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Qari Mohammed Zakir Hussain & Others v. Municipal Corporation Of Greater Mumbai & Others
Factual and Procedural Background
This appeal challenges an order of the Bombay City Civil Court dated March 29, 2001 in L.C. Suit No. 7567 of 2000. Appellant No. 1 is said to be the Chief Promoter of Appellant No. 11 Co-operative Society and Appellants Nos. 2–10 are promoters of that society. The appellants claimed to represent about 350 hutment dwellers who resided on land bearing City Survey No. 1582, Vile Parle (West), Andheri, Mumbai (about 21,015.70 sq. m.), which is undisputedly owned by the respondent Corporation. The plaintiffs sought declarations and mandatory and injunctive reliefs asserting entitlement under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 ("the Act of 1971") and alleged that authorities colluded with certain respondents (Nos. 5–8) who were allotted the land and demolished the hutments.
The plaintiffs filed a suit with multiple reliefs (including declarations as to illegality of a Commissioner Report, declaration of plaintiff society as rightful claimant to the plot for redevelopment, mandatory direction to allot the plot to the society, injunctions against respondents Nos. 5–8, a direction to produce files and to inquire into the grant of a document, eviction of respondents Nos. 5–8, appointment of a Court Commissioner, and interim reliefs). The defendants replied, contesting maintainability on two main grounds: (i) that the suit was beyond the pecuniary jurisdiction of the Bombay City Civil Court; and (ii) that the suit was barred by section 42 of the Act of 1971. The trial Court framed preliminary issues under section 9-A CPC focused on valuation/jurisdiction and section 42, and returned the plaint under Order VII, Rule 10-A on the basis that the reliefs sought required authorities to discharge duties under the Act and were thus barred by section 42. The present appeal challenges that order returning the plaint.
Legal Issues Presented
- Whether the trial Court was justified in returning the plaint on the ground that it was barred by section 42 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971.
Arguments of the Parties
Appellants' Arguments
- The plaint, read as a whole, alleges that the authorities acted in collusion with respondents Nos. 5–8 and unduly favoured them, thereby affecting the appellants' entitlement under Government policy for slum redevelopment.
- The impugned administrative action is tainted with mala fide and is a transgression/excess of powers vested in the authorities under the Act of 1971; therefore the suit is maintainable under section 9 of the Code of Civil Procedure (i.e., a civil court can try civil rights claims where mala fide/excess of jurisdiction is alleged).
- The plaintiffs rely on averments contained in the plaint (paragraphs 13–36) to support allegations of collusion and mala fide; the plaint therefore is not barred by section 42 of the Act of 1971.
Respondents' Arguments
- The defendants contended that the suit was not maintainable because (a) it was beyond the pecuniary jurisdiction of the trial court, and (b) it was barred by section 42 of the Act of 1971.
- Respondents Nos. 5–7 and 8 argued that allegations of fraud/collusion are being raised for the first time on appeal and that the plaint lacks specific pleadings and particulars of fraud as required by Order VI, Rules 2 and 4 CPC — hence there is no cause of action.
- They also submitted that the impugned order is returned under Order VII, Rule 10-A and that an order under that provision is not appealable; the appropriate remedy would be revision rather than appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| A.I.R. 1940 Privy Council 105 | The opinion cites this decision as part of a catena establishing that exclusion of Civil Court jurisdiction is not to be readily inferred and that courts can examine abuse of power or failure to act under the statute. | Relied upon to support the general legal proposition that suits alleging mala fide or excess of jurisdiction are actionable before Civil Courts despite statutory bars. |
| State of Kerala v. N. Ramaswamy Iyer & Sons (referenced) | Placed among authorities that explain when Civil Courts may intervene despite statutory exclusion — i.e., where actions are not in good faith or exceed statutory power. | Used as part of the precedent line to justify that allegations of mala fide/excess of power may render a suit outside the bar of section 42. |
| A.I.R. 1966 S.C. 1738 | Cited as part of the body of decisions establishing the principle that statutory exclusion of jurisdiction must be explicit and not readily inferred; judicial scrutiny is available where statute or tribunal departs from fundamental law or acts in abuse of power. | Applied to affirm that alleged mala fide or transgression of authority takes the matter out of statutory exclusion and allows Civil Court jurisdiction. |
| Firm Seth Radhakishan (deceased) represented by Harikishan v. Administrative Municipal Committee, Ludhiana (referenced) | Included among decisions that qualify the bar on Civil Courts, indicating that suits can proceed where statutory authorities abuse their powers or act beyond jurisdiction. | Relied on to support the proposition that the plaint alleging collusion/excess of authority is not barred by section 42. |
| A.I.R. 1963 S.C. 1547 | Referenced as part of the established line of authority on limits of exclusionary clauses and when Civil Courts retain jurisdiction. | Used to buttress the court's view that a charge that an act was not done in good faith removes it from the protective ambit of the statute's bar. |
| Secretary, K.S.E.B., Trivandrum v. M. Sainaba — A.I.R. 1990 Kerala 50 | Cited as a High Court decision in the same line that recognizes Civil Court jurisdiction where statutory action is alleged to be mala fide or in abuse of power. | Employed as additional authority for the legal stance that statutory bars do not protect acts done in bad faith and that Civil Courts may entertain suits in such circumstances. |
Court's Reasoning and Analysis
The court proceeded in structured steps:
- Identification of the central dispute: Whether the trial Court correctly returned the plaint as barred by section 42 of the Act of 1971. The trial Court had returned the plaint under Order VII, Rule 10-A, reasoning that the reliefs sought required the authorities to exercise powers under the Act and therefore the Civil Court lacked jurisdiction under section 42.
- On maintainability of appeal: The Bench analyzed whether an appeal lay from the impugned order. Although the trial Court referred to Order VII, Rule 10-A when returning the plaint, the appellate Court examined the procedural scheme of Rules 10 and 10-A of Order VII CPC. It explained that a court may form the opinion that a plaint should be returned and must intimate the plaintiff under Rule 10-A, giving the plaintiff the option to withdraw and present the suit before an appropriate forum; only where the plaintiff applies under Rule 10-A will a formal order under that Rule be passed and such an order would be non-appealable. In the present case the plaintiffs did not opt to withdraw; they challenged the trial Court's decision. The appellate Court concluded the operative order was an order under Rule 10 (appealable under Clause (a) of Rule 1 of Order XLIII CPC) and therefore the appeal was maintainable. Consequently, the objection that this appeal was not maintainable was rejected.
- On the objection that allegations of fraud/collusion were raised first on appeal: The court held that the plaintiffs relied on averments already contained in the plaint and that whether those averments constitute a valid legal question as to whether the plaint was barred by section 42 is a legal issue that can be raised in the appeal, even if not specifically advanced below. Thus this objection was rejected as lacking merit.
- Statutory construction and legal principle: The court examined section 42 of the Act of 1971 (bar of Civil Court jurisdiction and prohibition on injunctions regarding actions under the Act) together with sections 37, 40 and 41 which provide protection for acts done in good faith under the Act. The court articulated the controlling principle: exclusion of Civil Court jurisdiction must be explicit or clearly implied; where the allegation is that the act done (or intended to be done) by the authority results from fraud, collusion or mala fide and transgresses the powers conferred by statute, that allegation is actionable before a Civil Court under section 9 CPC.
- Application to facts: Reading the plaint as a whole, the appellate Court found that necessary assertions alleging collusion and malafide conduct by the authorities had been made (notably in paragraphs 13–36 of the plaint). Given those assertions, the plaint could not be said to be barred by section 42, since the complaint was that the offending action was not in good faith and was in excess/transgression of statutory powers.
- Distinction between jurisdictional inquiry and merits: The court emphasized that whether the plaintiffs ultimately can obtain the reliefs claimed is a merits question to be investigated by the trial Court; the trial Court erred by conflating the jurisdictional question under section 42 with the merits of whether reliefs were sustainable on facts. If, upon full scrutiny, the plaint discloses no cause of action, the trial Court remains competent to dismiss it under other provisions (e.g., Order VII, Rule 11). But that is a separate inquiry from whether the Civil Court is barred by section 42.
- Disposal: Having found the trial Court's approach unsustainable, the appellate Court set aside the impugned order returning the plaint and restored the plaint to the trial Court for adjudication in accordance with law. The trial Court was directed to examine all questions (including other maintainability points and the notice-of-motion reliefs) and decide them expeditiously, preferably within six months.
Holding and Implications
Holding:
APPEAL ALLOWED — The impugned order of the trial Court returning the plaint under the asserted bar of section 42 of the Act of 1971 is set aside and the plaint is restored to the file of the trial Court.
Implications and consequences:
- The case returns to the trial Court for full consideration on law and facts. The trial Court must independently examine all questions, including other maintainability objections and the merits of the plaintiffs' claims (including the notice-of-motion seeking interim reliefs).
- The appellate Court directed that the trial Court should address the reliefs claimed in the notice of motion after giving both parties an opportunity to be heard and should dispose of those issues expeditiously, preferably within six months from the date of the order.
- The decision ensures that allegations that administrative action was tainted by mala fide, fraud or collusion and hence constitutes an excess of statutory power are not summarily excluded from Civil Court jurisdiction by section 42; however, the court did not grant substantive relief on the merits and left factual investigation and determination to the trial Court.
- No broad, novel precedent beyond the applied proposition was declared; the Court applied conventional principles (as drawn from the cited authorities) that statutory bars do not protect acts done in bad faith and that exclusion of Civil Court jurisdiction must be explicit or clearly implied. The direct effect is the restoration of the plaint and remand for trial court adjudication; the opinion does not purport to decide merits of the plaintiffs' substantive claims.
Order: Parties to act on the authenticated copy of the order. Appeal allowed.
A.M Khanwilkar, J.:— This appeal takes exception to the order passed by the Bombay City Civil Court, Bombay dated March 29, 2001 in L.C Suit No. 7567 of 2000.
2. The only question that arises for consideration in the present appeal is whether the trial Court was justified in returning the plaint as presented by the appellants plaintiffs on the ground that the same was barred by section 42 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as “the Act of 1971”). Briefly stated, the appellants herein filed a suit before the Bombay City Civil Court at Bombay. Appellant No. 1 claims to be the Chief Promoter of appellant No. 11 Co-operative Society, whereas appellant Nos. 2 to 10 claim to be the promoters of the said society.
3. The appellants seek to espouse the cause of about 350 hutment dwellers who were residing in land bearing City Survey No. 1582, Vile Parle (West), Andheri, Mumbai, till recently upto May 13, 2000. The said land admeasures about 21015. 70 square mtrs. It is not in dispute that the said land is owned by the respondent Corporation. According to the appellants, by virtue of the provisions of the Act of 1971, they were entitled for allotment of the subject-land for redevelopment and for constructing tenements thereon which could be occupied by them. The plaint as filed proceeds on the assertion that the plaintiffs made several representations to the concerned authorities in this behalf but their requests was turned down without indicating any reason whatsoever. According to the appellant, to their utter surprise, the authorities instead allotted the said land to respondent Nos. 5, 6 and 7 and 8 for development who, in turn, took unilateal action in demolishing the structures, namely, the hutments occupied by the members of the appellant society.
4. According to the appellants, on enquiries, it further revealed that the concerned authorities colluded with the said respondent and permitted them to develop the land by dispossessing the appellants members of the society. In this background, the appellants have filed the suit before the trial Court for the following reliefs.
“(a) It be declared by this Hon'ble Court that the Commissioner Report of defendant No. 1 at Exhibit N colly dated 20th July, 1996 is illegal, bad in law and is liable to be set aside.
(b) It be declared that the plaintiffs No. 11 society is the rightful claimant to the plot of land situate at C.T.S No. 1582, Near Milan Sub-Way, Lohia Nagar, Vile Parle (West), Mumbai 400 050 area admeasuring about 21015.70 sq. mtrs. for slum rehabilitation projects, as per resolution passed on Item No. 51 by the Improvements Committee on 17th January, 1996.
(c) For mandatory order directing defendants Nos. 2, 3, 4 to allot the said plot of land C.T.S No. 1582, Near Milan Sub-Way, Lohiya Nagar, Vile Parle (West) Andheri, Mumbai 400 050 admeasuring area 21015.70 sq. mtrs. to the plaintiff No. 11 society for Slum Rehabilitation in lieu of their structures in Slum declared by defendant No. 9.
(d) Defendant Nos. 5 to 8 and their servants and agents or any person or persons claiming through or under them be restrained by permanent order and injunction of this Hon'ble Court from entering upon and/or carrying on any construction on the said plot of land situated at C.T.S No. 1582, Near Milan, Sub-Way, Lohiya Nagar, Vile Parle (West), Mumbai, 400 056, admeasuring area 21015.70 sq. mtrs.
(e) An order to be issued by this Hon'ble Court directing defendant No. 2 to 4 to produce files and papers before the Honourable Court in respect of Annexure 11 issued to defendant No. 8 and after perusing the same defendant No. 3 be directed to make detailed Enquiry into the circumstances in which it came to be granted.
(f) By order of mandatory injunction defendant Nos. 1 to 4 be directed to evict defendant Nos. 5 to 8 from the plot of land situate at C.T.S No. 1582, Near Milan, Sub-Way, Lohiya Nagar, Vile Parle (West), Mumbai, 400 050.
(g) Pending the hearing and final disposal of this suit defendants Nos. 5 to 8 and their servants, agents, persons claiming through or under them be restrained by an order and injunction of this Hon'ble Court from entering upon and carrying on any construction work or activities on the said plot of land situate at C.T.S No. 1582, Near Milan, Sub-Way, Lohiya Nagar, Vile Parle (West), Mumbai, 400 056, admeasuring area about 21015.70 sq. mtrs.
(h) That pending the hearing and final disposal of this suit, a Court Commissioner be appointed by this Hon'ble Court to visit the plot of land situate at C.T.S No. 1582, Near Milan, Sub-way, Lohiya Nagar, Vile Parle (W), Mumbai admeasuring area 21015.70 sq. mtrs. and to submit his detailed factual report about the construction activities going on the suit site C.T.S No. 1582 Near Milan, Sub-way, Lohiya Nagar, Vile Parle (W), Mumbai, 400 056 and the exact area on which it is going on.
(i) Interim and ad-interim reliefs in terms of prayer Clauses (f) and (g) be granted to the plaintiffs.
(j) Cost of this suit be provided for.
(k) Any other and further reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case.”
5. In the said suit, the appellants took out a notice of motion for temporary injunction and in response to the said notice of motion respondent original defendants filed reply refuting the allegations made in the plaint and instead, contended that the suit as filed was not maintainable. The objection regarding maintainability raised in the reply was two fold, viz., (i) that the suit was beyond pecuniary jurisdiction of the Bombay City Civil Court and (ii) that the same was barred by the provisions of section 42 of the Act of 1971. Be it noted that the trial Court has not examined the first objection in the impugned order, nor the same arises for consideration in this appeal. Besides filing reply to the said Notice of Motion, an application was filed on behalf of the respondents for framing preliminary issue regarding jurisdiction for consideration as required by section 9-A of the Code of Civil Procedure, 1908. On the basis of the said application, following issues were framed by the trial Court which read thus:
i) Do defendant Nos. 5 to 7 prove that on correct valuation of the suit, this Court has no jurisdiction to try and entertain the present suit?
ii) Do defendant Nos. 5 to 7 prove that by virtue of the provisions under section 42 of the maharashtra slum areas (i.c & r.) act of 1971 this Court has no jurisdiction to try and entertain the present suit?
iii) What order?
6. The trial Court after considering the relevant provisions and materials on record, took the view that the reliefs claimed by the appellants plaintiffs were in the nature of requiring the competent authorities to discharge their duties as per the provisions of the Act and for that reason, the plaint as presented was barred by virtue of section 42 of the Act, Summation of this view can be discerned from paragraphs 25 and 26 of the impugned judgment. On the basis of the said view, the trial Court passed an order that the plaint is returned under Order VII, Rule 10-A to the plaintiffs for being presented before the proper forum within two months from the date of the impugned order. It is this order which is the subject matter of challenge in the present appeal.
7. According to the appellants, the Court below clearly glossed over the crucial aspects of the matter, particularly that the nature on the allegations in the plaint, if the same (plaint) was to be read as a whole, was that the authorities acted in collusion with respondent Nos. 5 to 8 and have unduly favoured the said respondents by permitting them to develop the subject land which decision inevitably affects the rights and the entitlement of the appellants under the policy of the Government regarding development of the slum area. In other words, it is contended that the impugned action, which is the subject matter of challenge in the suit, is tainted with mala fide and clearly amounts to transgressing powers entrusted to the concerned authorities under the provisions of the said Act of 1971. In this backdrop, the contention raised before this Court is that in such a situation, the suit as filed was competent within the meaning of section 9 of the Code of Civil Procedure.
8. In other words, the Counsel for the appellants submits that on reading the plaint as a whole and the reliefs claimed therein, it is clear that the reliefs that were essentially claimed were founded on the assertion that the authorities acted in excess of their jurisdiction and their act of commission or omission was vitiated on account of mala fide in fact and in law. Counsel therefore, contends that in such a situation, it would be preposterous to hold that the suit as filed was not maintainable. According to the appellants, the suit was clearly outside the purview of the protection of bar provided for in section 42 of the Act of 1971.
9. On the other hand, the Counsel for respondents Nos. 5 to 7 and respondent No. 8 contends that the argument of fraud and conspiracy is being raised for the first time before this Court. He further submits that on perusal of the plaint, it would appear that there are absolutely no pleadings and no foundation has been laid alleging that the offending action of the authorities was vitiated by fraud. Reliance has been placed upon the provisions contained in Order VI, Rules 2 and 4 of the Code of Civil Procedure to contend that in absence of assertion of material facts and particulars with regard to the allegation of fraud, no suit would proceed for want of cause of action. Counsel for respondents Nos. 5 to 7 and respondent No. 8 further contends that the appeal as presented is not maintainable because the order, which is impugned in appeal, is the order under Order VII, Rule 10-A of the Code of Civil Procedure against which no appeal is maintainable in law, and the only remedy in such a situation would be to prefer revision application.
10. Before I proceed to deal with the merits of the rival contentions, I would think it appropriate to deal with the objection raised on behalf of the respondent No. 5 to 8 regarding maintainability of the appeal. No doubt, the impugned order passed by the trial Court refers to the fact that the plaint is returned under Order VIII, Rule 10-A of the Code of Civil Procedure to the plaintiffs to present the same before the appropriate forum within two months from the date of the said order. However, this submission clearly overlooks the complete scheme of the relevant provisions. Relevant provisions with regard to return of a plaint can be traced to Rules 10 and 10-A of Order VII of the Code of Civil Procedure. Rule 10 postulates that subject to the provisions of Rule 10-A, the plaint shall, at any stage of the suit, be permitted to be presented to the Court in which the suit should have been instituted. On the other hand, Rule 10-A provides, where, in any suit, after the defendant has appeared, the Court is of the opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff. Sub-rule (2) of Rule 10-A prescribes that on such intimation by the Court, the plaintiff may make an application to the Court and on such application being made, the Court shall, by virtue of sub-rule (3), pass necessary orders including of returning the plaint. By virtue of sub-rule (5), of Rule 10-A of Order VII, appeal against such an order is clearly barred. On conjoint reading of these provisions, it would appear that the Court may record its opinion that the plaint needs to be returned to the plaintiff for being presented before the Appropriate Court, but, as soon as it forms that opinion it is obliged to intimate the plaintiff about this opinion and, if such intimation is given to the plaintiff, an option is available to the plaintiff to withdraw the suit and present the same before the appropriate forum but if he fails to avail of the said opinion of withdrawing the suit for being presented before the appropriate forum, only thereafter the order of the Court returning the plaint would become effective. The latter order, however, would be tractable to Rule 10 of Order VII and cannot be traced to Rule 10-A as such. On the other hand, if the plaintiff on being informed by the Court makes application under Rule 10-A only then that order would be tractable to one having been passed under Rule 10-A, for an application by the plaintiff under this provision is a sine qua non.
11. In the present case, though the trial Court in its order has referred to the provisions of Order VII, Rule 10-A that has been obviously done to enable the plaintiffs to withdraw the plaint for being presented before the appropriate Court. However, undisputedly, the plaintiffs have not opted for the said remedy but have chosen to challenge the decision of the trial Court which takes the view that the plaint as presented was barred by section 42 of the Act of 1971. Understood thus, such an order would be one under Rule 10 which is appealable under Clause (a) of Rule 1 of Order XLIII of Code of Civil Procedure. In my view, therefore, this objection deserves to be rejected.
12. With regard to the next objection raised on behalf of the respondents Nos. 5 to 7 and respondent No. 8 that the appellants have raised the plea of fraud and collusion for the first time before this Court. In my view, even this objection is inapposite. To support the plea of fraud and collusion, the appellants are relying on the averments in the plaint itself. According to the appellants, on reading the plaint as a whole, it is not possible to comprehend that such a plaint would be barred by section 42 of the Act of 1971. To my mind, this would be a legal question which can be raised in this appeal, though not specifically raised before the trial Court. Accordingly, I am of the view that even this objection is devoid of merits.
13. Coming back to the main controversy involved in this appeal as to whether the plaint as filed was barred by section 42 of the Act of 1971, I would think it apposite to advert to the provisions of the Act of 1971. It would be useful to first advert to section 42 which deals with bar of jurisdiction. Same reads thus:
“42. Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Administrator, Competent Authority or Tribunal is empowered by or under this Act, to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.”
14. Besides the aforesaid provision, it would also be necessary to advert to section 37 and section 40 as well as section 41 of the Act, which read thus:—
“37. No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or Rules or Regulations made thereunder.
40. No prosecution for any offence punishable under this Act shall be instituted except with the previous sanction of the Competent Authority
41. No suit, prosecution or legal proceedings shall lie against the competent authority or against any person acting under its authority for anything which is done or intended to be done under this Act or the Rules made thereunder”.
15. On conjoint reading of the aforesaid provisions, it would appear that no suit or prosecution can be maintained against the competent authority or against any person acting under its authority for anything which is in good faith done or intended to be done under the said Act or Rules made thereunder. Section 42 of the Act opens with the expression. “Save as otherwise expressly provided in this Act” followed by, “no Civil Court shall have jurisdiction in respect of any matter which the administrator, competent authority or Tribunal is empowered by or under this Act, to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. “As a necessary corollary it follows that if the allegation is that the act done or intended to be done by the concerned authority is the result of fraud, collusion or mala fide and is clearly in transgression of the powers conferred on that person or authority under the Act or Rules, in such a case, the allegation would be actionable, before the Civil Court being one of civil nature to be tried only by the Civil Court by virtue of section 9 of the Code of Civil Procedure Code.
16. It is well settled that exclusion of the jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be explicity expressed or clearly implied. It is also well settled that even if the jurisdiction it so excluded the Civil Courts have jurisdiction is examine into the issues where the provisions of the Act have not been complied with, or statutory Tribunal has not acted in conformity with the fundamental judicial procedure. On the other hand, a suit in a Civil Court can always be maintained to question the order of a Tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said Tribunal abuses its power or does not act under the Act but in violation of its provisions. In other words, if the suit proceeds on the premises that the offending act has been done not in good faith, then there is no bar for such a suit. This legal position is enunciated in catena of decisions including (A.I.R 1940 Privy Council 105)1 (State of Kerala v. N. Ramaswamy Iyer & Sons)2, A.I.R 1966 S.C 1738, (Firm Seth Radhakishan (deceased) represented by Harikishan v. Administrative Municipal Committee, Ludhiana)3, A.I.R 1963 S.C 1547, as well as decision of Kerala High Court in (Secretary, K.S.E.B, Trivandrum v. M. Sainaba)4, A.I.R 1990 Kerala 50.
17. Understood thus, what is to be seen is whether the allegations in the plaint are of such nature that the plaintiff complaints that the offending action is mala fide and in transgression of the authority. If such are the allegations, then the suit would obviously not be barred in terms of the bar of jurisdiction provided for under section 42 of the Act 1971 for, such a suit would be outside the purview of the said provision because the offending act is alleged to have been committed not in good faith or intended to be done under the said Act, but for extraneous reasons.
18. Applying the said principle to the present case, and more particularly on reading the plaint as a whole, it would be seen that necessary assertions have been made in the plaint in various paragraphs from paragraphs 13 to 36. The plaintiffs have given circumstances on the basis of which they have reasons to complain that the offending act of the authorities was obviously committed in connivance with respondents Nos. 5 to 8 so as to unduly favour the said respondents. The assertions, therefore made in the plaint are that the act done or intended to be done was clearly in transgression of the provisions of the Act of 1971. Such being the position, it would be incomprehensible that such a plaint ought to be returned being barred by section 42 of the Act.
19. This, however, is not to say that the assertion made in the plaint by themselves are sufficient to grant reliefs as claimed by the plaintiffs. That investigation will have to be done by the trial Court on merits in accordance with law. On the other hand, in the present case, the trial Court in paragraphs 25 and 26 of its order has merely observed that the reliefs that are claimed in the suit are in the nature of acts that could be undertaken by the authorities under the provisions of the Act, so as to hold that the plaint as presented was barred by section 42 of the Act. This approach in inappropriate and cannot be countenanced in law. On the other hand, the trial Court was obliged to undertake the scrutiny of the plaint as a whole while answering the issue on hand regarding the jurisdiction of the Civil Court. To my mind, investigation as to whether the plaint makes out a cause of action for grant of relief as claimed, is entirely a different issue which cannot and ought not to be mixed up while answering the question as to jurisdiction of the Civil Court as such. That investigation will have to be undertaken by the trial Court independently and, if it is found that the relief cannot be granted because no cause of action is made out in the plaint, then the Civil Court can pass orders under other provisions including Order VII, Rule 11 of dismissing the plaint. But, surely, that reasoning cannot be used for non-suiting the plaintiffs on the ground that the suit is barred by the provisions of section 42 of the Act, for the Civil Court has no jurisdiction.
20. Having taken this view, there is no option for this Court but to set aside the impugned order and restore the plaint on the file of the trial Court to be decided in accordance with law. Accordingly, appeal is allowed. It is, however, made clear that all questions, including the action of maintainability of the suit on other counts, if any, may be examined by the trial Court in accordance with law. Suit having been restored on the file of the trial Court, the trial Court would also examine the reliefs prayed for in the notice of motion after giving opportunity to both the parties to be decided expeditiously, preferably within six months from today. Ordered accordingly.
21. Parties to act on the authenticated copy of the order.
22. Appeal allowed.
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