Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 824 (MP)

Renu Bhatnagar v. Municipal Corporation, Gwalior

2017-07-13

S.K.AWASTHI

body2017
ORDER : This revision application has been preferred under section 115 of Civil Procedure Code to call in question the order dated 14-7-2016 passed by 14th Additional District Judge, Gwalior, in Miscellaneous Civil Case No. 1/2016. Vide impugned order, the Court below has rejected the application preferred by the present applicant under Order 7, Rule 11 of Civil Procedure Code. 2. For adjudication of the instant case, it is not necessary for this Court to venture into the merits of the case rather the issue which requires determination is whether an application preferred under Order 7, Rule 11 of Civil Procedure Code is maintainable with respect to an application under section 307(5) of Municipal Corporation Act, 1956 (for brevity ‘the Act of 1956’) or not? Although, for effective adjudication of the issue, the foundational facts are discussed. 3. The applicant has been arrayed as non applicant No. 1 in an application preferred by respondent No. 3 alleging that the construction of house carried by the applicant is illegal and therefore, the respondent No. 3 has made a prayer for grant of an order of injunction with respect to the activity of construction. The matter was registered as Miscellaneous Civil Case and the present applicant was summoned to file her reply to the application. The present applicant rather than filing her reply moved an application under Order 7, Rule 11 of Civil Procedure Code and submitted that the application under section 307(5) of the Act of 1956, does not disclose the cause of action and, therefore, deserves to be rejected at the threshold. 4. The Court below decided the application vide order dated 14-7-2016 and recorded a finding that the application under Order 7, Rule 11 of Civil Procedure Code is not maintainable as the application is preferred under section 307(5) of the Act of 1956 and, therefore, such application cannot partake the character of ‘plaint’ for attracting the powers available under Order 7, Rule 11 of Civil Procedure Code. While recording this observation, the Court below also commented on the merits of the contentions canvased by the applicant in support of the application under Order 7, Rule 11 of Civil Procedure Code. 5. While recording this observation, the Court below also commented on the merits of the contentions canvased by the applicant in support of the application under Order 7, Rule 11 of Civil Procedure Code. 5. Learned counsel for the applicant has vehemently argued that the reasons assigned by the Court below with respect to maintainability of the application under Order 7, Rule 11 of Civil Procedure Code are clearly perverse and, therefore, the matter deserves to be interfered with by this Court. In support of this contention, the learned counsel for the applicant relied upon section 307(5) of the Act of 1956 to point out that the matter is filed before the Civil Court and the Court has ample powers to examine the contents of the application and conclude that the application can be rejected at the threshold which will also save quality judicial time. Consequently, it was submitted that the application can be questioned on the grounds provided under Order 7, Rule 11 of Civil Procedure Code and the impugned order is to be set aside. 6. Per contra, the learned counsel for the respondent supported the reasoning given by the Court below in the impugned order dated 14-7-2016 and submitted that the instant revision application deserves to be set aside. 7. In the context of rival contentions, it is clear that the primary question which will go to the root of the controversy is whether the provision of Order 7, Rule 11 of Civil Procedure Code can be attracted or not, with respect to an application preferred under section 307(5) of the Act of 1956. 8. In order to answer this proposition, it will be expedient to discuss the scheme of the Act of 1956 while carrying out any proceeding under the Act of 1956 before the Court of law. In this regard, the reference to section 393 of the Act of 1956 will clear the dust. Consequently, it would be worthwhile to reproduce section 393 of the Act of 1956 which reads as under:— “393. Procedure in inquiries before Civil Courts. In this regard, the reference to section 393 of the Act of 1956 will clear the dust. Consequently, it would be worthwhile to reproduce section 393 of the Act of 1956 which reads as under:— “393. Procedure in inquiries before Civil Courts. — For the purpose of any appeal, inquiry or proceeding under this Act, the High Court and the District Court, may exercise all the powers conferred on them by the Code of Civil Procedure, 1908, and the Madhya Pradesh Civil Courts Act, 1958 (19 of 1958) and shall observe the procedure prescribed in the said enactments, so as it is not inconsistent with the provisions of this Act. (2) The costs of every appeal, inquiry, or proceeding under this Act shall be payable by such parties and in such proportions as the Court may direct and the amount there of shall, if necessary, be recoverable as if it were due under a decree of the Court.” 9. The perusal of section 393(1) of the Act of 1956 throws light upon the intention of the legislature to equip the Courts exercising their jurisdiction under the Act of 1956; according to which, any proceeding under the Act of 1956 can be taken forward by exercising power conferred by the Code of Civil Procedure, 1908 and the M.P. Civil Court Act, 1958, to the extent such powers are not inconsistent with the provisions of the Act of 1956. To illustrate on the question of inconsistency, it may be observed that the section 393(1) of the Act of 1956 prescribed applicability of appeal in terms of the Code of Civil Procedure, 1908, which would obviously mean that the order passed by the District Court would be subject to appellate jurisdiction of the High Court under section 96 of the Code of Civil Procedure, 1908. However, this appellate provision would not be attracted against the decision of the District Court while exercising jurisdiction under the Act of 1956 because the same would be inconsistent under section 392 of the Act of 1956 which provides that the decision of the district Court shall be subject to revision by the High Court which is the reason behind the conclusion drawn by the Hon'ble Division Bench of this Court in the case of Hari Singh v. Sushila Devi, reported in 1994 MPLJ Online 7 : 1996 JLJ 624 , wherein it was observed that the decision of the District Court can be assailed by filing a revision application before the High Court. 10. Now, the question which arises for consideration is whether there exists any conflicting/inconsistent provision akin to Order 7, Rule 11 of Civil Procedure Code, under the Act of 1956. This question is of much significance because the same shall have bearing on the outcome of the present revision application. 11. This Court has examined the provisions of the Act of 1956 relevant for the purpose of adjudication of the instant case and has not found any such inconsistent provision as discussed in the preceding paragraph. 12. In the light of the above, this Court has no hesitation in concluding that in the light of stipulation contained under section 393 of the Act of 1956, the Provision of Order 7, Rule 11 of Civil Procedure Code will apply with full force and vigor. While recording this observation, this Court has taken note of the observation recorded by the division Bench of this Court in the case of Hari Sing (supra) that the proceedings drawn under section 307(5) of the Act of 1956 are independent of civil suit filed under the provisions of Code of Civil Procedure, 1908. While recording this observation, this Court has taken note of the observation recorded by the division Bench of this Court in the case of Hari Sing (supra) that the proceedings drawn under section 307(5) of the Act of 1956 are independent of civil suit filed under the provisions of Code of Civil Procedure, 1908. There may be a case for argument that section 393 of the Act of 1956 refers to the manner in which the inquiry is to be carried by the Civil Courts and thus, the Court of Civil Procedure, 1908, would be applicable to the extent that it provides for provisions relating to discovery, interrogatories and the manner in which the evidence is to be recorded, although this contention can be best answered by referring to fundamental principles of the interpretation of statutes which provide that heading of a provision of statute cannot control the interpretation of the provision as a whole and a holistic reading of the provision will decide its nature and scope. To fortify this observation, reliance may be placed upon the judgment of the Hon'ble Supreme Court in case of Raichurmatham Prabhakar v. Rawatmal Dugar, reported in (2004) 4 SCC 766 , wherein it was held that:— 14. The view is now settled that the Headings or Titles pre-fixed to sections or group of sections can be referred to in construing an Act of the Legislature. But conflicting opinions have been expressed on the question as to what weight should be attached to the Headings or Titles. According to one view, the Headings might be treated as preambles to the provisions following them so as to be regarded as giving the key to opening the mind of the draftsman of the clauses arranged thereunder. According to the other view, resort to Heading can only be taken when the enacting words are ambiguous. They cannot control the meaning of plain words but they may explain ambiguities. (See: Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, 2004, pp. 152, 155). In our opinion, it is permissible to assign the Heading or Title of a section a limited role to play in the construction of statutes. They may be taken as very broad and general indicators of the nature of the subject-matter dealt with thereunder. (See: Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, 2004, pp. 152, 155). In our opinion, it is permissible to assign the Heading or Title of a section a limited role to play in the construction of statutes. They may be taken as very broad and general indicators of the nature of the subject-matter dealt with thereunder. The Heading or Title may also be taken as a condensed name assigned to indicate collectively the characteristics of the subject-matter dealt with by the enactment underneath; though the name would always be brief having its own limitations. In case of conflict between the plain language of the provision and the meaning of the Heading or Title, the Heading or Title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder. 13. On cumulative consideration of the discussion made hereinabove, the consideration of the facts of the instant case persuades this Court to hold that the trial Court has committed error in concluding that provision under Order 7, Rule 11 of Civil Procedure Code will have no applicability to an application preferred under section 307(5) of the Act of 1956. Moreover, the trial Court cannot be permitted to breath hot and cold in the same breath, as on one hand, the trial Court has held that the application is not maintainable and on the other hand, the trial Court has casually ventured into the merits of the application made under Order 7, Rule 11 of Civil Procedure Code. 14. Taking this view of the matter, the instant revision application is allowed with direction to the trial Court to decide the application under Order 7, Rule 11 of Civil Procedure Code afresh on merits. While deciding the said application, the trial Court shall not be influenced by the observations made by this Court with respect to the merits of the case. Consequently, the impugned order dated 14-7-2016 is set aside with aforesaid discussion. 15. The copy of this order be sent to the trial Court for information and compliance.