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2021 DIGILAW 547 (RAJ)

The Municipal Council, Pali v. Ram Chandra

2021-03-04

ARUN BHANSALI

body2021
JUDGMENT 1. This appeal is directed against judgment and decree dated 16.02.2012 passed by Additional Civil Judge (Senior Division), Pali, whereby, the suit filed by the respondent for mandatory injunction has been decreed and judgment and decree dated 09.08.2017 passed by the District Judge, Pali, whereby, the appeal filed by the appellant has been dismissed, respectively. 2. The suit was filed by the respondent inter alia with the submissions that he was in possession of a plot of land at Tilak Nagar, Pali for over 40 years, however, the respondent threatened to demolish the plaintiff's construction and, therefore, filed suit No. 234/1995 for permanent injunction, which suit was decreed on 27.07.1999 and by permanent injunction the defendant was restrained from taking any action without following due process of law. Pursuant thereto a notice under Section 203 of the Rajasthan Municipalities Act, 1959 ('the Act'), was issued to which it is claimed that reply was filed. However, without providing reasonable opportunity, by order dated 07.11.2008 again order was passed, for which the suit seeking mandatory injunction was filed. The suit was contested by the appellant by filing written statement and indicating that due process was followed and the order dated 07.11.2008 did not call for any interference. 3. The trial court framed five issues and after evidence was led by the plaintiff and the appellant did not lead any evidence, the trial court recorded following finding in the suit: And based on its finding, passed the following decree: 4. Feeling aggrieved, the appellant filed first appeal. 5. The first appellate court after hearing the parties, again came to the same conclusion that the plaintiff was not afforded sufficient opportunity and, therefore, dismissed the appeal. 6. Learned counsel for the appellant made submissions that the two courts below were not justified in decreeing the suit / dismissing the appeal, inasmuch as, the defendant had no case, he was afforded sufficient opportunity, inasmuch as, the matter remained pending for over 4 years and as the defendant, did not even file reply, there is no question of violation of principles of natural justice and, therefore, on that count the orders passed by the two courts below holding that principles of natural justice were violated, give rise to substantial question of law. 7. 7. Learned counsel for the respondent with reference to the findings recorded by the two courts below insisted that the respondent-plaintiff was not afforded sufficient opportunity of hearing, inasmuch as, he was not given chance to lead evidence in support of his case as he had sufficient material, which was produced before the trial court, wherein, he has exhibited 40 documents showing his settled possession over the plot of land and his right to continue in possession and, therefore, the judgment impugned does not call for any interference / give rise to any substantial questions of law. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. A bare perusal of the finding recorded by the trial court quoted here-in-before reveals that the court has come to a positive conclusion based on the order sheets which were produced before the court though not exhibited that the plaintiff was not provided any opportunity to lead evidence and as such, on account of violation of principles of natural justice, passed the decree as noticed here-in-before. 10. The trial court has simply ordered again to provide opportunity to the respondent and take proceedings after adopting due procedure. The appellate court has again reiterated the said aspect. 11. Though learned counsel for the appellant made submissions that no reply was filed by the plaintiff in response to the notice issued under Section 203 of the Act, there appears to be no ground raised in this regard before the appellate court. In view thereof, the said issues sought to be raised cannot be countenanced. 12. In any case, once the two courts have concurrently found lack of sufficient opportunity granted to the respondent to lead evidence, the judgments impugned do not call for any interference / the same do not give rise to any substantial question of law. 13. Consequently, there is no substance in the appeal, the same is, therefore, dismissed.