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2010 DIGILAW 495 (AP)

Neela Swaroopa v. Gunda Radhika

2010-06-21

R.SUBHASH REDDY

body2010
ORDER This civil revision petition, under Article 227 of the Constitution of India, is filed aggrieved of the order dated 05-05-2010, passed in S.R.No.2698 of 2010, by the learned Principal Junior Civil Judge, Warangal. By the aforesaid order, before numbering of the suit, on the objections raised by the respondents-defendants with regard to maintainability, the court below rejected the plaint filed by the petitioner/plaintiff. The petitioner herein filed the suit with the following reliefs: (a) restraining by perpetual injunction the defendants in general, D2' s officials, employees, workmen and servants in particular, from invading the plaintiffs rights to construct her house as also restraining them and their yes-men, employees, heirs, agents, legal representatives and all persons not to interfere with the possession and enjoyment of the suit-schedule property by the plaintiff, (b) award costs of the suit, (c) grant such other and further reliefs as it may deem fit and just to it in the circumstances of the case and also in the interest of justice. 2. It is the case of the petitioner-plaintiff that she applied for grant of building permission and as there was no rejection within the statutory period; on the ground that there is a deemed sanction within the meaning of Section 437 of Hyderabad Municipal Corporations Act, 1955 (for short 'the Act') she proceeded with the construction. It is stated that alleging interference by the respondents over her property, she filed the aforesaid suit. 3. The office has raised an objection at the stage of scrutiny with regard to maintainability of the suit on the ground that the son of the plaintiff, who is having a share in the suit schedule property, is not impleaded; as such the suit is not maintainable. On the aforesaid objections, when the matter was being argued, further objection was raised with regard to maintainability of the suit on the ground that though relief is sought against the Commissioner, Municipal Corporation of Warangal, no notice was issued as contemplated under Section 685 of the Act. On the aforesaid objections, when the matter was being argued, further objection was raised with regard to maintainability of the suit on the ground that though relief is sought against the Commissioner, Municipal Corporation of Warangal, no notice was issued as contemplated under Section 685 of the Act. With regard to the first objection, namely that the son of the petitioner-plaintiff was not made party to the suit, the court below, by the impugned order, overruled the same, but on the second objection, namely with regard to issuance of notice under Sec. 685 of the Act, has recorded a finding that the suit against Municipal Corporation of Warangal is not maintainable without notice under Section 685 of the Act and ordered for rejection of the plaint. As against the said order, the present civil revision petition is filed. 4. Heard Sri G. Kishore Kumar, learned counsel for the petitioner and also Sri A. Ravinder, learned counsel for the respondents. 5. It is argued by learned counsel for the petitioner that as much as the suit is filed for injunction simpliciter, no notice need be issued before filing of the suit as contemplated under Section 685 of the Act. In support of his argument, learned counsel for the petitioner has relied on a judgment of the Supreme Court in the case of Devi Singh v. Municipal Corporation, Hyderabad (1) AIR 1972 SC 2510 and also the judgment of a learned single Judge of this court in the case of Viqarunnissa Begum(died) and others v. Municipal Corporation of Hyderabad (2) 2009 (2) ALT 652 = 2010 (3) ALD 47 . It is stated that, in any event, the said ground is no ground for rejection of the plaint within the meaning of Order VII Rule 11 of the Code of Civil Procedure, 1908. 6. On the other hand, it is contended by Sri A. Ravinder, learned counsel for the respondents, that, in this case, the second respondent has taken action and demolished the structures as there was no permission; in that view of the matter, notice as contemplated under Section 685 of the Act is mandatory before filing of the suit. 6. On the other hand, it is contended by Sri A. Ravinder, learned counsel for the respondents, that, in this case, the second respondent has taken action and demolished the structures as there was no permission; in that view of the matter, notice as contemplated under Section 685 of the Act is mandatory before filing of the suit. It is further contended that the said action is an action which is intended for implementation of the provisions of the Act within the meaning of Section 685(1) of the Act and no suit is maintainable without notice to the Municipal Corporation. In support of his contentions, learned counsel for the respondents relied on a judgment of a learned single Judge of this court in the case of Mohd. Abdul Basith v. Smt. Razia Begum (3) 1996 (3) ALT 280. In the aforesaid judgment, the learned Judge has taken a view that rejection of the plaint on any ground even other than the ground mentioned under Order VII Rule 11 CPC, amounts to decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908; hence, a regular appeal lies, but such an order cannot be questioned in a revision petition. 7. In view of the contentions advanced by learned counsel for the parties, the primary question which is required to be considered is; in view of the relief sought in the suit by the plaintiff, whether the suit is maintainable without issuance of notice as contemplated under Section 685 of the Act. Though learned counsel for the petitioner has relied on the judgment in the case of Devi Singh (1 supra), but, in the said case, suit was filed for injunction against the Municipality to restrain it from interfering with the plaintiff's peaceful possession and enjoyment of Bazar in the suit. As such, the whole controversy was whether the Bazar was the property of the plaintiff or not. In that context, the Hon'ble Supreme Court has held that no notice need be issued before filing of the suit. Even in the case of Viqarunnissa Begum (2 supra), it was the case of the plaintiff that there is illegal interference with the possession of the property owned by her, by the Corporation; as such, injunction was sought. In that context, the learned single Judge has held that no notice need be issued before filing of the suit. Even in the case of Viqarunnissa Begum (2 supra), it was the case of the plaintiff that there is illegal interference with the possession of the property owned by her, by the Corporation; as such, injunction was sought. In that context, the learned single Judge has held that no notice need be issued before filing of the suit. In the instant case, it is to be noted that it is the case of the petitioner-plaintiff that she has applied for building permission, but there was no refusal within the statutory period; as such on the ground of deemed sanction, she proceeded with the construction. Even according to the petitioner, the alleged interference by the respondents with the proposed construction is on the ground that no permission as required under the Act was obtained. In that view of the matter, the steps that were being taken by the respondents are in the context of execution of the provisions of the Act, within the meaning of Section 685(1) of the Act. Hence, both the judgments relied on by learned counsel for the petitioner would not render any assistance in support of his argument, that no notice need be issued to pursue the suit against the respondents. In contrast of the fact in the above-referred judgments relied on by learned counsel for the petitioner, in this case, interference by the respondents, if any, is only on account of not obtaining permission from the competent authority. Hence, this court is of the view that no suit is maintainable without issuing notice under Section 685 of the Act, as made applicable to Municipal Corporation of Warangal. It is further to be noticed that in view of the definition under Order II Rule 2 CPC (sic. Section 2 (2)), rejection of the plaint is a decree; as such an appeal lies under Section 96 CPC. When a regular appeal is provided against the order of rejection of plaint, the petitioner cannot challenge the validity of the impugned order in this revision filed under Article 227 of the Constitution of India. Further, the judgment relied on by the learned counsel for the respondents in the case of Mohd. When a regular appeal is provided against the order of rejection of plaint, the petitioner cannot challenge the validity of the impugned order in this revision filed under Article 227 of the Constitution of India. Further, the judgment relied on by the learned counsel for the respondents in the case of Mohd. Abdul Basith (3 supra), wherein the learned Judge has taken a view that rejection of the plaint on any ground even other than the ground mentioned under Order VII Rule 11 CPC, amounts to decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908; hence, a regular appeal lies, but such an order cannot be questioned in a revision petition, supports the case of the respondents. 8. For the foregoing reasons, I do not find any illegality in the order passed by the court below, which warrants interference in this petition filed under Article 227 of the Constitution of India. 9. The civil revision petition is accordingly dismissed, however, in the circumstances, with no costs.