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2016 DIGILAW 347 (UTT)

Arun Kumar Mittal v. State of Uttarakhand

2016-07-15

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. 1. Having heard the learned Counsel on behalf of the revisionist, the exemption application (CLMA 7159/2016) is hereby allowed. Revisionist is exempted from filing the certified copy of the impugned order dated 13.7.2016. 2. After hearing learned Counsel for the parties, it transpires that the ‘Boat House Park’ located in Daakpathar Barrage, Tehsil Vikas Nagar, District Dehradun was being run and maintained by the revisionist, herein, which was meant for morning-evening walk of the people besides children recreation, therefore, it was a place for entertainment of all concerned. 3. On 19.11.2010, revisionist entered into an contract with the respondents by making the highest bid to run and maintain such Park w.e.f. 20.7.2011 to 19.7.2016 viz. for five years. 4. The cause of action arose when the respondents adverted a public auction in a local newspaper on 6.7.2016 inviting fresh bids. Since, on 7th and 8th July, 2016, the government offices as well as Courts were closed on Eid celebrations and 9th & 10th July being the second Saturday and Sunday, so, the revisionist could present his Original Suit only on 11.7.2016 with an application u/s 80(2) r/w Section 151 of the Code, requesting that considering the exigency of the situation, he be heard without lapse of two months’ mandatory period, as contemplated u/s 80 of the Code of Civil Procedure (CPC). The Court below did not grant him any relief and his application was rejected vide the impugned order dated 11.7.2016 and it was directed to return his plaint. 5. No sooner did the Civil Judge reject his application and return the plaint, revisionist/ plaintiff served the notice on the respondents on 12.7.2016, as contemplated u/s 80(1) of the Code and thereafter, further presented a fresh suit on 13.7.2016 with an application for the same relief. Learned Civil Judge rejected the said application holding that the same is not maintainable and further, returned the suit of the plaintiff. So, feeling aggrieved, revisionist has come up in revision before this Court. 6. It has been submitted on behalf of the revisionist that since the auction publication was made on 6.7.2016, unlike of similar auction made some time in the year 2010 for the agreement to be executed in July, 2011, hence, there was no occasion for the plaintiff to serve the notice u/s 80 CPC. 6. It has been submitted on behalf of the revisionist that since the auction publication was made on 6.7.2016, unlike of similar auction made some time in the year 2010 for the agreement to be executed in July, 2011, hence, there was no occasion for the plaintiff to serve the notice u/s 80 CPC. As has been indicated above, when the previous contract between the parties was executed on 19.11.2010 i.e. more than eight months before the five years period started to run w.e.f 20.7.2011 to 19.7.2016, hence the plaintiff could not anticipate such legal proceedings pre-hand. Therefore, considering the emergent situation, it was desirable for the Court below to render an opportunity of hearing after granting the exemption u/s 80(2) of the CPC. 7. Per contra, learned Brief Holder, appearing on behalf of the State, has drawn the attention of this Court towards the Contract dated 19.11.2010 and argued that even in that document, there was a condition, as stated in Clause no.21, which envisages that in the case of any dispute between the parties, the same shall be referred to the Superintendent Engineer, Tons Civil Construction Division, Dehradun, whose decision shall be final and irrevocable on the person taking the park on contract. 8. Further attention of this Court has been drawn towards Section 5 of the Arbitration & Conciliation Act, 1996, which reads as under: - “5. Extent of judicial intervention- Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.” 9. To my mind, neither the Clause, as indicated above nor Section 5 of the Arbitration Act, have any applicability in the present controversy for the reason that these provisions can be invoked only where the dispute arises for any controversy as regards the terms and conditions of the Contract dated 19.11.2010 during the 5 years’ term which is going to end on 19.7.2016. 10. 10. The present controversy has not been dealt with in any of the terms of such Contract and on looking to the exigency of situation, since there was no time available for the plaintiff/revisionist to give two months’ notice to the respondents, hence moving such an application in the Court was not undesirable because the provisions of Section 80(2) r/w Section 151 have been enacted in the Code foreseeing these contingencies only and for no other purpose. The case of the respondents would have been on a sound reasoning had the auction publication been adverted in the newspaper quite long ago, like the earlier one but here, it was not so, therefore, I find that the Court below was quite harsh in not permitting the plaintiff to put up his case even. 11. For the aforesaid reasons, I allow this revision instantly and set aside both the impugned orders dated 11.7.2016 and 13.7.2016 passed by the In-charge Civil Judge (Senior Division), Vikas Nagar, District Dehradun, and at the same time, exempt the plaintiff/revisionist from the mandatory purview of Section 80(1) of the CPC i.e. to serve two months’ notice on the respondents before launching the civil suit. Learned Civil Judge is directed to hear the injunction application moved by the plaintiff and adjudicate the same on its merits. 12. Stay application (CLMA 7147/2016) stands disposed of accordingly. 13. Let a copy of this judgment and order be issued to learned Counsel for the revisionist, today itself, on payment of usual charges.