P L D 1952 Dacca 89 (PLP)

(b) Specific Relief Act (I of 1877), S. 9‑Whether revision lies from order under. It is true that in case of an order under section 9 of the Specific Relief Act the aggrieved party has a remedy by way of a regular title suit, but there is no uniform rule that no revision lies or can be entertained, if and when there is in existence any other remedy for an aggrieved party. Every case will depend on its own facts. Birendra Kumar De, for Petitioner. Nirmal Chandra Nandi, for Opposite Party. FAIYAZ ALI, J.‑This is a Revision under section 115 of the Code of Civil Procedure against the order, dated the 26th November, 1948, passed by the learned Munsif, Second Court, Bajitpur, in the district of Mymensingh in a suit under section 9 of the Specific Relief Act. Mr. B. K. De, learned Advocate for the petitioner, has argued that the learned Munsif had no jurisdiction to hear and decide the case in respect of property mentioned in schedule kha of the plaint, and that in respect of schedule ka property there was absolutely no evidence in the record to prove that the plaintiff had been dispossessed from that property within 6 months of the date of the suit. Consequently the judgment and order of the learned Munsif was without jurisdiction and the learned Munsif had also acted illegally and with material irregularity in the exercise of his jurisdiction. His judgment and order, therefore, deserved to be set aside under section 115 of the Code of Civil Procedure. Mr. N. C. Nandi, learned Advocate for the opposite party, has contended that the plaintiff could maintain the suit in the Court of Munsif, Second Court, Bajitpur, in respect of kha property even though that property lay admittedly outside his territorial jurisdiction. For this contention he relied on section 17 of the Code of Civil Procedure, read with Order 2, rule 3, Civil Procedure Code, and contended that the plaintiff could join different causes of action against the same defendant and sue in the Court of the Munsif, which had admittedly jurisdiction over ka schedule property, though not over the kha schedule property. Secondly, Mr. Nandi pleaded that no revision lay against an order under section 9 of the Specific Relief Act, and in any case there were no grounds for inter ference with such an order under section 115, Civil Procedure Code. I cannot persuade myself to agree with either of the two contentions of Mr. Nandi and I think that the argument advanced by Mr. B. K. De should be accepted as it accords with the correct legal position. I am of the opinion that section 17, Civil Procedure Code applies only to those cases in which there is one and the same cause of action in respect of immovable property situate within the jurisdiction of different Court. In such a case, and only in such a case can a suit be instituted in any Court within A the local limits of whose jurisdiction any portion of the pro perty in suit might be situated. The section cannot be inter preted as applying to those cases in which there are different causes of action and also immovable property situate within the jurisdiction of different Courts. If any authority was. I needed to fortify this view it is to be found in the judgment of their Lordships of the Privy Council in Sardar Nisar Ali Khan v. Muhammad Ali Khan A I R 1932 P C

172. In the above case the plaintiff brought a suit in Oudh in res pect of three properties, one in Oudh and two in the Punjab. He also included another property in the Punjab claiming it as Mutwalli under a Wakf. Their Lordships held that the last property could not be included in the same suit under section 17, Civil Procedure Code, as the cause of action in respect of that property was different from the cause of action in respect of the other properties. In this case the plaintiff clearly alleged that his dis possession from the kha and ka property took place on different dates. It is, therefore, obvious, that the cause of action in respect of ka and kha property were not the same. There was one cause of action for the ka property and a wholly different cause of action for the other property. I, therefore, hold that the Munsif had no jurisdiction to hear and decide the case under section 9, Specific Relief Act, with regard to kha property. As regards ka property the learned Munsif did not believe the witnesses produced by the plaintiff regarding his alleged possession and dispossession, but accep ting the statement of Ali Newaz (D. W. 2) held that posses sion and dispossession of the plaintiff had been estab lished within the limitation. I think this finding of the learned Munsif is based upon a complete misconception and misuse of the statement of Ali Newaz (D. W. 2). All that Ali Newaz had stated was : " The jute land (ka property), is in possession of the defendant for the last 2/3 years. Rammat (plaintiff) was in possession before that." The learned Munsif had no jurisdiction whatsoever for treating this statement as meaning that Rammat (plaintiff) was in possession just 2 years before the suit, which was filed on the 25th November, 1948, and must, therefore, be taken to have been dispossessed within 6 months of the suit. It is a manifest misuse of the said statement, which plainly gives the period not as definitely 2 years but as 2 or 3 years, and is, there fore, anything but a definite statement and it cannot possibly be made the basis of a finding on a question of limitation. I, therefore, hold that the judgment and order of the learned Munsif in respect of ka property also is bad in law, and in giving that decision the learned Munsif has acted illegally and with material irregularity in the exercise of his jurisdiction. I do not also agree with the other contention of Mr. Nandi, that an order under section 9 of the Specific Relief Act is not open to revision under section 115 of the Code of Civil Procedure. It is true that in case of an order under section 9 of the Specific Relief Act the aggrieved party has a remedy by way of a regular title suit, but there is no uniform rule that no revision lies or can be entertained, if and B when there is in existence any other remedy for an aggrieved party. Every case will depend on its own facts and that i why, we find High Courts sometimes interfering in revision, when other remedies are open, and sometimes not. In this particular case, I am of the opinion that the learned Munsif acted illegally and arbitrarily and without jurisdiction and to the prejudice of the defendant both in respect of ka and kha properties. I, therefore, set aside his judgment and order for reasons stated above. The rule is, accordingly, made absolute with costs of both the Courts, and the hearing fee of the learned Advocate for the defendant in this Court is assessed at one Gold Mohar. A. H. Rule made absolute.