commissioner, exercising revisional powers, dismissed the application for eviction on the ground that the House Controller had no jurisdiction. The High Court, exercising its extraordinary jurisdiction under Article 227 of the Constitution, set aside the order of the Commissioner holding that the Rent Control authorities had committed the legal error of permitting the tenant to raise inconsistent pleas and thereby declined to exercise the jurisdiction vested in them under the Rent Control Act.

For the foregoing reasons, I must hold that the Defendant cannot in the present case be allowed to raise any inconsistent pleas and that the suit must proceed in the Civil Court. The, reference, therefore, stands answered as above.

It is unfortunate that in spite of service, neither of the parties appeared in this Court and I could not have the benefit of assistance from any counsel.