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2015 DIGILAW 986 (RAJ)

Hanuman Prasad Khandelwal v. Hansraj

2015-05-04

PRAKASH GUPTA

body2015
JUDGMENT : Prakash Gupta, J. This revision petition has been filed against the Order dated 23/12/2013 passed by the Civil Judge, Senior Division, Neem ka Thana in civil suit No. 82/2003 (172/2005), titling Hansraj v. Hanuman Prasad, whereby the application filed by the petitioner-defendant under Order 7, Rule 11 C.P.C. was dismissed. 2. Brief facts are that the plaintiffs-respondents Nos. 1 and 2 instituted a Regular Civil Suit before the learned trial Court for declaration and permanent as well as mandatory injunction against the defendant-petitioner and Municipal Board, Neem ka Thana on 03/09/2003, inter alia, claiming the following reliefs: - ^^¼d½ ;g fd okn i= ds lkFk layXu ekufp= esa v{kj d&[k&x&?k ls nf'kZr Hkwfe dks jkLrk vke o iM+r Hkwfe vke ?kksf"kr fd;k tkosA ¼[k½ ;g fd izfroknh la0 1 ds }kjk fookfnr Hkwfe d&[k&x&?k ij fd;s x;s vfrdze.k dks /oLr fd;k tkdj mls jkLrk vke o iM+r Hkwfe ds mi;ksx&miHkksx ds fy, iwoZor [kqyok;k tkosA ¼x½ ;g fd izfroknh la0 2 uxjikfydk dks LFkkbZ fu"ks/kkKk ls ikcUn fd;k tkos fd og izfroknh la0 1 o fdlh vU; dks fookn dh Hkwfe d&[k&x&?k dk iV~Vk tkjh ugha djs] vkSj uk gh fuekZ.k Lohd`r iznku djsA ¼?k½ ;g fd izfroknhx.k dks LFkkbZ fu"ks/kkKk ls ikcUn fd;k tk;s fd os layXu ekufp= esa nf'kZr d&[k&x&?k jkLrk vke o lkoZtfud ij oknhx.k ,oa ukxfjdksa ds vkokxeu o okgu ykus ys tkus esa fdlh izdkj dh ck/kk ,oa :dkoV u MkysA** 3. An application under Order 7, Rule 11 CPC was filed by the petitioner-defendant raising an objection about the maintainability of the suit in absence of a notice as required to be served under Section 271 of Rajasthan Municipality Act, 1959 (for short 'the Act'). 4. An application under Order 7, Rule 11 CPC was filed by the petitioner-defendant raising an objection about the maintainability of the suit in absence of a notice as required to be served under Section 271 of Rajasthan Municipality Act, 1959 (for short 'the Act'). 4. A reply to the application was filed by the respondents-plaintiffs, para 1 of the reply as follows: ^^1& ;g fd izkFkZuk i= dh [k.M la0 1 Lohdkj gSA 2& ;g fd izkFkZuk i= dh [k.M la[;k 2 feF;k gksus ls Lohdkj ugha gSA ewy okn izLrqr fd, tkus ls iwoZ oknhx.k us izfroknh la0 2 uxjikfydk uhedkFkkuk dks nks ekg dh vof/k dk fof/kor uksfVl fnukad 16-5-2002 ¼lksyg ebZ lu nks gtkj nks½ dks uxjikfydk vf/kfu;e dh /kkjk 271 dh vuqikyuk esa fn;k Fkk vksj mDr frfFk dks gh uxjikfydk uhedkFkkuk ds deZpkjh us uksfVl izkIr fd;k FkkA ,sls uksfVl esa Jh guqekuizlkn [k.Msyoky izfroknh la0 1 ds fo:) jkLrk vke esa fd, x;s vfrdze.k dks gVokus dk vuqrks"k pkgk x;k Fkk vkSj Li"V dj fn;k x;k Fkk fd uxjikfydk uhedkFkkuk }kjk vfrdze.k ugha gVkus dh fLFkfr esa oknh ¼izkFkhZ½ dks U;k;ky; dh 'kj.k ysuh iM+sxhA** 5. The trial Court as indicated herein above, rejected the application filed by the petitioner-defendant No. 1, hence, this revision. 6. It is submitted by the learned counsel for the petitioner Mr. Mahesh Gupta that the plaintiff sought relief of declaration as well as injunction and the same was sought against the Municipal Board, Neem ka Thana and as such without compliance of Section 271 of the Act, the suit is not maintainable. He relied upon Nagar Palika, Nathdwara v. Temple Board, Nathdwara reported in RLW 1981 page 239, Anil Kumar Shrivastava v. Mukesh Chand Saxena & ors. Reported in RRT 2015 (1) 114, Mohammed Shafi and Others v. Sant Kumar and Others reported in WLC (Raj.) 1993 (1) page 11, Kanti and Others v. U.I.T., Bikaner and others reported in AIR 1998 page 108, Anand Laxmi Enterprises v. Vasant Balu Mhatre & ors. reported in 2009 (1) CCC 696 (Bombay) and Nagar Palika Parishad, Mihona and Anr. v. Ramnath, Anr. reported in 2014 (2) WLC (Sc) Civil 204 and Murli Ram & Ors. v. State of Rajasthan & Ors. reported in 2014(3) DNJ (Raj.) 1105. 7. reported in 2009 (1) CCC 696 (Bombay) and Nagar Palika Parishad, Mihona and Anr. v. Ramnath, Anr. reported in 2014 (2) WLC (Sc) Civil 204 and Murli Ram & Ors. v. State of Rajasthan & Ors. reported in 2014(3) DNJ (Raj.) 1105. 7. It is also submitted that the plaintiffs filed this suit with regard to the public way and removal of the structure constructed, affecting the said public way. In view of Section 91(1) of CPC, the suit for public nuisance can only be filed by the Advocate General or with the leave of the Court by two or more persons. In the case at hand, the plaintiffs does not have an independent right over the said public way. Therefore, as per Section 91(1) of CPC, the suit filed by the plaintiff-respondent is not maintainable without complying the requirements of Section 91 (1) CPC. On this count too, the suit is liable to be rejected. 8. Per contra, the learned counsel for the plaintiffs-respondents submitted that the trial Court was justified in dismissing the application as the notice, required under Section 271 of the Act was given by the plaintiff prior to the filing of the suit on 16/05/2002. 9. In the facts of this case it is not require to consider the Judgments cited by the learned counsel for the petitioner because the plaintiffs-respondents are not disputing the fact that the notice under Section 271 of the Act is required to be given in the case at hand to the Municipality before filing of the suit but the plaintiffs contended that prior to the institution of the suit required notice was given on 16/05/2002. 10. In view of this, what has to be examined is whether the notice dated 16/05/2002 fulfils the legal requirement of Section 271 of the Act. 11. 10. In view of this, what has to be examined is whether the notice dated 16/05/2002 fulfils the legal requirement of Section 271 of the Act. 11. The notice which was alleged to be given by the plaintiffs to the Municipality is as follows: - ^^lsok esa] Jheku~ vf/k'kk"kh vf/kdkjh] uxjikfydk&uhe dk Fkkuk fo"k;%& vfrdze.k gVkus ckcrA Jheku~ th] fuosnu gS fd izkFkhZ dk iq[rk edku Hkwfe la0ua0 796] 797] 798] d] [k flfV losZ ds eqrkfcd iV~Vk 'kqnk 278-85 oxZxt gSA tks ewy nLrkostksa esa ntZ gSA ¼1½ ;g fd izkFkhZ dks 117 oxZxt dk iV~Vk fn;k x;k gSA izkFkhZ vius iwoZtksa ls iq[rk deku cuk j[ksa gSA mudks rksM QksM djds iqu% fuekZ.k dj jgk gSA ftldh Lohd`fr uxjikfydk uhedkFkkuk esa fuekZ.k Lohd`fr 'kqYd 462@& :i;s tek izkIr djkdj jlhn o iqu% fuekZ.k Lohd`fr izkIr dj j[kh gSaA ¼2½ ;g fd izkFkhZ ds edku ds ihNs guqeku izlkn iq= Jh Lo0 Jh pkSFkey [k.Msyoky us lhVh losZ esa ntZ vke jkLrs dks M.Mk] iDdk yxkdj vkxs yksgs dk xsV yxkdj vfrdze.k dj fy;k gSA bldks gVok;k tkos rFkk flfV losZ esa ntZ vke jkLrs dks vke jkLrk dk;e djus dk Je djsA vU;Fkk eq>s etcwj gksdj U;k;ky; dh 'kj.k ysuh iM+sxhA** 12. The provision of Section 271 of the act reads as under: - "271. Suits against board of its Officers-(1) No suit shall be instituted against a board or against the chairman, vice-chairman, member, officer or servant of a board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice thereof in writing has been, in the case of a board, left at the office and, in the case of the chairman, vice-chairman, member, officer, servant or persons delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief caught the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left." 13. A bare look at the said provisions reveal that no suit shall be instituted against the Municipality and its Officers until the expiration of two months next after notice thereof in writing has been given explicitly stating the cause of action, the nature of relief sought and the plaint contained statement that such a notice was delivered or left. 14. Further, under sub Section, 1 it was required to state in the plaint that a notice, as required under Section 271, had been delivered to the defendant or left at his office or place of abode. 15. A bare reading of the notice reveals that the plaintiffs explicitly stated the cause of action and the nature of relief sought. It appears that the notice is not a mere letter informing a complaint, but indeed fulfils the legal requirement of Section 271 of the Act. 16. The notice under Section 271 of the Act must be construed in light of the common sense. The Court must keep in mind the ultimate object of serving such notice i.e., to afford an opportunity to the municipality to consider the legal position and to settle that claim put forth by the prospective plaintiff if the same appears to be just and proper so as to ensure that public time and money is not wasted. A notice must be read as whole. A venial defect or error, not defeating the purpose of the notice, would not allow to defeat substantive justice and excuse the Government official to deny the just claim of the intended plaintiff. A miner defect is in consequential so long as the notice furnishes the necessary information. A suit cannot be dismissed on a mere procedural technicality, suppressing the just claims of the intending plaintiff. In light of this, as also, upon the perusal of the notice delivered on 16.05.2002, I do not find any defect which goes to the very root of the matter invalidating the requirements as fullfill by the plaintiffs. More so, no objection, with regard to legality of the notice, has been raised by the Municipality itself. 17. Also, the plaint does contain a statement to the effect that notice, as required under Section 271, had been delivered to the defendant at his office or place of abode or left. 18. More so, no objection, with regard to legality of the notice, has been raised by the Municipality itself. 17. Also, the plaint does contain a statement to the effect that notice, as required under Section 271, had been delivered to the defendant at his office or place of abode or left. 18. So far as the objection regarding Section 91 is concerned, the same was not raised in the trial Court, for the first time it cannot be taken at the stage of revision. The remedy of revision is a limited one whereby the Court can only and only Act when the subordinate Court commits a jurisdictional error that said, a revision petition cannot contain new ground of attack. The objection, hence, stands invalidated. 19. In view of the above discussion I find no jurisdictional error in the impugned Order dated 23/12/2013 the revision is dismissed. Revision dismissed.