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Madhya Pradesh High Court · body

2011 DIGILAW 430 (MP)

Kanta v. Arvind Tare

2011-04-06

J.K.MAHESHWARI

body2011
ORDER J.K. Maheshwari, J. 1. This revision under Section 115 of the Code of Civil Procedure, 1908 (in short 'the Code') has been filed assailing the order dated 21-1-2011 passed by the 10th Additional District Judge, Indore in Misc. Case No. 10/2010 whereby the application filed by the applicants under Order 7 Rule 11 of the Code was rejected. 2. The facts of the case are that the applicants decree-holders filed Civil Suit No. 26-A/2009 against the Municipal Corporation, Indore and State Government which was decreed on 18-3-2010. The said suit relates to plot bearing No. 119-A having boundaries in east A.B. Road, in West Janki Nagar Main Road, in North Plot No. 53 Annex Janki Nagar and in South Plot No. 118 Janki Nagar, Indore for declaration, to deliver vacant possession and to restrain them for interfering in construction. It was decreed in part with a direction to deliver the possession of the suit land to the Plaintiffs. During pendency of the execution proceedings non-applicant No. 1 had filed an application under Order 21 Rule 97 read with Section 151 of the Code stating that he is the resident of Janki Nagar and also in occupation to use the public road situated at Plot No. 53 Annex and in between Plot No. 118-A. On coming to know the delivery of the possession of Plot No. 119-A to the applicants in terms of the judgment of the Court, he has filed the application and said that the land is in use of the people of the Colony Janki Nagar and against the lay out by the Town and Country Planning without authority under the law it has been converted into plot though it is a thoroughfare, however, on the basis of a decree of the said thoroughfare converting it into plots possession ought not be delivered without enquiry and furnishing opportunity of hearing. Objections in view of the provisions of Section 6(2) of the Specific Relief Act have also been raised. It is also contended that Writ Petition No. 3431/2010 has been filed by one resident of said Janki Nagar wherein this Court has passed an order that the Respondents shall not close the entry and exit to the public road situated in between Plot No. 53 Annex and 118-A at Janki Nagar, Indore. It is also contended that Writ Petition No. 3431/2010 has been filed by one resident of said Janki Nagar wherein this Court has passed an order that the Respondents shall not close the entry and exit to the public road situated in between Plot No. 53 Annex and 118-A at Janki Nagar, Indore. In view of the aforesaid prayer is made to allow the said application and an enquiry may be conducted in this regard after giving an opportunity of hearing to non-applicant No. 1. 3. On filing such application, reply has been filed by the applicants and thereafter an application under Order 7 Rule 11 of the Code has also been filed stating that the non-applicant No. 1 is neither decree-holder nor purchaser of the land, however, he is having no locus standi to file objection. It is further contended that the decree which was passed by the Trial Court relates to Plot No. 119-A, to which he is not a interested person. In view of the aforesaid, prayer was made to dismiss the said application. Reply to the said application has also been filed by the non-applicant stating the fact that the decree has been passed of a public road which is not the Plot No. 119-A without furnishing an opportunity to them. It is also stated that if the Public Road of use of the residents is closed they are having right to raise objection. It is also contended that provisions of Order 7 Rule 11 of the Code are having no application and such application is not maintainable. It is further contended that the Plot No. 119-A Janki Nagar for which the decree has been granted is not a plot situated in Janki Nagar, Indore in the map sanctioned by the Town and Country Planning. In view of the aforesaid, prayer is made to reject the application. 4. The State Government by filing their reply to the application under Order 21 Rule 97 of the Code stated that they were proceeded ex parte in civil suit and due opportunity was not allowed to them. It is also stated that the land in question relates to Plot No. 119-A is a Government land and in use of public as road for the residents of Janki Nagar, however, appropriate orders may be passed. 5. It is also stated that the land in question relates to Plot No. 119-A is a Government land and in use of public as road for the residents of Janki Nagar, however, appropriate orders may be passed. 5. The Trial Court while rejecting the said application by the order impugned held that after considering the arguments and pleadings as raised, the possession of the place sought, prima facie shown as public way. In such circumstances without enquiry rejection of the application is undesirable. Accordingly, the application under Order 7 Rule 11 of the Code filed by the applicant/decree-holder was rejected. 6. Shri Vishal Baheti, Learned Counsel appearing on behalf of the applicants by placing reliance on the judgment in the case of Hamid Khan Ansari v. Lilabai 2004 (3) M.P.H.T. 58 : 2004 (II) MPWN 137, contends that if application under Order 21 Rule 97 of the Code resisting execution is found wholly frivolous and vexatious no adjudication or recording of evidence is necessary. Further by placing reliance on the judgment of this Court in the case of Shobha Mishra and Anr. v. Vinod Kumar and Ors. 2010 (I) MPWN 19 , it is said that if a person not in possession cannot maintain the application under Order 21 Rules 97 to 99 of the Code. Further by placing reliance on another judgment of this Court in the case of Sanjiv Paliwal v. Smt. Sumitra and Ors. 2009 (I) MPWN 79 , it is contended that the objector to a decree should be in possession of his independent right, in absence thereof elaborate enquiry is not required. Lastly placing reliance on the judgment of the Apex Court in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust and Anr. AIR 1998 SC 1754 , it is contended that until and unless it is decided that the resister or obstructer is a person bound by the decree and he refuses to vacate the property, the detailed enquiry is not necessary. 7. Per contra, Shri Umesh Gajankush, Learned Counsel appearing on behalf of the non-applicant No. 1 contends that the application even by a stranger can be maintained in view of judgment of the Apex Court in the case of Shreenath and Anr. v. Rajesh and Ors. (1998) 4 SCC 543 . 7. Per contra, Shri Umesh Gajankush, Learned Counsel appearing on behalf of the non-applicant No. 1 contends that the application even by a stranger can be maintained in view of judgment of the Apex Court in the case of Shreenath and Anr. v. Rajesh and Ors. (1998) 4 SCC 543 . It is also contended that as per the judgment of the Apex Court in the case of Silverline Forum Pvt. Ltd. (supra), the application under Order 21 Rule 97 of the Code can be maintained by any person if he is having some interest de hors the judgment-debtor and can resist the execution of the decree even not in possession. It is contended by Shri Gajankush that looking to the interim order passed in Writ Petition No. 3431/2010, it apparent that entry and exit to the public road adjacent to Plot No. 118-A and Plot No. 53 Annex Janki Nagar, Indore has been restrained. Looking to the boundaries of Plot No. 119-A to which the decree is granted by the Trial Court and under execution the said boundaries relate to the adjacent area. In such circumstances the Trial Court has rightly rejected the application under Order 7 Rule 11 of the Code filed by the applicants. It is also contended by Shri Gajankush that application under Order 7 Rule 11 of the Code cannot be maintained in the execution proceedings as it relates to clauses as specified under Order 7 Rule 11 for rejection of the plaint only. In view of the foregoing prayer is made to dismiss the revision and to upheld the order passed by the Trial Court. 8. After having heard Learned Counsel appearing on behalf of the parties first of all the issue with respect to maintainability of the application under Order 7 Rule 11 of the Code in a proceeding under Order 21 Rule 97 of the Code is required to be dealt with. 8. After having heard Learned Counsel appearing on behalf of the parties first of all the issue with respect to maintainability of the application under Order 7 Rule 11 of the Code in a proceeding under Order 21 Rule 97 of the Code is required to be dealt with. In this regard, provision or Order 7 Rule 11 of the Code is reproduced as under: Rejection of plaint.- The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the Plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the Plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the Plaintiff fails to comply with the provisions of Rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the Plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the Plaintiff. Bare reading of the aforesaid it is apparent that under scheme of Code of Civil Procedure, Order 7 deals with the plaint and Rule 11 regarding rejection of a plaint while Order 21 deals with execution of decrees and orders. As per Rule 11 the plaint filed by the Plaintiff can be rejected if it does not disclose a cause of action or undervalue or proper stamps of Court-fees has not been affixed or the suit appears from the statement to be barred by law or filed in duplicate or Plaintiff fails to comply the provisions of Rule 9. As per Rule 11 the plaint filed by the Plaintiff can be rejected if it does not disclose a cause of action or undervalue or proper stamps of Court-fees has not been affixed or the suit appears from the statement to be barred by law or filed in duplicate or Plaintiff fails to comply the provisions of Rule 9. Rule 97 of Order 21 of the Code deals with resistance or obstruction to the holder of a decree by any person by moving an application showing the ground of resistance or obstruction. The application so filed shall not be a plaint, though it may be decided likely to be a suit for the purpose of adjudication and to pass an order as required under Rule 98 or under Rule 100 of the Code. Thus, as per the Scheme of the Code of Civil Procedure, the rejection of the plaint filed by the Plaintiff might be for aforementioned reasons, but after decreeing the suit and at the time of execution if an application under Order 21 Rule 97 has been filed it may not be a plaint and the provisions as enumerated under Rule 11 shall not be attracted. As disputed by Counsel for the applicants that application has not been filed either under Rule 11(a), (b) or (c). In fact, it is under Clause (d) if suit appears from the statement in the plaint to be barred by any law. Looking to the objections as mentioned in the application under Order 7 Rule 11 of the Code filed by the applicants it is apparent that how application is barred under the law has also not been explained. Therefore, also it cannot be maintained. 9. The argument further advanced by Shri Baheti in reference to Rule 103 of Order 21 of the Code to maintain the application of Order 7 Rule 11 cannot be accepted for the simple reason that the said rule deals with the effect of the order passed on an application under Order 21 Rule 97 of the Code. Rule 103 of Order 21 of the Code does not contemplate for maintaining the plaint. It merely contends consequences after adjudication of such application as per Rules 98 and 100 of Order 21 of the Code. Rule 103 of Order 21 of the Code does not contemplate for maintaining the plaint. It merely contends consequences after adjudication of such application as per Rules 98 and 100 of Order 21 of the Code. Thus, the argument as advanced by the Counsel for the applicants in support of maintaining the application under Order 7 Rule 11 of the Code in a proceeding pending on filing an application under Order 21 Rule 97 is hereby repelled. In such circumstances, in the opinion of this Court, application under Order 7 Rule 11 filed by the applicants is not maintainable in the said proceedings. 10. So far as the finding as recorded by the Trial Court for adjudication of the application under Order 21 Rule 97 of the Code is concerned, it is to be observed here that as per reply filed by the State Government it is apparent that they were not duly represented before the Trial Court in the said suit. The land of Plot No. 119-A is a thoroughfare for use of the inhabitants of Janki Nagar. The non-applicant No. 1 has also stated the same thing. As per interim order passed by this Court in Writ Petition No. 3431/2010, it is apparent that State Government and Municipal Corporation, Indore were directed to not to close exist and entry to the public road which is situated in between Plot No. 53-A Annex and Plot. No. 118-A of Janki Nagar. Looking to the boundaries of the plot, i.e., the suit property of area 55 x 40 sq. ft. it is apparent that eastern side it is A.B. Road, in western side Janki Nagar Main Road, in northern side it is Plot No. 53-A Annex Janki Nagar and in southern side it is Plot No. 118-A which is renumbered as Plot No. 119. However, it cannot be ignored that Plot No. 119-A for which decree is granted by the Trial Court may be adjacent to Plot No. 119. However, non-applicant No. 1 who is resident of Janki Nagar has submitted objection in execution of decree against the applicants which prima facie cannot be said to be irrelevant or frivolous and complete enquiry to that effect is needed. However, non-applicant No. 1 who is resident of Janki Nagar has submitted objection in execution of decree against the applicants which prima facie cannot be said to be irrelevant or frivolous and complete enquiry to that effect is needed. Simultaneously, in view of the law laid down in the two aforesaid judgments of the apex Court, I am of considered opinion, that application filed by the non-applicant No. 1 can be maintained by him and it is required to be decided after an enquiry. The Trial Court has not committed any error while rejecting the objection and to direct that the application under Order 21 Rule 97 of the Code filed by the non-applicant No. 1 may be decided after enquiry. 11. The judgment in the case of Hamid Khan Ansari (supra), as relied upon by Mr. Baheti is of no help to the applicants because in the said case it was found that application under Rule 97 of Order 21 resisting execution is found wholly frivolous and vexatious while in the present case in view of the foregoing discussion it is apparent that the application is not frivolous and in fact it needs an enquiry. The judgment further relied upon in the case of Sanjiv Paliwal (supra), is of no help to the applicants in view of the finding as recorded by the Apex Court in the case of Silverline Forum Pvt. Ltd. (supra), whereby any person may maintain the application having interest de hors the judgment-debtor and resist execution even not having possession. In the present case the non-applicant No. 1 has stated that Plot No. 119-A is a public road and he is having right to use it as a way. The judgment further relied in the case of Shobha Mishra and Anr. (supra), relates to controversy of landlord and tenant relationship wherein objection was filed. In the said context this Court has held that elaborate enquiry was not necessary while the facts of the present case are entirely different. So far as reliance on the case of Silverline Forum Pvt. Ltd. (supra), is concerned, in the facts of the present case, observations as made in Paras 12 and 13 are irrelevant and on the contrary, in the opinion of this Court, the said case helps to non-applicant No. 1. 12. So far as reliance on the case of Silverline Forum Pvt. Ltd. (supra), is concerned, in the facts of the present case, observations as made in Paras 12 and 13 are irrelevant and on the contrary, in the opinion of this Court, the said case helps to non-applicant No. 1. 12. In view of the foregoing discussion, the order passed by the Trial Court is hereby upheld and revision filed by the applicants is found to be devoid of any merit, hence it is dismissed. No costs.