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2022 DIGILAW 988 (RAJ)

Jai Hind Buildcon v. Heeralal Sharma

2022-03-28

SUDESH BANSAL

body2022
ORDER 1. This revision petition has been filed assailing the order dated 29.07.2015 passed by Civil Judge, Kishangarh in Civil Suit No.89/2014 whereby and whereunder petitioners' application under Order 7 Rule 11 CPC has been dismissed. 2. Heard counsel for both parties and perused the impugned order as well as the plaint. 3. Copy of plaint has been provided to this Court during course of hearing of this revision petition. 4. By perusal of plaint, it reveals that respondents-plaintiffs have filed civil suit alleging creation of public nuisance by defendants by raising a construction of multi storey building. It has been averred that petitioners (defendant Nos.2 & 3) do not have any ownership rights/documents of suit property, however, the defendant No.1- Nagar Parishad (respondent No.5 herein) has accorded permission to raise construction. The plaint has been valued for the purpose of permanent injunction. 5. The following relief in the plaint has been prayed for:- 6. Petitioners (defendant Nos.2 & 3) filed an application under Order 7 Rule 11 CPC raising following objections that:- '(i) The plaint does not disclose a clear right to sue and cause of action to plaintiffs; (ii) Plaintiffs have made a prayer to cancel the sanction for construction given by Nagar Parishad but has not valued the suit for such relief, hence the suit is undervalued; (iii) Plaintiffs have asked relief against the Nagar Parishad, Kishangarh without issuing a notice under Section 304 of Rajasthan Municipalities Act, 2009 (hereinafter referred to as, 'the Act') which is mandatory for institution of a civil suit against Nagar Parishad; (iv) The relief of injunction is barred by virtue of Section 41(h) of Specific Relief Act.' 7. Plaintiffs have filed reply to the application alleging inter alia that the suit has been valued for the purpose of permanent and mandatory injunction and since the suit was of urgent nature, the exemption of statutory notice under Section 80(2) CPC was sought for which has been granted by trial court vide order dated 16.09.2014. It was averred that plaint as a whole discloses a cause of action for causing public nuisance by private defendants by raising illegal construction of multi storey building. 8. It was averred that plaint as a whole discloses a cause of action for causing public nuisance by private defendants by raising illegal construction of multi storey building. 8. Learned trial court has dismissed the application vide impugned order dated 29.07.2015 with findings that the question of valuation of suit would be decided after recording evidence; the notice under Section 304 of the Act has been exempted vide order dated 16.09.2014. In the impugned order, there is no findings on the cause of action/right to sue accrued to plaintiffs to bring the present suit. 9. Learned counsel for respondents has relied upon judgments passed by this Court in case of Moti Lal vs. Representatives of Public in General of Nawa City reported in 2011(2) DNJ (Raj.) 569] and in the case of Govind Narayan vs. Shri Baheti Dharmshala & Ors. [S.B. Civil Writ Petition No.3422/2008]. 10. Having heard counsel for both parties. 11. It is trite law that at the time of deciding the application under Order 7 Rule 11 CPC, averments of plaint are germane. It is no more res integra that averments of plaint should be read meaningfully and not barely and casually. On careful and meaningful reading of the averments of plaint as a whole, this Court finds that plaintiffs have not mentioned a clear right to sue accrued to them and further plaint does not disclose a cause of action accrued to plaintiffs to bring the present suit. Plaintiffs have not made any averment regarding their locus standi. Even if plaintiffs' suit is treated as a representative suit, it is not reflected that the provision of Order 1 Rule 8 CPC pressed into service. Further the trial court has not given any finding/observation about the plaintiffs' right to sue the plaint and to the cause of action accrued to plaintiffs to bring this suit. If plaintiffs have brought the present suit in representative capacity, to stop any public nuisance, the trial court has to examine this aspect as well. 12. Secondly, in the plaint, plaintiffs have not valued their suit for the purpose of seeking relief for cancellation of sanction granted by the Nagar Parishad, Kishangarh to defendant Nos.2 & 3 allowing them for construction of multi storey building. The relief seeking cancellation of permission is separate and distinct relief than the relief of injunction prayed for. 12. Secondly, in the plaint, plaintiffs have not valued their suit for the purpose of seeking relief for cancellation of sanction granted by the Nagar Parishad, Kishangarh to defendant Nos.2 & 3 allowing them for construction of multi storey building. The relief seeking cancellation of permission is separate and distinct relief than the relief of injunction prayed for. Thus, according to Section 6 of Rajasthan Court-Fees and Suits Valuation Act, 1961 it is required for plaintiffs to value their suit for the purpose of seeking relief of cancellation of the permission by Nagar Parishad, when they have made a specific prayer in this regard. 13. Thirdly, as far as requirement of notice under Section 304 of the Act is concerned, the exemption envisaged under Section 304 (3) of the Act is permissible when the injunction is prayed for against municipal bodies. In the present case, no injunction of urgent nature has been prayed for against municipal bodies and further there is no order on record granting exemption to plaintiffs for notice under Section 304 of the Act. The exemption granted to plaintiffs for notice under Section 80(2) vide order dated 16.09.2014 should not be treated as exemption of the notice under Section 304 of the Act. 14. As far as the objection with regard to bar of granting the relief of injunction under Section 41(h) of Specific Relief Act is concerned, the same cannot be examined at the stage of deciding the application under Order 7 Rule 11 CPC. 15. For reasons mentioned hereinabove, this Court finds that the impugned order suffers from illegality and jurisdictional error as none of objections raised by petitioners by way of application under Order 7 Rule 11 CPC have been dealt with properly. The objections which fall within the scope of Order 7 Rule 11 CPC like accrual/disclosure of cause of action, undervaluation of civil suit and requirement of statutory notice before institution of civil suit ought to be and should be considered at the stage before proceeding with the trial of the civil suit under Section XVIII of Code of Civil Procedure. 16. Both judgments cited by counsel for respondents hereinabove are not applicable with the facts and circumstances of the present case. Since, the impugned order is found to be suffered from jurisdictional error and material irregularity, the same is quashed and set aside. 16. Both judgments cited by counsel for respondents hereinabove are not applicable with the facts and circumstances of the present case. Since, the impugned order is found to be suffered from jurisdictional error and material irregularity, the same is quashed and set aside. The matter is remanded back to the trial court to decide the application and objections of petitioners afresh in accordance with law within the parameters of Order 7 Rule 11 CPC. 17. With the aforesaid observations, the revision petition stands disposed of. 18. All pending application(s), if any, stand(s) disposed of.