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Andhra High Court · body

2008 DIGILAW 392 (AP)

Bobbili Municipality Bobbili v. K. Sugunamma

2008-06-20

P.S.NARAYANA

body2008
ORDER Bobbili Municipality-the plaintiff in O.S.No.74/2003 on the file of Principal Junior Civil Judge, Bobbili being aggrieved of the order dt.1-9-2003 made in I.A.No.506/2003 in O.S.No.74/2003 preferred the present Civil Revision Petition. The respondent in the C.R.P. is the petitioner in I.A.No.506/2003 and defendant in O.S.No.74/2003 aforesaid. 2. The application was filed under Order VII Rule 11(a) and (d) of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) read with Section 29(1) and Section 30 of the Andhra Pradesh (Agricultural Produce and Livestock) Market Act 1966 (hereinafter in short referred to 'the Act' for the purpose of convenience) and prayed for rejection of the suit. The learned Principal Junior Civil Judge, Bobbili after referring to Section 29(1) of the Act and Section 30 of the Act and also Section 23 of the Indian Contract Act, after recording reasons, came to the conclusion that in the light of Sections 3, 29(1) and 30 of the Act aforesaid, jurisdiction of the Civil Court is barred to try the suit and accordingly allowed the application. Aggrieved by the same, the present Civil Revision Petition had been preferred. 3. Sri Nageshwar Reddy, the learned Counsel representing Revision Petitioner would maintain that the suit was filed by the plaintiff only for the recovery of the amount due under the agreement. Further the learned Counsel also would maintain that the learned Principal Junior Civil Judge, Bobbili should have appreciated whether the ingredients of Order VII Rule 11 (a) or (d) were satisfied or not at this stage but however the learned Judge had entered upon the merits and demerits of the matter since such facts are to be decided and findings are to be recorded after the parties adduced the evidence and not at the stage of considering an application praying for rejection of the plaint. The Counsel also would maintain that even on the reading of Sections 3, 29 and 30 of the Act and also Section 23 of the Indian Contract Act, it cannot be said that a civil suit is barred. Hence, the impugned order is liable to be set aside. 4. The Counsel also would maintain that even on the reading of Sections 3, 29 and 30 of the Act and also Section 23 of the Indian Contract Act, it cannot be said that a civil suit is barred. Hence, the impugned order is liable to be set aside. 4. On the contrary, Sri Bhaskara Rao, the learned Counsel representing respondent-defendant would maintain that in the light of the facts which had been well explained in the affidavit filed in support of the application and also in the light of the provisions of the Act, the learned Judge recorded reasons and ultimately allowed the application. Further the learned Counsel also placed strong reliance on A.P.Fruit Merchants Hyd V. M.C.H.1 and would maintain that in the light of the reasons recorded by the learned Judge, it is not a fit matter to be interfered with in a Civil Revision Petition. 5. Heard the Counsel. 6. Respondent herein filed I.A.No.506/2003 in O.S.No.74/2003 on the file of Principal Junior Civil Judge, Bobbili under Order VII Rule 11 (a)( and (d) of the Code read with Sections 29(1) and 30 of the Act praying for rejection of the plaint. Incidentally, Section 3 of the Act and also Section 23 of the Indian Contract Act, 1872 had been referred to. It may be appropriate to have a look at Order VII Rule 11 (a) and (d) of the Code and Order VII Rule 11 (a) of the Code reads as hereunder:- "The plaint shall be rejected where it does not disclose a cause of action." Likewise, Order VII Rule 11 (d) of the Code reads as hereunder: "The plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law." Likewise, Section 3 of the Act deals with declaration of notified area. Section 29 of the Act deals with payment of compensation in respect of markets in Municipalities and in areas within jurisdiction of other local authorities. No doubt, reliance was placed on the language in sub-Section (1) of Section 29 of the Act "where in pursuance of Section 3, the Government notify any area comprised within the local limits of the jurisdiction of a Municipality or other local authority, no such Municipality or other local authority shall levy fees on any notified agricultural produce, livestock or products of livestock purchased or sold in the notified area". Section 30 of the Act deals Act to override other Laws. Section 23 of the Indian Contract Act, 1872 reads as hereunder:- "What considerations and objects are lawful, and what not:- The consideration or object of an agreement is lawful, unless – it is forbidden by law; or is of such a nature that, if permi9tted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void." Reliance was placed on A.P.Fruit Merchants Hyd's case (referred 1 supra) wherein the learned Judge of this Court while dealing with Sections 2(1), 3, 4, 29, 30 and 31 of the Act observed as hereunder:- "It is clear that after the notification under Section 3(3), the Municipal Corporation of Hyderabad was deprived of its power to levy any fee on any agricultural produce purchased or sold within the notified area, nor can any provision in the H.M.C.Act relating to the establishment, maintenance or regulation of a market or the levy of the fees therein, comes to the rescue. The Municipal Corporation of Hyderabad is not dis-entitled from collecting compensation (or rent, as the case may be) from occupiers of its open land, or stalls or shops, or godowns, or other buildings. It is not entitled to collect any fee on the sale and purchase of notified agricultural produce, livestock and products of livestock. It cannot collect any fee or other charges merely because lorries, carts or other vehicles, or persons pass along or stand on the roads, either in the market or in the notified market area. Even if such persons carry on any business on the road itself, no compensation can be collected from them by the Municipal Corporation. It may be that such carrying on of business on public road is prohibited by the H.M.C.Act, rules or bye laws made thereunder. Even if such persons carry on any business on the road itself, no compensation can be collected from them by the Municipal Corporation. It may be that such carrying on of business on public road is prohibited by the H.M.C.Act, rules or bye laws made thereunder. If there is any such provision in the Act, or the Rules or bye-laws, such trading may be illegal but certainly, the Municipal Corporation cannot collect any compensation or any other charge, by whatever name it is called, merely because vehicles or men pass along or, carry on their trade on a public road. It is clear, that if any person wants the exclusive use of a portion of an open land, or a stall, or any other property belonging to the Municipal Corporation, it can as an owner collect compensation from them - Whether the occupation is for a day, week or more - It is obvious that these directions are confined only to the agricultural produce, livestock and products of livestock." 7. The specific stand taken in the application is that the Municipality has no right to collect the market rentals from the respondent herein - the defendant in the suit as per the provisions of the Act aforesaid. The petitioner herein - the plaintiff in the said suit resisted the said application by taking a specific stand that it is for the Municipality to collect the rentals and the right of Municipality cannot be questioned on untenable grounds. The relevant provisions on the strength of which the learned Principal Junior Civil Judge made an order allowing the application and rejecting the plaint already had been referred to above. It is needless to say that the question whether in fact the plaintiff is entitled to the reliefs prayed for or not, these aspects may have to be decided at the appropriate stage on appreciation of evidence which may be let in by the parties. For rejecting the plaint, the ingredients of Order VII Rule 11 (a) or (d) to be satisfied and unless the said ingredients are satisfied, an order of rejection cannot be made. Several of the factual controversies which may have to be gone into at the appropriate stage cannot be taken as operating as a bar for maintainability of the suit. For rejecting the plaint, the ingredients of Order VII Rule 11 (a) or (d) to be satisfied and unless the said ingredients are satisfied, an order of rejection cannot be made. Several of the factual controversies which may have to be gone into at the appropriate stage cannot be taken as operating as a bar for maintainability of the suit. In the light of the same, the impugned order is hereby set aside and the Civil Revision Petition is allowed. No costs. Inasmuch as, the suit is pending for sufficiently a long time, let the learned Judge expedite the further proceedings in the suit.