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2002 DIGILAW 208 (KAR)

Poornapragyana v. Shantadevi

2002-03-14

V.GOPALA GOWDA

body2002
ORDER V. Gopala Gowda, J.--This second appeal is filed by the Plaintiff in O.S. No. 68 of 1990 on the file of the Civil Judge (Jr. Dn.), Gangavati questioning the judgment and decree of the first appellate Court allowing the appeal in R.A. No. 20 of 1997, setting aside the judgment and decree of the trial Court dated 7.8.1997 and remanding the matter for fresh disposal for the reasons stated in paragraph 23 of the judgment. 2. Heard the learned Counsel for the parties and perused the impugned judgment. 3. The suit was filed by the Plaintiffs under Section 91 Code of Civil Procedure seeking injunction restraining the Defendant from encroaching upon 20 feet public road. The stand taken by the Defendant that the suit was bad for non-joinder of Town Municipal Council and other owners of the plots has been rejected by the trial Court holding that the suit was for mere injunction against the Defendant and no relief is claimed against the T.M.C. or owners of other plots. Consequently, the trial Court decreed the suit. But, the first appellate Court set aside the judgment and decree of the trial Court on two grounds and they are (1) no declaration is sought in the suit and (2) the T.M.C. is not made a party. 4. The first appellate Court extracted Section 91(1) Code of Civil Procedure and gave much importance to the wordings "suit for declaration and injunction" in Section 91(1) Code of Civil Procedure and arrived at the conclusion referred to above. But, the first appellate Court has conveniently ignored the words "or for such other relief as may be appropriate in the circumstances of the case" in the same provision. A combined reading of Section 91(1) Code of Civil Procedure makes it clear that in case of public nuisance or other wrongful act, a suit for declaration and injunction or for other reliefs can be instituted. If declaration is not sought in the suit, the suit will not be defective. The first appellate Court failed to consider these aspects of the matter. Hence, the judgment and decree of the first appellate Court is contrary to Section 91(1) Code of Civil Procedure and bad in law. 5. The first appellate Court in paragraph 15 of its judgment states that it is not clear whether it is a municipal road or a private road. Hence, the judgment and decree of the first appellate Court is contrary to Section 91(1) Code of Civil Procedure and bad in law. 5. The first appellate Court in paragraph 15 of its judgment states that it is not clear whether it is a municipal road or a private road. The Court assigned reasons at paragraph 16 in support of its finding that T.M.C. is a necessary party. Those reasons are beyond the scope of the suit. What is in issue is whether there is encroachment upon the road or not by the Defendant. If there is encroachment, the judgment and decree of the trial Court is justified. If there is no encroachment by the Defendant upon the road, the injunction granted by the trial Court will not cause any harm to her. In other words, if the construction by the Defendant is within her property and in accordance with the sanctioned plan, the injunction granted by the trial Court will not affect her. Since no relief is claimed against the T.M.C. or other plot owners, the reasons assigned by the first appellate Court at paragraph 23 of its judgment are untenable. The judgment of the first appellate Court is also contrary to the decision reported in AIR 1977 Ker 165 wherein it is held that since no relief is claimed against the State, the State is not a necessary party. It is also pertinent to note that the first appellate Court at paragraph 15 has stated that "the dispute pertains to a public road". Again at the end of paragraph 20 while holding that the two decisions referred to therein are not applicable to the present case, the reason assigned is "because the dispute is pertaining to public road". Public road will not be a private road and all public roads vest in the local bodies. That does not mean that the T.M.C. is a necessary party in the suit even though no relief is claimed against it. Thus, the judgment and decree of the first appellate Court in remanding the matter to the trial Court are wholly erroneous and bad in law. 6. For the reasons stated above, the appeal is allowed and the judgment and decrees of the first appellate Court are set aside. The judgment and decree of the trial Court are confirmed. No costs.