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Rajasthan High Court · body

2016 DIGILAW 1145 (RAJ)

Sushma v. Kan Singh

2016-08-08

VIJAY BISHNOI

body2016
JUDGMENT : Mr. Vijay Bishnoi, J. This writ petition has been filed against the order dated 01.06.2016 passed by Additional Civil Judge No. 1, Bikaner (for short 'the trial court' hereinafter), whereby the trial court while partly allowing the application filed by the petitioner under Order 14, Rule 5 read with section 151 CPC has ordered for framing one issue out of five issues proposed by the petitioner. 2. Brief facts of the case are that respondent Nos. 1 to 5 have filed a suit for permanent injunction against the petitioner and the Municipal Corporation, Bikaner while claiming that they are residents of Mahant Ji Ka Dera area and are using a lane for their ingress and egress which is about 10-12 feet along with 150 families. It is claimed that the house of the petitioner is existing at the very same place, where the lane connects to the main road. It is alleged that the petitioner has started digging the underground at her house for the purpose of constructing a building for commercial purpose, however, the petitioner has expanded the digging towards the lane beyond her plot size. It is further alleged that the plaintiff and other neighbours have asked the petitioner not to raise construction on the lane, however, the petitioner has refused to stop the construction while claiming that the concerned authorities have granted her permission to raise construction. The plaintiffs have prayed that by way of permanent injunction, the petitioner be restrained from raising construction beyond her plot size. The petitioner has also prayed that the respondent - Municipal Corporation, Bikaner may also be restrained by issuing the injunction that they would enquire into the construction raised by the petitioner and if the same is found against the Rules or that the construction has been raised by the petitioner beyond her pattasud land, then the same may be removed. 3. In response to the plaint, written statements were filed by the petitioner and on the basis of which the trial court has framed 3 issues. The issue No. 1 is to the effect that whether the petitioner is raising construction exceeding the measurement of her pattasud land and dug the underground without any permission. The onus of proving of the Issue No. 1 was placed on the respondent-plaintiffs. The issue No. 1 is to the effect that whether the petitioner is raising construction exceeding the measurement of her pattasud land and dug the underground without any permission. The onus of proving of the Issue No. 1 was placed on the respondent-plaintiffs. Issue No. 2 is to the effect that the suit filed by the petitioner was based on probabilities and, therefore, is liable to be dismissed. The onus of proving the Issue No. 2 was placed on the petitioner-defendant. Issue No. 3 is in respect of reliefs. 4. The aforesaid issues were framed by the trial court on 04.02.2015. However, on 13.05.2016, the petitioner filed an application with a prayer for framing additional issues. The said application was opposed by the plaintiff, however, the trial court vide order dated 01.06.2016 has partly allowed the application filed by the petitioner and framed an additional issue that as an alternative remedy is available to the plaintiffs, the suit is not maintainable. Being aggrieved with the order dated 01.06.2016, the petitioner has filed this writ petition. 5. Learned counsel for the petitioner has argued that the petitioner has proposed as many as five issues to be framed, however, the trial court has framed only one issue out of the said proposed issues, though the other issues are also very important for the adjudication of the controversy. Learned counsel for the petitioner has submitted that Issues No. 1 to 3 proposed by her are based on the pleadings of the parties and the another issue regarding the serving of notice to the Nagar Nigam is purely based on law but the trial court has failed to exercise its jurisdiction in not framing the proposed issues. Learned counsel for the petitioner has, therefore, prayed that the order dated 01.06.2016 passed by the trial court is liable to be set aside and the trial court may be directed to frame other issues also as suggested by the petitioner in her application filed under Order 14, Rule 5 read with section 151 CPC. 6. Heard learned counsel for the petitioner and perused the impugned order as well as the material available on record. 7. From perusal of the impugned order as well as the material available on record, it is clear that vide application under Order 14, Rule 5 read with section 151 CPC, the petitioner has proposed for framing five additional issues. 6. Heard learned counsel for the petitioner and perused the impugned order as well as the material available on record. 7. From perusal of the impugned order as well as the material available on record, it is clear that vide application under Order 14, Rule 5 read with section 151 CPC, the petitioner has proposed for framing five additional issues. Out of five additional issues, the trial court has framed only one additional issue as suggested by the petitioner. In respect of other issues, the trial court observed that the Issues Nos. 1 to 3 proposed by the petitioner cover the Issue No. 1 framed by the court earlier. 8. After going through the Issue No. 1 framed by the trial court and the proposed Issue Nos. 1 to 3, this Court is also of the opinion that the Issue No. 1 already framed covers the proposed Issues No. 1 to 3. In respect of the issue regarding the issuance of notice to the Municipal Corporation before filing of the suit is concerned, this Court is of the opinion that the trial court has rightly observed that the petitioner has no right to object about the non-issuance of the notice to the Municipal Corporation before filing of the plaint as the same can only be raised by the Municipal Corporation, which is also the party to the suit. Otherwise, also, it is noticed that the suit preferred by the respondents is for injunction and as per sub-section (3) of section 304 of the Rajasthan Municipalities Act, 2009, the requirement of two months' notice is clearly exempted if the only relief claimed in the suit is for injunction. 9. In such circumstances, I do not find any merit in this writ petition and the same is hereby dismissed. 10. Stay petition also stands dismissed.