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2012 DIGILAW 463 (MP)

Nagar Palik Nigam, Gwalior v. Bhagwan Das Gupta

2012-04-30

BRIJ KISHORE DUBE, S.K.GANGELE

body2012
ORDER Gangele, J. -- 1. The respondent filed a suit for declaration and permanent injunction. He pleaded that he is owner of a farm house registered in the Municipal Corporation as 48/993/1 situate at Hem Singh ki Parade, Jambur Khana, Lashkar, Gwalior. Land of the house is a joint family property. Plaintiff-respondent’s elder brother Naresh Kumar purchased the aforesaid land and the farm house constructed over it from Mahadev Narayan Rao vide registered sale-deed dated 30.7.1959. Since, then they had been residing in the house. The Tahsildar, Gwalior vide order dated 10.6.1967 declared that Naresh Kumar was the Bhumiswami of the land. On 29.8.1992, the Commissioner, Municipal Corporation, Gwalior issued a show cause notice to the plaintiff in regard to removal of construction. The plaintiff-respondent submitted a reply on 10.9.1992 and pleaded that he had not made any encroachment neither he had made new construction; however, the officers of Municipal Corporation had been continued to threaten him to remove the construction. On the basis of the aforesaid pleadings, the plaintiff sought a decree of declaration and permanent injunction. 2. The Municipal Corporation in its written statement denied the fact that the plaintiff was the owner of the land. The present petitioner-defendant Municipal Corporation specifically pleaded that the suit land is of the ownership of Municipal Corporation, Gwalior because in the Khasra entry of Samwat 2040 it was recorded as Nazul land. In the earlier suit proceedings, Municipal Corporation was not a party, hence, the judgments passed by the Court below were not binding. It is further pleaded that the sale-deed executed in favour of the elder brother of plaintiff was null and void because the seller had no right of ownership. It is further pleaded that before the Tahsildar, Municipal Corporation was not a party.The Municipal Corporation issued notice on 29.8.1992 under sections 293, 294 and 302 of the Municipal Corporation Act for removal of construction because the construction was made without approval from the Municipal Corporation. It is further pleaded that before the Tahsildar, Municipal Corporation was not a party.The Municipal Corporation issued notice on 29.8.1992 under sections 293, 294 and 302 of the Municipal Corporation Act for removal of construction because the construction was made without approval from the Municipal Corporation. Trial Court framed following issues for decision of the suit: ^^1- D;k oknh oknxzLr Hkou ¼QkeZ gkÅl½ ij ,dek= Lokeh dh gSfl;r ls vkf/kiR;dkjh gS \ 2- D;k oknh mDr oknxzLr Hkou QkeZ gkÅl ds 40 o 50 o”kZ iqjkuk gksus ls mldh ejEer djkrk jgk gS ,oa mDr Hkou ds dksbZ ifjorZu ugha fd;k x;k gS \ 3- D;k oknh dks izfroknh )kjk uxj rFkk xzke fuos’k vf/kfu;e] 1972 rFkk e-iz- Hkwfe fodkl fu;e] 1984 ds izko/kku ds vraxZr lwpuki= nsus vFkok Hkou dks rksM+us dk dksbZ vf/kdkj ugha gS \ 4- D;k oknh izfroknh dks oknxzLr Hkou dk okf”kZd laifRr dj vnk jgk gS \ ;fn gk¡ rks izHkko \ 5- D;k oknh dks izfroknh ds fo:) dksbZ okn dkj.k mRiUu ugha gqvk gS \ 6- D;k izfroknh dks oknh )kjk dksbZ lwpuki= ugha Hkstk x;k gS \ 7- D;k oknh )kjk okn dk ewY;kadu de fd;k tkdj i;kZIr U;k; ‘kqYd vnk ugha dh xbZ gS \ 8- lgk;rk ,oa O;; \** 3. After appreciating the evidence, the trial Court held that the plaintiff-respondent is in possession of the house No.48/993/1 situate at Hem Singh ki Parade, Jambur Khana, Lashkar, Gwalior and a permanent injunction was issued against the Corporation to the effect that the Municipal Corporation shall not interfere in the ownership and possession of the plaintiff. Against the aforesaid judgment and decree, the Corporation preferred an appeal before this Court which was registered as First Appeal No.60/2000. The Corporation specifically pleaded in the appeal that the Corporation is the owner of the suit property and house was constructed illegally. Against the aforesaid judgment and decree, the Corporation preferred an appeal before this Court which was registered as First Appeal No.60/2000. The Corporation specifically pleaded in the appeal that the Corporation is the owner of the suit property and house was constructed illegally. The Corporation raised the following grounds in the appeal : ^^1- ;g fd] v/khuLFk U;k;ky;] fu.kZ; feF;k ,oa rF;ksa ds foijhr gksus ls fujLr gksus ;ksX; gS A 2- ;g fd] oknxzLr laifRr fjLiksaMsaV Hkxokunkl )kjk dz; ugha dh xbZ Fkh fQj Hkh caVokjs ds izdj.k ds vk/kkj ij fjLiksaMsaV dks Lokeh ekudj v/khuLFk U;k;ky; us Hkwy dh gS A 3- ;g fd] ‘kkldh; Hkwfe dks fjLiksaMsaV@oknh dh laifRr ekudj Hkh v/khuLFk U;k;ky; us Hkwy dh gS A 4- ;g fd] fjLiksaMsaV Hkxokunkl us oknxzLr laifRr cM+s HkkbZ ujs’k dqekj )kjk 30-7-1959 dks dz; djuk crk;k ijarq mDr o;ukes esa oknxzLr Hkou dk dksbZ fooj.k u gksrs gq, Hkh edku 40&50 o”kZ iqjkuk ekuus esa Hkwy dh gS A 5- ;g fd] fjLiksaMsaV )kjk cxSj btktr fuekZ.k fd, x, Hkou dks rksM+us dk vf/kdkj vihykaV izfroknh dks ugha gS] ;g fu.kZ; nsdj Hkwy dh gS A 6- ;g fd] fjLiksaMsaV )kjk vihykaV izfroknh dks lwpuki= fn;k tkuk izekf.kr u gksrs gq, Hkh vihykaV ds lk{kh ds dFku ds vk/kkj ij lwpuki= fn;k x;k ekudj Hkwy dh gS A 7- ;g fd] /kkjk 401 uxjikfyd fuxe vf/kfu;e dk lwpuki= fn, cxSj okn iks”k.kh; u gksrs gq, Hkh nkok fujLr u djus esa v/khuLFk U;k;ky; us Hkwy dh gS A 8- ;g fd] v/khuLFk U;k;ky; us lkf{k;ksa dk dFku u dj fu.kZ; ikfjr djus esa Hkwy dh gS A 9- ;g fd] v/khuLFk U;k;ky; us izLrqr nLrkosth lk{; dk lgh ewY;kadu u dj fu.kZ; nsus esa Hkwy dh gS A 10- ;g fd] v/khuLFk U;k;ky; ds fof/k ,oa fo/kku ds izko/kku dks ns[ks cxSj fu.kZ; djus nsus esa Hkwy dh gS A** 4. The appeal was listed for hearing on 7.7.2011. On the aforesaid date, Advocate Mr. Deepak Khot appeared on behalf of the appellant Municipal Corporation and Senior Advocate V.K. Bharadwaj with Shri A.B. Bharadwaj, Advocate appeared on behalf of respondent. Learned Single Judge of this Court passed the following order on the aforesaid date : “Heard finally with the consent of learned counsel for the parties. Appeal is being disposed of in the following manner with a joint consensus. 1. Learned Single Judge of this Court passed the following order on the aforesaid date : “Heard finally with the consent of learned counsel for the parties. Appeal is being disposed of in the following manner with a joint consensus. 1. Court of VIII Additional District Judge, Gwalior, has granted a decree in favour of plaintiff-respondent on 14.7.1999 in Civil Suit No.14-A/1992 in respect of declaration of title and perpetual injunction against Municipal Corporation, Gwalior. The judgment and decree have been impugned in the present appeal as unsustainable in law. 2. This appeal is disposed of with a direction that the plaintiff-respondent shall extend full cooperation in the inspection of the entire suit property. The appellant-Corporation may cause inspection of the suit property and shall have a right to issue notice, if any violation of the provisions of Municipal Corporation Act or relevant Rules/by-laws is found. Reply would be invited within a further period of one month. Thereafter, in case, if any violation is found, the Municipal Corporation, Gwalior, shall have a right to issue notice in respect of same. Plaintiff-respondent shall be granted an opportunity to make compounding, in accordance with law and in case of failure in the matter of compounding only, further action may be taken by the Municipal Corporation, Gwalior. It is made clear that the present judgment and decree will not come in way of Municipal Corporation, Gwalior, in taking appropriate steps, in accordance with law, in the aforesaid manner. Appeal stands disposed of in the aforesaid manner. No order as to costs. C.c. as per rules.” 5. From the order passed by learned Single Judge, it is clear that the appeal was disposed of on the basis of consensus between the parties. 6. Learned counsel appearing on behalf of review petitioner has contended that the appeal was heard on merits and no consent had been tendered by the counsel for the Corporation before the Court for disposal of the appeal on certain terms and conditions. Hence, the order passed by the learned Single Judge is contrary to law and review petition ought to be allowed. In support of his contentions, he has relied on the following judgments : 1. Ramasrey v. Deputy Director, Consolidation, District Faizabad [ AIR 1999 SC 1474 ]; 2. Daman Singh etc., v. State of Punjab, etc. [ AIR 1985 SC 973 ]; 3. In support of his contentions, he has relied on the following judgments : 1. Ramasrey v. Deputy Director, Consolidation, District Faizabad [ AIR 1999 SC 1474 ]; 2. Daman Singh etc., v. State of Punjab, etc. [ AIR 1985 SC 973 ]; 3. Rekha Mukherjee v. Ashish Kumar Das [ (2004)1 SCC 483 ; and 4. Bakshi Dev Raj v. Sudheer Kumar [(2011)8 SCC 679]. 7. Learned counsel for the respondent-plaintiff has contended that the appeal was disposed of after hearing the parties on merits. Hence, this review petition is not maintainable and the petitioner can file special leave petition. In support of his contentions, he has relied on the following judgments : 1. Commissioner of Sales Tax v. Hukumchand Mills [ 2004(2) MPLJ 492 ]; 2. Haridas Das v. Usha Rani Banik (Smt.) [ (2006)4 SCC 78 ]; 3. Smt. Meera Bhanja v. Smt. Nirmala Kumar Choudhury [ AIR 1995 SC 455 ]; and 4. State of West Bengal v. Kamal Sengupta (2008)8 SCC 612 ]. 8. In the order passed by learned Single Judge in the appeal, it is clearly mentioned that the appeal is being disposed of in the following manner with a joint consensus. Learned counsel Mr. Deepak Khot who appeared before the Court on the date when the appeal was heard has categorically stated that the appeal was heard on merits and he had not submitted his consent for disposal of the appeal; however, from the perusal of the order it is clear that the appeal has been disposed of on the basis of consensus. Hence, the review is maintainable and order is liable to be recalled. It is also to be seen that no judgment has been passed in the appeal. Another mode of disposal of appeal is disposal on the basis of compromise. There was no application for compromise. The appeal has also not been dismissed in limine. The appeal was admitted for hearing vide order dated 19.4.2000 passed by a Division Bench of this Court. Hence, it was obligatory on the part of learned Single Judge to decide the appeal on merits. Hon’ble apex Court in the matter of Uttar Pradesh Avas Evam Vikas Parishad v. Sheo Narain Kushwaha [ (2011)6 SCC 456 has held as under : “4. Hence, it was obligatory on the part of learned Single Judge to decide the appeal on merits. Hon’ble apex Court in the matter of Uttar Pradesh Avas Evam Vikas Parishad v. Sheo Narain Kushwaha [ (2011)6 SCC 456 has held as under : “4. An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on questions of fact and/or questions of law, with power to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision. In Hari Shanker v. Rao Girdhari Lal Chowdhury, this Court held (SCC pp.700-01, para7): “7. ... A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done is second appeals arising under the Code of Civil Procedure.” 5. Section 96 of the Code provides that save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. 6. Order 41 of the Code regulates appeals from original decrees. Rule 11 of Order 41 relates to power to dismiss appeals without sending notice to lower Court and sub-rules (1) and (4) thereof, relevant for our purpose, are extracted below : “11. Power to dismiss appeal without sending notice to lower Court. -- (1) The appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal. *** *** *** (4) Where an appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.” 7. It is evident from sub-rule (1) that an appellate Court can dismiss an appeal after a preliminary hearing without calling for the records of the trial Court and without issuing notice to the respondent, if it is satisfied that the appeal has no merit. Sub-rule (1) does not however state that such dismissal can be without assigning any reasons. 8. It is evident from sub-rule (1) that an appellate Court can dismiss an appeal after a preliminary hearing without calling for the records of the trial Court and without issuing notice to the respondent, if it is satisfied that the appeal has no merit. Sub-rule (1) does not however state that such dismissal can be without assigning any reasons. 8. Sub-rule (4) provides that where the appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment recording in brief, its grounds for doing so. Sub-rule (4) by implication therefore provides that if the appellate Court is the High Court, and it chooses to dismiss a first appeal at the stage of preliminary hearing, without issuing notice to the respondent and without calling for records, it need not deliver a formal brief judgment as is required by other appellate fora. A “judgment”, even a brief one, which is required to be rendered by appellate Courts other than High Courts, should necessarily refer to the pleadings, nature of relief, the points for consideration and the decision thereon. But sub-rule (4) does not say that if the appellate Court which dismisses the appeal is the HighCourt, no reasons be assigned for dismissing the appeal. 9. Sub-rule (4) of rule 11 does not enable the High Court to dismiss first appeals by one-line orders to the effect that “appeal is dismissed” or by non-speaking orders. The order of the High Court dismissing the first appeal should be sufficiently reasoned to disclose the application of mind to the grounds of appeal and make out that the High Court was resorting to dismissal in limine as if found the appeal either to be vexatious of wholly without merit. Order 41 rule 11 of the Code, while relieving the High Court from the obligation to write a “judgment”, does not dispense with the obligation to assign reasons in brief, when summarily dismissing the appeal. 10. Unless the order is reasoned, there will be no way of knowing whether the appellate Court has examined the appeal before deciding that it did not deserve admission. 10. Unless the order is reasoned, there will be no way of knowing whether the appellate Court has examined the appeal before deciding that it did not deserve admission. As a limited right to appeal to the Supreme Court is available against the appellate judgments of the High Court, unless there are reasons in the order of dismissal, it will not be possible for the Supreme Court to examine whether the High Court has rightly rejected the appeal. The appellant who has filed the first appeal in pursuance of a statutory right to file such appeal, paying necessary Court fee, can legitimately expect reappreciation of the evidence and redetermination of the questions raised, unless the statute providing for the appeal provides otherwise. 11. This Court has repeatedly pointed out that any dismissal of a first appeal even at the preliminary hearing stage, should be supported by brief reasons. In Kiranmal Zumerlal Borana Marwadi v. Dnyanoba Bajirao Khot, this Court observed (SCC p.224, para 2) : “2. ... As numerous points both of law and facts appear to have been raised in the appeal, which again were sought to be canvassed before us in fairness to the parties and to us some reasons ought to have appeared in the judgment indicating what appealed to the High Court to be in entire agreement with the learned trial Judge. Let it be remembered that it was the first appeal against the decision of the trial Court and therein the appellant can and has raised serious questions of law and disputed decision on facts. We, therefore, think that this is pre-eminently a fit case which ought to have been admitted and disposed of on merits.” 12. In Jayanmti De v. Abani Kanta Barat, this Court observed thus (SCC p.456, paras 2-3) : “2. We are not satisfied that the High Court has considered the appeal on merits. Even if the dismissal is under Order 41 rule 11 and the High Court is not required under sub-rule (4) to record in brief its grounds for doing so, it is not a carte blanche to enable the appellate Court to avoid recording any reason whatsoever. We think that the appeal required consideration on merits. 3. Even if the dismissal is under Order 41 rule 11 and the High Court is not required under sub-rule (4) to record in brief its grounds for doing so, it is not a carte blanche to enable the appellate Court to avoid recording any reason whatsoever. We think that the appeal required consideration on merits. 3. We, therefore, set aside the impugned order and remit the appeal to the High Court for disposal of the same on merits and in accordance with law by stating the reasons.” 9. From the aforesaid judgment, it is clear that the appeal is a proceedings where a higher forum reconsiders the decision of a lower forum, on questions of fact and/or questions of law and Order 41 of the Code of Civil Procedure regulates appeals from original decrees. 10. Hon’ble apex Court in the matter of Rajendra Kumar v. Rambhai [ AIR 2003 SC 2095 ], has held as under in regard to exercise of power of review : “5. On perusal of the order under challenge it is clear that the High Court without considering the question whether the judgment/order sought to be reviewed suffered from any error, entered upon the exercise of reappreciating the evidence and on such reappreciation of evidence redetermined the compensation by reducing the amount to the extent noted earlier.The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. 11. Hon’ble apex Court in the matter of Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [ AIR 1954 SC 526 ], has held as under : “The proper procedure is to move the Court in whose judgment the error is alleged to have crept in. The application by way of review is to be made to the Court whose judgment is said to be founded on a misconception as to the concession made by the Advocate spearing before it. The application by way of review is to be made to the Court whose judgment is said to be founded on a misconception as to the concession made by the Advocate spearing before it. A misconception by the Court of a concession made by the Advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. There is no reason to construe the word “record” in a very restricted sense and include within that term only the document which initiate the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. Further, when the error complained of is that the Court assumed that a concession had been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the Court by way of an affidavit and this can only be done by way of review. The misconception of the Court must be regarded as sufficient reason analogous to an error on the face of the record. It is permissible to relyon the affidavit as an additional ground for review of the judgment.” 12. In our opinion, the disposal of appeal by learned Single Judge vide order dated 7.7.2011 in First Appeal No.60/2000 is contrary to the provisions of Civil Procedure Code. Hence, there is apparent error on the face of record and substantive injustice has been caused to the review petitioner. We may also observe one aspect of the matter that the controversy involved in the appeal is about the property which belongs to the uncle of Mayor of Municipal Corporation. In such factual aspect of the matter, it is necessary to decide the appeal on merits. Hence, the review petition is allowed. The impugned order dated 7.7.2011 passed in First Appeal No.60/2000 is hereby set aside and recalled and the First Appeal No.60/2000 is restored to file. It be listed for hearing in accordance with law before the appropriate Bench. Looking to the facts of the case, no order as to costs. .............