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2010 DIGILAW 2140 (PNJ)

Satnam Singh v. Smt. Jindo

2010-07-28

L.N.MITTAL

body2010
Judgment L.N.Mitta, J. 1. This is application for impleading legal representatives of plaintiff Jamal Masih (since deceased), who died during pendency of the first appeal. It is alleged in the application that the deceased plaintiff has left behind widow, three sons and three daughters, as mentioned in paragraph 2 of the application, as his only legal heirs. The application is accompanied by affidavit. Accordingly, the application is allowed, subject to all just exceptions and persons mentioned in paragraph 2 of the application are ordered to be brought on record as legal representatives of plaintiff-Jamal Masih (since deceased), for the purpose of this appeal. Main Appeal Instant second appeal has been filed by defendants Satnam Singh and his father Kapur Singh, who remained unsuccessful in both the courts below. 2. Suit was filed by Jamal Masih (since deceased and represented by respondents as legal representatives). The plaintiff alleged that there is a public street in Village Kalanaur, comprised of khasra no.522/1. Defendants house is located on southern side of the said street. Plaintiffs house is also located along the street. Defendants have encroached upon a portion of the disputed street by raising walls from points A to B and from B to C, as depicted in the site plan and thereby, encroached upon the street and they intended to raise further construction in the street. The aforesaid encroachment is causing public nuisance and is also causing hardship to the plaintiff. Accordingly, plaintiff sought mandatory injunction for removal of the encroachment already made and also permanent injunction from raising any construction over any part of the street. 3. Defendants admitted the existence of the street, although alleged that there is no khasra number of the street. Defendants also admitted that house of the defendants is located on southern side of the adjoining street. Location of the plaintiffs house in the same street is denied. Defendants also denied that they have encroached upon any part of the street. Various other pleas were also raised. 4. Learned Civil Judge (Senior Division), Gurdaspur, vide judgment and decree dated 27.03.2002, decreed the plaintiffs suit. First appeal preferred by the defendants stands dismissed by learned Additional District Judge (Adhoc), Fast Track Court, Gurdaspur, vide judgment and decree dated 02.05.2009. Feeling aggrieved, defendants have preferred the instant second appeal. 5. I have heard learned counsel for the appellants and perused the case file. 6. First appeal preferred by the defendants stands dismissed by learned Additional District Judge (Adhoc), Fast Track Court, Gurdaspur, vide judgment and decree dated 02.05.2009. Feeling aggrieved, defendants have preferred the instant second appeal. 5. I have heard learned counsel for the appellants and perused the case file. 6. Learned counsel for the appellants vehemently contended that suit filed by the plaintiff relating to public nuisance is barred by Section 91(1) of the Code of Civil Procedure (in short - CPC), which stipulates that suit relating to public nuisance may be filed either by Advocate General or with the leave of the Court, by two or more persons, whereas in the instant case, the suit was filed by Jamal Masih alone and leave of the Court was also not sought for filing suit. 7. I have carefully considered the aforesaid contention, but find no merit therein, although apparently the contention sounds very forceful. Section 91(1) CPC is an enabling provision and it has enlarged the scope of locus standi to file a suit. Normal rule of law is that a person, having right or being effected by a wrongful act of the opposite party, has locus standi to file the suit. However, under Section 91(1) CPC, even persons to whom no special damage has been caused by the public nuisance or other wrongful act, may also file the suit by complying with the conditions stipulated in Section 91(1) CPC. However, this provision does not, in any manner, restrict the right of a person, who independently of this provision, has right or locus standi to file the suit in view of wrong caused to him. This fact is made further clear by Section 91(2) CPC, which provides amount of Rs.234060.60 on account of defective meter. It was further found that no defect was found in the meter by the staff of the appellant-Department who was regularly checking the meter and the amount cannot be charged on Audit objection as they were not competent to determine the amount. It was further found by the Lower Appellate Court that at the time of alleged inspection of the meter, the plaintiff-respondent was not present and no proper opportunity was given to him besides observing that there is no dispute that the meter was not tampered by the plaintiff-respondent. It was further found by the Lower Appellate Court that at the time of alleged inspection of the meter, the plaintiff-respondent was not present and no proper opportunity was given to him besides observing that there is no dispute that the meter was not tampered by the plaintiff-respondent. Thus, keeping in view there said finding on issues No. 1 and 2, finding under issues No.3 and 4 were also reversed m favour of the plaintiff-respondent and the suit was decreed. 8. Not satisfied from the aforesaid judgment and decree of the Lower Appellate Court, the defendants have filed the instant appeal challenging the impugned decree raising the following substantial questions of law said to be arising in this appeal: "(a) Whether prior notice is required for deciding the period of assessment once checking and defect in the meter is admitted? (b) Whether it was the duty of the plaintiff to represent before the higher authorities after receiving the bill? (c ) Whether the plaintiff was to avail the other remedies available to him as per notification dated 17.1.1998?" 9. In support of this appeal, learned counsel for the appellants has vehemently argued that once the defect in the meter was admitted, no notice was required for assessment at the time of raising the demand. It was further argued by the learned counsel for the appellants that as per notification dated 17.1.1998 as reproduced in the foregoing paragraph, the plaintiff-respondent failed to exhaust the other remedies available to him before filing the suit and no finding has been recorded by the Lower Appellate Court in this regard. Learned counsel has further argued that admittedly, one phase of the meter in question was not working and according to the respondents own case, they had deposited a sum of Rs.49,857/- as assessed by the S.D.O which was illegal and therefore, there was nothing wrong in raising the demand on the basis of audit objection. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the substantial questions of law as raised by him do arise in this appeal and the same is liable to be accepted and therefore, the impugned judgment and decree liable to be set aside. 10. I have heard learned counsel for the appellants and perused the impugned judgment and decree. 11. The facts of this case are not in dispute. 10. I have heard learned counsel for the appellants and perused the impugned judgment and decree. 11. The facts of this case are not in dispute. While making inspection on 9.5.1998, one phase of meter in question was found to be defective by the inspection staff though no tampering by the plaintiff respondent was found. It is also not in dispute that earlier a sum of Rs.49,857/- was deposited by the plaintiff-respondent as the penalty imposed the appellants. Admittedly, the impugned demand of Rs.2,34,060.60P has been made by the appellant-Department, on the basis of an audit objection. There is nothing on record to prove that the aforesaid demand raised by the appellant is in consonance with the rules/regulations framed by the appellants, neither any such rule/regulation has been pleaded or relied upon by the appellants to justify the demand raised. Moreover, no notice had been given to the plaintiff-respondent before raising the aforesaid demand to enable him. to submit any si h objection/defence. Thus, the demand raised by the appellants is arbitrary and in violation of the principles of natural justice and is not sustainable at law. It is well settled that the jurisdiction of the Civil Court is much wider and the same cannot be ousted wherever the action of the opposite party is found to be illegal. Moreover, in the present case, the notification relied upon by the appellants does not impose any bar upon the plaintiff respondent from approaching the Civil Court for any illegal demand raised by the appellants. No substantial question of law arises in this appeal. Thus, I find no merit in this appeal. Dismissed.