Sarju Hajuri vs Ram Krishna Singh and others

Jagat Narayan, J.C.

These two writ applications can more conveniently be disposed of by one judgment. Ram Krishna respondent brought a suit for the recovery of Rs. 190-8-0 against Sarju applicant before the Nyaya Panchayat. It was decreed for Rs. 162-3-0. Sarju filed a revision application before the Munsiff who set aside the decree as the valuation of the suit was beyond the pecuniary jurisdiction of the Nyaya Panchayat u/s 64 of the Vindhya Pradesh Gram Panchayat Ordinance, 1949.

The suit was brought on the basis of different loans advanced at different times. Ram Krishna split up the amount for the recovery of which he had brought one suit and brought two suits one for the recovery of Rs. 92-13-0 and another for the recovery of Rs. 81-4-6 both of which were decreed. Sarju filed a revision application against both these decrees before the Munsiff but his applications were rejected. He has filed the present application under Arts. 226 and 227 of the Constitution for setting aside the decrees. The applications have been opposed on behalf of Ram Krishna respondent. I have heard the Learned Counsel for the parties.

The first contention on behalf of the applicant is that it was not open to the plaintiff to have brought two separate suits in respect of the same matter after the decree passed by the Panchayat in the consolidated suit had been set aside in revision by the Munsiff. The Munsiff did not cancel the Jurisdiction of the Nyaya Panchayat in respect of causes of action on which the consolidated suit was based. The causes of action on which the present suits are based, are distinct and the plaintiff could have brought two separate suits originally on their basis.

The Nyaya Panchayat could not entertain one of a valuation over Rs. 100/-. But it was not debarred from entertaining several suits totalling up to an amount of over Rs. 100/- by the same plaintiff against the same defendant. The Nyaya Panchayat was therefore competent to decide the two suits and the learned Munsiff rightly refused to interfere with the decree on this ground.

The next contention is that no Panch from the area in which the defendant resides was included in the Panchayat which decided the case as required by Section 49 (2) of the Vindhya Pradesh Gram Panchayat Ordinance.

It was held in - ''Mohan Lal v. Sarpanch Panchayati Adalat'', 1954 All 159 (AIR V 41) (A), that the defect in the constitution of a Bench of Panchayati Adalat caused by non-compliance of the provisions of Section 49 (2) of the Act is not a jurisdictional defect and is waived if no objection is raised against it. The applicant did not object to the Bench that it was improperly constituted when the trial took place. He is accordingly estopped from objecting to it after the suit has been decreed against him.

Lastly it was pointed out that no Bench of five Panchas for the trial of the two cases was formed as required by Section 49 (1), that the decision was ultimately given by six Panchas and that all of them did not attend all the hearings and it was contended that the decision given was accordingly without jurisdiction and should be set aside. On behalf of the respondent it was argued that these points were neither raised before the Nyaya Panchayat nor were they taken in revision before the learned Munsiff and that they could not be raised in a writ of certiorari.

The cases of - ''M. U. M. Services Ltd. v. Regional Transport Authority'', 1953 Mad 59 (AIR V. 40) (B). and ''G. M. T. Society v. State of Bombay", 1954 Bom 202 (AIR V. 41) (C), were cited in support of the contention. In the Madras case ah earlier Full Bench case of the same High Court was followed which is reported in ''Latchmanan Chettiar v. Corporation of Madras'', 1927 Mad 130 (AIR V 14) (FB) (D). In that case the jurisdiction was challenged on the ground that the Tribunal was empowered to inquire into the disabilities appearing on the face of the nomination paper but they travelled outside their jurisdiction and went into a matter of substance which was arguable only on grounds not appearing on the face of the nomination paper. It was not a case of total want of jurisdiction on the face of the proceedings.

In the Bombay case reliance was placed on-

''Rex v. Williams; Ex parte Phillips'', (1914) 1 KB 608 (E). In that case a baker was charged under S. 4 of the Bread Act, 1836 and by S. 14 of the Act no person who was concerned in the business of baker was capable of acting or could be allowed to act as a Justice of the Peace under the Act.

The petitioner did not raise any objection when the case was before the Justice of the Peace that one of them was a baker. This was a question of fact which should have been raised by the petitioner in order to oust the baker from the tribunal. It was, therefore, held that having not taken that objection when the case was before the. justice of the Peace the petitioner had no risk to obtain a writ of certiorari, It was not a case of total lack of jurisdiction on the face of the proceedings. It was observed, in - Oholpur Co-operative T. and M. Union Ltd. v Appellate Authority (Transport) Rajasthan'', 1953 Raj 193 (AIR V 40) (F):

It is true that if a party does not raise any objection to the jurisdiction of a Court or a tribunal which depends upon the allegation or proof of certain facts that party will not be allowed to raise objection about jurisdiction in an application under Art. 226. Where however lack of jurisdiction is patent the mere fact that no objection was taken before the statutory authority would not disable the applicant from raising such question in an application under Art.226.

I accordingly hold that the applicant is not debarred from taking the above points in the present application.

Section 49 (1) of the Vindhya Pradesh Gram Panchayat Ordinance provides that the Sarpanch shall for the trial of every case, suit or proceeding form a Bench of five Panchas from the panel. It is one of the fundamental principles of the trial of cases in the Courts of law that all the judges constituting a Bench should hear the case and decide it. The decision is vitiated firstly as all the Panches who decided the case did not here it and secondly as six Panches decided it instead of five. A matter affecting the constitution of the tribunal is a matter involving jurisdiction. The decisions in both the cases are thus without jurisdiction.

I accordingly allow both the applications and set aside both the decrees passed by the Panchayat. The jurisdiction of the Nyaya Panchayat in respect of the causes of action on which the two suits were based is cancelled. It will be open to the plaintiff to institute a suit or suits on the same causes of action and for the same reliefs in the Court of the Munsiff having jurisdiction and the period from the date of the institution of the suits before the Nyaya Panchayat to the date of the order of this Court shall be excluded in computing the period of limitation for the fresh suit or suits. I direct that the parties shall bear their own costs.