Quashed

Kamalbai Kisan Gupte and Another v. Santosh Bhagirath Mote and Others

Bombay HC4 Mar 2013WP/987/2013

Case brief

AI extract

What is this about?

Writ petition seeking quashing of an order passed under the Mamlatdars Courts Act. The High Court held that the authority failed its statutory duty to examine the petitioner on oath despite defects in the application. Consequently, the impugned order was quashed, and the petitioner was given an opportunity to rectify defects.

What did the court decide?

Quashed of impugned judgment and orders; opportunity granted to petitioner to rectify defects under Section 7 of the Act; authorities directed to comply with Sections 8 and 9.

Kamalbai Kisan Gupte and Another Vs Santosh… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.987 OF 2013.

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1. Kamalbai Kisan Gupte,
Age 67 years, Occ.Household,
R/o Ayodhya Nagar, Beed,
Dist.Beed.

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2. Ganpat Limbajirao Gupte,
Age 65 years, Occ.Agriculture,
Poonam Galli, Beed,
Dist.Beed. ... Petitioners.

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Versus

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1. Santosh Bhagirath Mote, Age major, Occ.Business,

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2. Vishwambhar Dattoba Tapase, Age major, Occ.Business,

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3. Achyut Digambar Mahamuni, Age major, Occ.Business,

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4. Devesh Bhagirath Mote, Age major, Occ.Business.

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5. Vasant Bhanudas Mahamuni, Age major, Occ.Business.

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6. Kaushalaya Kisan Ghorpade, Age major, Occ.Business,

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7. Navnath Mahadeo Mhaske, Age major, Occ.Business.

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All R/o Ayodhya Nagar Beed,
Dist.Beed.

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... Respondents.

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Mr.P.V.Barde, advocate for the Petitioners.
Mr.R.J.Shelar, advocate for the Respondent No.4.

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CORAM : S.V.GANGAPURWALA,J.

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 Date : 04.03.2013.

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ORAL JUDGMENT :

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1.Heard.

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2.Rule. Rule returnable forthwith. With
the consent of the parties, the petition is taken
up for final hearing.

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3.The present Respondent had filed
application U/s 5 of the Mamlatdars' Courts Act.
The same was allowed. The Revision filed against
the said order was dismissed.

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4.Mr.Barde, learned counsel for the

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petitioner submits that the petitioner had taken
a specific objection that no cause of action is
stated in the application, so also the

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application is barred by limitation but the
authorities below did not dwell on the said
aspect and have not given any finding on it.
The application does not give the details as
contemplated U/s 7 of the Mamlatdars' Courts Act.
According to the learned counsel, on the basis of
the said application, the Mamlatdar could not
have exercised its jurisdiction.

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5.Mr.Pawar and Mr.Shelar, learned counsel
for the Respondents support the order and submit
that both the authorities concurrently have come
to the conclusion that there is obstruction at
the hands of the petitioner and thereby have
rightly passed the order. No illegality is
committed by the authorities while passing the
impugned order. The learned counsel contends
that even panchanama has been drawn and conducted
by the Circle Inspector, who is authorised under
the Act. No interference is called for in the
said concurrent findings.

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6.With the assistance of the learned
counsel, I have gone through the application, the

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objection raised and the orders passed. Section
7 of the Mamlatdars Courts Act, requires
following particulars :

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Act shall be commenced by a plaint,

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which shall be presented to the

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Mamlatdar in open Court by the
plaintiff and which shall contain

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the following particulars, -

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(a)the name, age, religion,

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caste, profession and place of
abode of the plaintiff;

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(b)the name, age religion,

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caste, profession and place of
abode of the defendant;

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(bb)the nature and situation

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of the impediment erected and the
situation of the lands which are
adjacent to each other and the
nature of the relief sought;

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(c)the nature and situation

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of the property of which possession
for use is sought or the nature of
the injunction to be granted, as

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the case may be;

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cause of action arose;

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(e)the circumstances out of

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which the cause of action arose;
and

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(f)a list of the plaintiff's
documents, if any, and of his
witnesses, if any, showing what
evidence is required from each
witness, and whether such witnesses
are to be summoned to attend or
whether the plaintiff will produce
them on the day and at the place to
be fixed under section 14."

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Even if the application does not contain all the
details as are contemplated in Section 7, the
Mamlatdar U/s 8 of the said Act, has to explain
to the person presenting the plaint, the nature
of the reliefs afforded by the Act and shall
inquire from the petitioner his desire to obtain
reliefs thereby. Further if the petition does
not contain the details as laid down in Section 7

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a duty is cast upon the Mamlatdar as per Section
9 to examine the plaintiff on oath and ascertain
from him all such particulars as are specified
in Section 7 and which are not clearly stated in
the plaint. The examination of the plaintiff is
reduced into writing and the same is made as an
endorsement or annexure of the plaint and is
thereafter deemed to be a part of the plaint.
The plaint can be rejected by the Mamlatdar on
the ground enumerated in Section 12 of the
Mamlatdars' Courts Act. One of the ground is if
the cause of action is prior to six (6) months of
filing of the petition.

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7.In the present case perusal of the
application presented to the Mamlatdar, it is
manifest that the said petition is bereft of the
particulars about the date of cause of action, so
also about the other aspects. The learned counsel
for respective parties are ad-idem on one aspect
that the plaintiff has not been examined on oath
by the Tahsildar. It also appears that a
specific objection was raised with regard to the
cause of action and the plaint being presented

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after the prescribed period of limitation. The
authorities have not dilated on the said aspect
of the matter.

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8.The authority has not exercised its
jurisdiction in a proper manner. If the petition
was bereft of the details as required, the
Tahsildar is mandated by law to examine the
petitioner. On account of the fault of the
Tahsildar, it would be inappropriate to non-suit
the petitioner. The provisions of Section 9 cast
an obligation on the Mamlatdar.

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9.In light of the above, though the
impugned judgments are quashed and set aside. I
am inclined to grant opportunity to the
petitioner to rectify the defects as laid down in
Section 7 of the Act. I am inclined to grant
opportunity as the authority under the statute
has failed to perform its duty.

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10.In the result, the impugned judgment
and orders are quashed and set aside. The
petitioner is given an opportunity to rectify the
defect in an application U/s 7, so also the

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authorities should comply the provisions of
Sections 8 and 9 before proceeding further. The
parties shall appear before the Mamlatdar on
18.3.2013. The Mamlatdar shall after giving
opportunity to all the parties, decide the
proceedings expeditiously and preferably within
four (4) months.

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11.Rule made absolute with aforesaid

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observations and directions. No costs.

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 (S.V.GANGAPURWALA,J.)

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asp/office/wp987.13

Kamalbai Kisan Gupte and Another v. Santosh Bhagirath Mote and Others

Case brief

What is this about?

What did the court decide?

Kamalbai Kisan Gupte and Another v. Santosh Bhagirath Mote and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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