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1994 DIGILAW 16 (MP)

MOHD. HUSSAIN v. BACHHUSINGH AND OTHERS

1994-01-11

M.W.DEO, V.D.GYANI

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( 1 ) THIS order shall also govern the disposal of Misc. Petition No. 2163 of 1993 (Pawankumar Jaiswal v. Bachusingh Jurel), Misc. Petition No. 2164 of 1993 (Ratanlal Jain v. Bachusingh Jurel) and Misc. petition No. 2165 of 1993 (Fakir Mohammad v. Bachusingh Jurel) as identical questions are raised in all the petitions. ( 2 ) BY this petition under Art. 226/227 of the Constitution of India, the defendant/ petitioner seeks quashment of Annexure-'33' which is an order of Civil Judge, Class-Ist, Manawar dt. 4-2-1986 and Annexure-'6' which is the revision order dt. 22-2-1993 passed by the Additional District Judge, Dhar, Camp at Manawar confirming Annexure-'3'. ( 3 ) BRIEFLY stated the facts necessary for deciding the petition may be stated thus. Municipal Committee, Manawar was admitted to supersede under S. 328 of the M. P. Municipalities Act, 1961 (for short 'the Act') and an Administrator (prashasak) was appointed. Subsequent to this, the present suit was filed by the Nagar Palika through its C. M. O. against the present petitioner contending inter alia that the petitioner in collusion with respondent No. 2 (an erstwhile Municipal Councillor) and respondent No. 3 (a Sanitary Inspector) had obtained a lease of plot of land. The suit claimed relief of declaring lease to be void and to secure possession of the plot from the present petitioner. ( 4 ) ON objections raised by the present petitioner/defendant, it was held by the learned Civil Judge, Class-Ist that (1) the suit as brought by the plaintiff described in the plaint was maintainable; (2) the suit was not. barred by time; (3) the suit was not bad for want of a notice under S. 319 of the Act; and (4) that the suit was not bad on account of non-joinder of State of Madhya Pradesh as a party. The aforesaid findings were confirmed by Annexure-'6' which is an order in revision taken against the order passed by the trial Court. ( 5 ) DEALING with the questions in seriatim, it is to be seen that the learned Civil Judge was right in holding that it was a case of wrong description of the name of the plaintiff and not a case of a wrong plaintiff. ( 5 ) DEALING with the questions in seriatim, it is to be seen that the learned Civil Judge was right in holding that it was a case of wrong description of the name of the plaintiff and not a case of a wrong plaintiff. In this connection it is to be noted that subsequent to the passing of the impugned order Annexure 3' by the trial Court, the plaintiff moved an application for amendment to amend the title of the plaint by substituting the word 'commissioner' by the word 'administrator' and admittedly the suit by Administrator was maintainable. It is to be seen that the petitioner had not taken any revision against this order allowing the amendment nor has this order Annexure-'5-A' being challenged even in this petition. A reference to O. I R. 10 CPC clearly shows that where a suit appears to be instituted in the name of the wrong person as plaintiff of where it is doubtful whether it has been instituted in the name of the right plaintiff; the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted as plaintiff on such terms as the Court thinks fit. In the facts of the present case there is absolutely no doubt that the wrong description of the plaintiff was result of bona fide mistake as it is on record that the suit was filed after the supersession of the municipality and the Administrator had directed the C. M. O. to file the suit. The title was described as Municipal Committee Manager through C. M. O. Now the Municipality having been superseded, infact the correct description ought to have been the Administrator of the Municipality. Order I R. 10 is precisely meant to come to the rescue of such technical mistakes which are not uncommon to happen particularly in mofussil area like Manawar. Consequently the plaint as it is stand now, is with correct description of the plaintiff and as such the suit is maintainable with that description. Order I R. 10 is precisely meant to come to the rescue of such technical mistakes which are not uncommon to happen particularly in mofussil area like Manawar. Consequently the plaint as it is stand now, is with correct description of the plaintiff and as such the suit is maintainable with that description. ( 6 ) THE question relating to the statutory notice under S. 319 of the Act creates no difficulty for the simple reason that a notice is necessary only in case of a suit against the Municipality or a Councillor or Officer there of. Notice is not necessary for a suit by the Municipal Committee. In this case the suit is by the Municipal Committee. It was said that the suit was against respondents Namdar s/o Mohd. Khan who was a councillor and Mansoor Ahmed Khan who was a Sanitary Inspector and as such an officer of the Municipality and, therefore, the notice was necessary. It is plain that the supersession of the Municipality, the respondent No. 2 did not remain a Councillor at all. Again as stated earlier a notice under S. 319 of the Act is not contemplated to be necessary in case of a suit by the Municipal Committee. Consequently the present suit was not bad for want of notice under S. 319 of the Act. That also solves the question of limitation which was based on the want of aforesaid notice itself. ( 7 ) THAT leaves the last point about nonjoinder of State of Madhya Pradesh as a party. It was said that as a consequence of superssession of the Municipality under S. 328 of the Act, the consequences under sub-sec. (6) (c) that all properties vested in the Council would, until the Council is reconstituted, vest in the State Government and, therefore, the suit was bad for want of State Government being a party. The contention is hyper technical and does not deserve to be admitted for the scheme of supersession provides that on supersession all powers and duties of the Council under this Act, until the Council is reconstituted, are to be exercised and performed by a person - the Administrator in this case, as the State Government may appoint in that behalf. Consequently the Administrator anywhere being appointed by State Government itself non-joinder of State Government as a party to the present suit was certainly not fatal. Consequently the Administrator anywhere being appointed by State Government itself non-joinder of State Government as a party to the present suit was certainly not fatal. ( 8 ) THE scope under Art. 227 of the Constitution of India is very limited and the powers have to be invoked only to step in aid for preventing grave and patent injustice if it appears to be the result of the impugned order. It is not that in every case of incorrect order, jurisdiction under Art. 227 is to be exercised to correct it. In the present case we find that it is one of the rare incidents where the Administrator of a Municipal Committee has taken steps to file a suit to get possession of a plot of land to Municipal Committee instead of taking recourse to coercive action. We do not think it to be a fit case to invoke jurisdiction under Art. 227 of the Constitution of India. ( 9 ) THE petition is consequently dismissed summarily without notice to the otherside. Petition dismissed. .