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2019 DIGILAW 2672 (RAJ)

Mohan Lal v. Jagdish Prasad Soni

2019-10-15

ABHAY CHATURVEDI

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JUDGMENT Abhay Chaturvedi, J. - This revision petition is directed against the order dated 29.07.2019 passed by Additional Civil Judge No.3, Bikaner in Civil Original Case No.171/2019, whereby the trial court rejected the application filed by the petitioner under Order 7 Rule 11 CPC. 2. The facts relevant and necessary for disposal of the present revision petition are that the respondents - plaintiffs filed a civil suit against the petitioner herein and other defendants for permanent injunction seeking following reliefs: . 3. Upon service of notice, the present petitioner and other defendants, filed written statement. The petitioner also submitted an application under Order 7 Rule 11 CPC with the averment that the plaintiff-respondent has sought relief for cancellation of sale deed executed by the defendant Nos. 2 and 3, the State Government has jurisdiction to grant such relief. It was also averred that the sale deed was executed in the year 2003 and as such, the suit was beyond the prescribed period of limitation, and the same is liable to be dismissed on this ground alone. The point of valuation and the deficiency in Court Fee was also taken in the application and a prayer was made that the application be allowed and the plaint be rejected under the provisions of Order 7 Rule 11 CPC. 4. The plaintiff-respondent submitted reply to the said application and denied the allegations made. He further averred that the sale deed in question is void ab initio and as such there is no need to declare it to be void. It was further averred that the relief sought in the suit cannot be granted by the State Government as alleged in the application. So far as the point of limitation is concerned, the plaintiff averred that the suit was filed after having knowledge of the alleged sale deed. The point of limitation is mixed question of facts and law which can be decided only after taking of evidence of the parties. In the last, prayer was made that the application to be dismissed. 5. The trial court dismissed the application vide order dated 29.07.2019. Hence, this revision petition. 6. The point of limitation is mixed question of facts and law which can be decided only after taking of evidence of the parties. In the last, prayer was made that the application to be dismissed. 5. The trial court dismissed the application vide order dated 29.07.2019. Hence, this revision petition. 6. Learned counsel for the petitioner submitted that the sale deed was executed by the Municipal Council in favour of the defendant No.1 in the year 2003 and the same was within the knowledge of the plaintiffs-respondents but they challenged the sale deed in the year 2019. As such, they filed the suit beyond prescribed period of limitation. It was also submitted that there is alternative remedy available to the plaintiffs to assail the sale deed before the State Government under the Rajasthan Municipalities Act, 2009. It was further submitted that in the suit, the plaintiff has sought relief against the defendant Nos. 2 and 3 but no notice under Section 304 of Rajasthan Municipalities Act, 2009 has been given prior to filing of the suit, which is mandatory and without such notice, the suit is not maintainable. On this ground alone, the suit is liable to be dismissed under the provisions of Order 7 Rule 11 CPC. Learned counsel for the petitioner, in support of his arguments, placed reliance upon the judgment passed by this Court in S.B. Civil Regular First Appeal No.174/2014 (Murli Ram & Ors. Vs. The State of Rajasthan & Ors.) dated 16.07.2014 and Maluram Vs. LRs of Late Smt. Jethi, 2014 4 DNJ 1488 (Raj) . 7. Per contra, learned counsel for the respondents - plaintiffs urged that the plaintiffs have filed the suit with the averment that the sale deed executed by the Municipal Council in favour of the petitioner in null and void. It was further submitted that the Municipal Council has not taken objection regarding supply of notice under Section 304 in its written statement, thus, the right to notice by the Municipality shall be deemed to have been waived by the Municipal Corporation. The petitioner has no right to raise the point of non-compliance of provisions of Section 304 of the Municipalities Act. It was also urged that objections regarding limitation is a mixed question of facts and law which can be decided after evidence of parties. The petitioner has no right to raise the point of non-compliance of provisions of Section 304 of the Municipalities Act. It was also urged that objections regarding limitation is a mixed question of facts and law which can be decided after evidence of parties. In support of his submissions, he relied upon the judgment passed by this Court in the case of Municipal Council, Barmer Vs. State of Rajasthan, (2017) 2 WLC(Raj) 714 (UC) and the judgment of this Court passed in SB Civil Writ Petition No.2001/2016 (Shri Ramchandra (Died) through Lrs & Ors. Vs. Shri Ratan Lal through LRs & Ors. dated 20.05.2019. 8. I have considered the submissions of learned counsel appearing for the parties and perused the material available on record. 9. The main thrust of argument of learned counsel for the petitioner is with regard to non-compliance of Section 304 of the Rajasthan Municipalities Act, 2009 providing for two months notice prior to institution of suit against a Municipality. 10. Section 304 of the Rajasthan Municipalities Act provides as under : (1) No suit shall be instituted against a Municipality or against the Chairperson, Vice-Chair, member, officer or servant of Municipality 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 Municipality, left at its office and, in the case of the Chairperson, Vice-Chairperson, member, officer, servant or person delivered to him or left at his office or place or abode explicitly stating the cause of action, the nature of the relief sought, 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. (2) No action such as is described in subSection (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the causes of action. (2) No action such as is described in subSection (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the causes of action. (3) Nothing in sub-Section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postponement of the commencement of the suit or proceeding. 11. A bare perusal of the written statement filed by the Municipality, revealed that the Municipal Council has not taken any objection with regard to non-compliance of the provisions of Section 304 of the Act providing for two months notice before filing the suit against the Municipality. Therefore, the objection regarding notice under Section 304 of the Act will be deemed to have been waived by the Municipal Council. 12. This Court in the case of Municipal Council, Barmer (supra) held that the right to notice can be waived by the party for whose benefit, it has been provided. It was also held that provisions of sub-section (1) of Section 304 of the Act providing for service of notice upon the Municipal Board does not apply to a suit, wherein the only relief claimed is an injunction. 13. In view of the matter, the suit filed by the plaintiff is not liable to be rejected under the provisions of Order 7 Rule 11 (d) CPC for want of notice under Section 304(1) of the Municipalities Act. 14. So far availability of alternative relief is concerned, the State Government has no jurisdiction to grant relief as sought in the present suit by the plaintiff. Hence, the suit is not liable to be dismissed on the ground of alternative remedy. Apart from, alternative remedy cannot be construed as debarring the civil court from entertaining the suit itself. 15. So far as the other grounds mentioned in the application regarding valuation, limitation, court fee are concerned, all these grounds are mixed question of facts and law, which can be decided after the evidence of the parties is led before the trial court. 16. In view of the discussion made herein above, this Court finds no ground to interfere in the impugned order passed by the court below. 17. 16. In view of the discussion made herein above, this Court finds no ground to interfere in the impugned order passed by the court below. 17. Consequently, the present revision petition is dismissed being devoid of merit.