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2014 DIGILAW 733 (GAU)

Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das

2014-07-23

NISHITENDU CHAUDHURY

body2014
1. Petitioner, as plaintiff, instituted Title Suit No. 12/2012 in the court of learned Munsiff Court No. 1, North Lakhimpur against the present opposite party as sole defendant for his eviction from the suit premises on the ground of bona fide requirement. In the said plaint, the petitioner stated that suit house is required for use by one of her daughters. At this stage, the defendant filed an application for impleadment of daughter of the plaintiff, namely, Musstt. Sabina Yasmin as party in the suit. The application was rejected by the learned trial court by order dated 3.8.2012 which was brought under challenge before this court by the tenant in CRP No. 478/2012. This court after hearing the parties affirmed the order passed by the learned trail court and thus the daughter of the plaintiff could not be made a party in the suit. Thereafter, plaintiff led evidence in support of the plaint and the evidence of the plaintiff having been closed, defendant was asked to produce his witnesses. The defendant submitted a list of witness containing 5 witnesses out of which 3 were examined as DW1, DW 2 and DW 3. Thereafter, defendant filed an application on 6.4.2013 before the learned trial court making prayer for examining Musstt. Sabina Yasmin, the elder married daughter of the plaintiff as witness in this case on his behalf. In the application it is merely stated that examination of Musstt. Sabina Yasmin is necessary to establish his case. However, the application did not disclose as to why name of Sabina Yasmin was not mentioned in the list of witness submitted. 2. The opposite party, as plaintiff, instituted Title Suit No. 334/2011 in the Court of learned Munsiff No. 2, Kamrup at Guwahati praying for declaration that western boundary of land described in Schedule A, B and C to the plaint contained only a Public drain to be used by the plaintiff and others for ever, that Schedule C land belonging to the defendant but connected to the land of the plaintiff cannot be obstructed by the defendant, that permanent injunction be decreed against the defendant restraining him from disturbing peaceful enjoyment of drain facility in the Schedule C property owned by the defendant' and for costs, etc. In the suit the plaintiff also filed an application for temporary injunction for removal of the obstruction of the Schedule C drain and learned trial court after hearing the parties allowed prayer for ad interim mandatory injunction by order dated 30.9.2011 directing removal of blockade of the drain within 10 days. The defendant challenged the order by preferring Misc. Appeal No. 33/2011 in the Court of learned Civil Judge No. 3, Kamrup at Guwahati, inter alia, on the ground that the suit itself being not maintainable the injunction order was liable to be set aside. It is stated at the Bar that the Schedule C drain was eventually cleared by removal of obstruction. However, the learned appellate court finally allowed the appeal, set aside the impugned injunction order on 21.9.2012 and remanded the matter to the learned trial court with direction to decide objection as to jurisdiction of civil court and also to consider the application stated to have been pending for commission under order XVIII, rule 18 of the Code of Civil procedure ('the CPC'). Thereafter the learned trial court heard the parties on the question of maintainability of the suit and jurisdiction of civil court and consequently passed order on 16.11.2013 holding that civil court has jurisdiction to entertain the suit and that suit was maintainable. This order is under challenge in the present revision petition. 3. It is pleaded in the case of the plaintiff that he along with one Dhan Chandra Mahanta purchased Schedule A land measuring 15 lessas on 8.12.1997 from 3 persons, namely, Sailendra Medhi, Narendra Nath Medhi and Dhircn Medhi. Dhan Chnadra Mahanta, having relinquished his title in his favour, plaintiff became absolute owner in possession of the entire 15 lessas of land. To the Western boundary of this land, there is an exhaust drain which opens into municipal drain after traversing through the land of Suwola Devi and plaintiff. On the same date, i.e., on 8.12.1997, the plaintiff purchased another plot of land at the Northern side of Schedule A land. This Northern plot is described at Schedule B to the plaint. At the Western boundary of Schedule B land is a drain which is connected to the drain of the plaintiff and water of both these drains open up into the municipal drain. This Northern plot is described at Schedule B to the plaint. At the Western boundary of Schedule B land is a drain which is connected to the drain of the plaintiff and water of both these drains open up into the municipal drain. The southern plot described in Schedule C to the plaint is owned and possessed by the defendant who had purchased it on 24.4.1984 and in his sale deed also existence of public drain at the Western boundary is mentioned. With these background facts, plaintiff asserted that there is a permanent drain connecting lands of the plaintiff, Suwola Devi and defendant with municipal drain to the Western side. According to the plaintiff, the defendant created a permanent obstruction to this drain by putting RCC materials and consequently land of plaintiff and his other neighbour got inundated by overflow of waste water due to which they contacted the defendant, however, to no avail as the latter not only refused to remove the obstruction but also misbehaved. Under such circumstances, plaintiff became compelled to file the suit with injunction prayer. 4. The suit was registered as Title Suit No. 334/2011 and the accompanying injunction application was registered as Misc.(J) Case No. 821/2011. The defendant filed written statement contradicting the pleadings of the plaintiff and also filed objection contesting the injunction prayer made in the miscellaneous case. In paragraph 3A of the written statement, defendant pleaded that civil court has no jurisdiction to entertain the suit. In paragraph 10 thereof further objection was raised pleading that Guwahati Municipality is the competent authority to control and adjudicate upon any matter as to such dispute of property. The learned trial court pursuant to order of the appellate court in the interlocutory injunction matter took up the objection as to maintainability as preliminary issue, heard both sides on this point and thereafter passed the impugned order rejecting the objection. In so doing the learned court noted section 341 of the Gauhati Municipal Corporation Act, 1971 ('the GMC Act') and held that this bar is applicable only in matters relating to Fart VI of Chapter XXVI of the said Act. According to the learned court, the suit in question being a declaratory suit, is civil in nature. In so doing the learned court noted section 341 of the Gauhati Municipal Corporation Act, 1971 ('the GMC Act') and held that this bar is applicable only in matters relating to Fart VI of Chapter XXVI of the said Act. According to the learned court, the suit in question being a declaratory suit, is civil in nature. Although there is power of Commissioner to authorize person to declare anybody as joint user of drain, yet this does not mean that powers of civil court to adjudicate dispute between two private persons is ousted. The learned court held that GMC Act does not create any bar in entertaining a suit of the present nature. According to the learned court there is no effective remedy for such type of disputes and so, civil court has jurisdiction to try the suit. 5. I have heard Mr. A.B. Choudhury learned senior advocate assisted by Mr. M.A Choudhury, advocate for the petitioner and Mr. Chamaria, learned advocate for the opposite party. I have perused the plaint, the written statement;, the order passed in Misc. Appeal No. 33/2011 and the impugned order. I have also gone through the relevant provisions of law and the judicial precedents as relied on by the learned counsel for the parties. 6. To decide legality or otherwise of the impugned order, it is necessary to understand the nature of the order passed by the learned trial court. Was it an order under order XIV, rule 2(2) of the Code of Civil Procedure (the Code') deciding a preliminary issue or the exercise was made under order VII, rule 11 of the Code exploring scope of rejection of the plaint owing to bar under any law? It is to be noted that question as to maintainability of the suit arose while deciding appeal in injunction prayer. It is the appellate court which desired the trial court to decide the question on maintainability first. True, consideration of maintainability aspect of the suit in interlocutory matter is from the standpoint of deciding prima facie case for getting injunction or so but once a court proceeds to consider this aspect of the matter in the suit at the same, it assumes the character of consideration under order VII, rule 11. True, consideration of maintainability aspect of the suit in interlocutory matter is from the standpoint of deciding prima facie case for getting injunction or so but once a court proceeds to consider this aspect of the matter in the suit at the same, it assumes the character of consideration under order VII, rule 11. Clause ll(d) of order VII of the Code has vested power with court to reject a plaint where the suit appears from statement in the plaint to be barred by any law. By the impugned order, the learned trial court in the present case has dealt with such objection of the defendant and, thus, whatever be the stage of the proceeding or occasion to decide, the order was a one in the nature of rejection of plaint and so it would be necessary to examine as to whether the learned trial court committed error in exercise of such jurisdiction. 7. The objection raised by the defendant in this regard was that the prayer of the plaintiff for clearance of drain hinges on the question as to whether the alleged public drain is liable to be opened and this job of opening and maintaining being a responsibility of the Guwahati Municipality and more over there being prescribed procedure, power and authority by the CMC Act, whether jurisdiction of civil court the impliedly excluded. In course of hearing the learned counsel for the petitioner/defendant referred to various sections of 'the GMC Act'. These sections show that the GMC Act has conferred power on the Guwahati Municipal Corporation ('the GMC') to declare a person to be joint user of a drain and can even open a drain for one person over land of other person if such exigency arises. Such right of drainage is undoubtedly a creation of the GMC Act and procedure for enforcement thereof is also suggested/prescribed under same special statute. The line of argument of the learned counsel for the petitioner/defendant is that once a right is created by a special statute and there is prescribed procedure in the same statute for enforcement, jurisdiction of the civil court stands impliedly excluded. The line of argument of the learned counsel for the petitioner/defendant is that once a right is created by a special statute and there is prescribed procedure in the same statute for enforcement, jurisdiction of the civil court stands impliedly excluded. Per contra, the learned counsel for the respondent/plaintiff submits that it is after all a suit for declaration and injunction and the dispute being civil in nature civil court's jurisdiction under section 9 of the Code cannot be excluded more so when there is no express ouster of jurisdiction of the civil court. 8. The relevant provisions of the GMC Act creating the right of drainage and procedure for enforcement of that right are quoted below : "231. Cancellation, revocation, etc., of licences. - (1) Subject to the provisions of sections 233 any licence granted under 230 by the Board at a meeting, or the Board, as the case maybe, may at any time, be suspended or revoked by the authority granting the licence, if any of the restrictions, limitations, or conditions attached to the licence be evaded infringed be the grantee, or if the grantee be convicted of a breach of any of the provisions of the Act or of any rule or bye-law made there-under in any matter to which such licence relates, or if the grantee has obtained the same by misrepresentation or fraud. (2) When any such licence is suspended or revoked until such order of suspension or revocation is cancelled, or when the period for which it was granted, or the period within which application for renewal should be made has expired, which ever expires later the grantee shall for all purposes of this Act, or any rule or bye-law made under the Act, be deemed to be without licence. 239. Removal to hospital of patients suffering from infectious diseases. 239. Removal to hospital of patients suffering from infectious diseases. In any municipality when any person suffering from any infectious or contagious disease is found to be, - (a) without proper lodging or accommodation, or (b) living in a serai or other public hostel, or (c) living in a room or house which neither he nor any one, of whom he is a dependant, either owners or pays rent for, the Board, by any person authorised by it in this behalf, on the advice of an Assistant Surgeon I, remove the patient to any hospital or place at which persons suffering from such disease are received for medical treatment, and may do anything necessary for such removal. 243. Acts done by person suffering from certain diseases. - Whoever, while suffering from an infectious, contagious or loathsome disease, - (a) makes or offer for sale article or food or drink for human consumption or any medicine, drug or clothing, or (b) wilfully touches any such articles, medicine, drug, or clothing, when exposed for sale by others, or (c) takes any part in the business of washing or carrying soled clothes, Shall be punishable with fine which may extend to twenty rupees. 246. Maintenance of Conveyances by Board for certain purposes. - The Board may provide and maintain suitable conveyance for the free carriage of person suffering from any infectious or contagious disease or of dead bodies of persons who have died from any such disease. 248. Power to close school. - (1) The Board may, by notice, require the managing authority of any school situated within the municipality for a specified time with a view to preventing the spread of disease or any danger to health likely to arise from the condition of the school, either to close the school or to exclude any scholars from attendance; and the managing authority shall comply with the notice. (2) After complying with the notice, managing authority may appeal to the Deputy Commissioner or, where the Deputy Commissioner is the Chairman of the Municipality to the Commissioner of the Deputy if it considers the notice to be unreasonable, and the order of the Deputy Commissioner or of the Commissioner of Division, as the case may be, shall be final. (2) After complying with the notice, managing authority may appeal to the Deputy Commissioner or, where the Deputy Commissioner is the Chairman of the Municipality to the Commissioner of the Deputy if it considers the notice to be unreasonable, and the order of the Deputy Commissioner or of the Commissioner of Division, as the case may be, shall be final. (3) Any managing authority who fails to comply with the notice under sub­section (1) shall be liable to a fine which may extend to fifty rupees. Explanation - Managing authority shall include Headmaster, Secretary or other person directly managing the school." 9. The law of jurisdiction of civil court as enshrined in section 9 of the Code is that unless expressly or impliedly barred, civil court has plenary jurisdiction to try all suits of civil nature. The corollary is that jurisdiction of civil court can be expressly or impliedly barred by a statute. Willes, J expressed his view in Volverhomton New Water Works Co. v. Hawkes Ford ".....where there is liability existing at common law and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law.....unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has election to pursue either that or the statutory remedy". 10. Relying on the view of Wllies, J the hon'ble Supreme Court held in the case of Firm Seth Radhakishan v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547 that mere conferment of special jurisdiction on a tribunal in respect of a matter does not itself exclude jurisdiction of civil court. The previous view of the Judicial Committee of the Privy Council in the Secretary of State v. Mask & Co., AIR 1940 PC 43 was also the same. The Privy Council went a step further to hold that even where a statute expressly bars jurisdiction of civil court but a case is made to the effect that either the mandatory procedure prescribed under the statute was not followed or that there was gross violation of the fundamental judicial procedure, i.e., principles of natural justice, then a civil court can step in. Ultimately in Premier Automobiles Ltd. v. Kamlakar Shantnram, AIR 1975 SC 2238 , Supreme Court while deciding as to whether dispute involved in that case was triable by civil court or it was to be referred to Labour court/industrial tribunal constituted under Industrial Disputes Act, 1947 held as follows : (i) If the dispute is neither industrial dispute nor does it relate to enforcement of any other right under the Act, the remedy is in the civil court; (ii) If the dispute is an industrial arising out of right or liability under the Act, the jurisdiction of civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy; (iii) If the industrial dispute relates to the enforcement of an right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act; (iv) If the right which is sought to be enforced is a right created under the Act, then the remedy is under the provisions of that Act only. 11. Applying the ratio of the aforesaid judicial pronouncements the law that emerges is that if a special right is created by a statute and there is procedure for enforcement of such right and that such right did not exist prior to enactment of the special statute, in that event irrespective of whether there is express ouster of civil court's jurisdiction or not, the jurisdiction of the civil court would stand automatically barred. Of course, in that case also, if there is violation of the principles of natural justice or there is violation of the procedure prescribed under the statute which bars jurisdiction of civil court, in that event instead of express ouster, civil court shall have jurisdiction to entertain a suit. However, if such right was in existence in common law prior to the enactment of the special law, the plaintiff shall have right to elect the forum. 12. Having so found, now it is to be seen as to whether under the facts and circumstances of this case, jurisdiction of the civil court is ousted. However, if such right was in existence in common law prior to the enactment of the special law, the plaintiff shall have right to elect the forum. 12. Having so found, now it is to be seen as to whether under the facts and circumstances of this case, jurisdiction of the civil court is ousted. Section 231(2) of the GMC Act, Commissioner is vested with power to take such action as may be deemed necessary keep the drains free from public nuisance by emptying, flushing, cleaning and emptying the drains. Commissioner may even pass orders in case of private drains to get the same repaired, altered or put in good condition by the owners. In case an unauthorized building is constructed on drain, commissioner has been endowed with power under section 239 of the CMC Act to remove such obstruction. Section 243 gives power to Commissioner to require the owner or occupier of any land or building to cleanse, repair, cover, fill up or drain off any private well tank etc. if it appears injurious to health or offensive to the neighbourhood. In exercise of power under section 248 of the CMC Act, Commissioner may authorize a person other than the owner of a drain to use the same or to be joint user thereof. Aforesaid sections show that in the event a private drain is blocked by its owner, the Commissioner of the GMC may not only issue directions for clearing the same but may even declare any person as joint user of a drain along with its owner. A perusal of the plaint in entirety, reveals that the plaintiff is aggrieved at obstruction of a drain by the defendant because such, obstruction resulted in blockade of water of his house as well as of the houses of his neighbours. The plaintiff has claimed a declaration that drain at Schedule C to the plaint is public drain and that the defendant cannot block the same. A prayer for decree of injunction has also been prayed for in the plaint against the defendant so that the plaintiff can use the drain uninterruptedly. The plaintiff prayed for temporary injunctions vide accompanying Misc. case under order XXXIX, rules 1 and 2 of the Code and eventually got the drain cleared by virtue of injunction order obtained from civil court. The plaintiff prayed for temporary injunctions vide accompanying Misc. case under order XXXIX, rules 1 and 2 of the Code and eventually got the drain cleared by virtue of injunction order obtained from civil court. Now, the suit is really aimed at getting perpetual injunction against the defendant so as to keep the suit drain open. The same relief is apparently available under the aforesaid provisions of the GMC Act. Once an alternative efficacious remedy cxists~in this respect then a decree/order of mandatory injunction by civil court would be barred under section 41(h) of the Specific Relief Act, 1963 and consequently the real relief the plaintiff wants would remain unavailable in civil court. Such a bar under section 41(h) of the Specific relief Act, 1963 would be a bar within the meaning of order VII, rule 11(d) of the Code/viewed from another angle as to whether rights claimed in the plaint are creature of GMC Act, it would appear that under section 246 of the GMC Act, an owner or a joint owner of drain connected with municipal drain is obliged to allow others to use the drain. Section 248 on the other hand empowers Commissioner to authorize any person to use a drain. Power to get clearing or repairing of drain is also vested on Commissioner. These rights did not exist prior to enactment of the special statute referred to above and thus relief claimed by the plaintiff can be said to have been created by the GMC Act only. Consequently, in view of the law referred to above, jurisdiction of civil court would stand ousted by implication and the party can claim relief under the procedure prescribed under the GMC Act only. 13. Besides, there is yet another aspect to be noticed in this case. The plaintiff having claimed that the drain in question is a public drain has further pleaded in paragraphs 8 and 9 of the plaint that obstruction created by the defendant on the suit drain has caused unpleasant situation in the locality including the house of the plaintiff and his neighbour, namely, Suwola Devi. Prima facie, the suit is not only for the benefit of the plaintiff but also others including Suwola Devi who has not been joined as plaintiff or defendant. Prima facie, the suit is not only for the benefit of the plaintiff but also others including Suwola Devi who has not been joined as plaintiff or defendant. Prayer for decree of civil court of this nature for removal of obstruction affecting public is essentially a suit under section 91 of the Code. Once on perusal of the plaint in entirety the real nature of the suit is recognized as a one under section 91 of the Code, it has to conform to the requirements of the said section. A suit under section 91 of the Code can be filed either by two or more private persons or otherwise it can be filed alone by The Advocate General of the stale. Here, suit has been filed by one plaintiff and he is not the Advocate General of the state and in this view of the matter, the suit suffers from yet another infirmity which undoubtedly shall be a bar within the meaning of order VII, rule 11(d) of the Code. 14. In view of the discussions made above, the impugned order cannot be sustained. The learned trial court has not considered these aspects of the matter while considering the maintainability of the suit which really was an exercise under the jurisdiction derived from order VII, rule 11(d) of the Code of Civil Procedure. The suit is not maintainable. The plaintiff, however, shall be at liberty to ventilate his grievances under the relevant provisions of the Gauhati Municipal Corporation Act, 1971, if so advised. The impugned order, therefore, cannot be approved to be a one passed in due exercise of jurisdiction and accordingly the same is set aside. The plaint in Title suit No. 334 of 2011 of the court of learned Munsiff No. 2, Kamrup at Guwahati stands rejected. Revision petition is allowed. 15. No order as to cost.