Municipal Commissioner vs Lh Of Decd Amrutlal Sukhabhai ...
2021 Latest Caselaw 7022 Guj

     C/CRA/159/2021                               ORDER DATED: 28/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CIVIL REVISION APPLICATION NO. 159 of 2021

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                 MUNICIPAL COMMISSIONER & 1 other(s)
                              Versus
               LH OF DECD AMRUTLAL SUKHABHAI VADIYA
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Appearance:
MR HS MUNSHAW(495) for the Applicant(s) No. 1,2
for the Opponent(s) No. 1,1.1,1.2,1.3,1.4
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                           Date : 28/06/2021

                            ORAL ORDER

Heard learned advocate Mr.Hemant Munshaw for the petitioner.

2. This Civil Revision Application under Section 115 of the Code of the Civil Procedure, 1908, is directed against order dated 15.2.2021 passed by the learned 5 th Additional Senior Civil Judge, Gandhinagar, below Exhibit 8 in Regular Civil Suit No.151 of 2017, whereby learned Judge below dismissed the said application of the petitioner- original defendant filed under Order VII Rule 11, CPC for rejection of the plaint.

3. In application Exhibit 8, three grounds were broadly elaborated for rejection of the plaint. First was that the suit was barred by principle of res judicated. In support of this ground, certain proceedings in the nature of Writ Petition (PIL) No.98 of 2015 and certain decision of the Supreme Court were referred to to emphasis that in view of the principles laid down in those Public Interest Petitions before this Court and the Appellate Court, the suit was not maintainable, looking to the nature of relief prayed for therein. The second ground was that the

C/CRA/159/2021 ORDER DATED: 28/06/2021

plaintiff did not disclose the cause of action. Thirdly, it was contended that since notice under Section 487 of the Gujarat Provincial Municipal Corporations Act, 1949 was not served on the defendant No.1 -Corporation, the plaint was liable to be rejected in exercise of powers under Order VII Rule 11, CPC.

3.1 In order to appreciate the contentions about the prayer for rejection of the plaint, details of the averments in the Regular Civil Suit instituted by the plaintiff may be looked into. The suit was for declaration and permanent injunction. The permanent injunction was sought to restrain the defendant and their agents and servants demolishing the construction raised in the plot area of the suit property.

3.2 The plaintiff claimed power of attorney holder of deceased Amrutbhai Sukhabhai Vadiya and stated that he was entitled to deal and administer the suit property which was Plot No.1336/2 admeasuring 196 and 87 square meters in Sector 7/D in Gandhinagar Township owned and possessed by the plaintiff. This property was allotted to said deceased Amrutbhai by District Collector on 30.3.1992. It was stated that on 28.11.1998 the said owner and his heirs executed power of attorney in favor of the plaintiff. It was further averred that within the boundary of the plot further in the margin area certain construction was raised. The said construction was regularized by Gandhinagar Urban Development Authority on 21.9.2013 upon payment of penalty of Rs.12,000/- which was paid by the plaintiff. It was stated that further construction was made. It was stated that neighbour of the plaintiff complained to the authorities and certain writings were got executed from the plaintiff in the nature of undertaking for removal of the said construction. The plaintiff was made to execute such undertaking in the office of

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defendant which stated that before 31.10.2017, he would remove the construction.

3.3 The plaintiff stated that in Gandhinagar Township area, illegal construction are raised but the authorities have not taken any action. However, the authorities used to enter in correspondences with the plaintiff regarding the construction. Responding to the same, the plaintiff sent notice dated 10.10.2017 through his advocate. It is stated that the authorities are bent upon to demolish the construction. It was averred that if the plaintiff waits to receive the response of the authorities serious prejudice may cause to him if the construction is in the meantime razed to the ground. By stating such facts and premise, the suit was instituted.

3.4 The cause of action was pleaded in paragraph No.5 of the plaint reiterating that on 12.9.2013 certain construction was regularized by Gandhinagar Urban Development Authority by recovering the fine. The cause of action to institute the suit, it was stated, arose when the neighbours made written complaints to the authorities and authorities sent notice and since they executed writings in the nature of undertaking from plaintiff to remove the construction. It was lastly on 1.8.2017 the plaintiff was made to execute undertaking on the stamp paper and was made committed to remove the construction. It was pleaded that the said undertaking was against the law and contrary to the rights exercised by plaintiff for regularizing the construction. It was stated that accordingly the cause of action has arisen.

4. Learned advocate for the petitioner reiterated the grounds raised in the application Exhibit 8 for rejection of plaint. He however harped on the aspect that notice under Section 487 of the Gujarat Provincial Municipal Corporations Act was not

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issued, therefore due to such defect in law, the plaint ought to have been rejected by the Court below.

5. Dealing with however all the three plans of contentions raised seeking rejection of the plaint, it is trite principle that while considering the aspect that plaint is liable to be rejected under clause of Order VII, CPC the total averments in the plaint should be considered, the plaint is to be read as whole and by considering the plaint averments in that plaint as it is, to be ascertained whether any statement in the plaint renders the suit barred by law or the plaint become liable to be rejected for any of the grounds mentioned in the Order VII Rule 11, CPC.

5.1 As far as the ground that in view of the principles laid down in the Public Interest Litigation, the suit was not maintainable, it is to be noted that the plaint does not contain any such averments about the Public Interest Litigation. It is not open to the Court to travel beyond the averments in the plaint for rejecting the applicability of Order VII Rule 11, CPC. The defence or contentions raised outside the plaint, even in application seeking rejection of plaint, cannot be taken into account. The second count about the plaint disclosing the cause of action is also lame.

5.2 As explained in Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) and Others, [(2020) 7 SCC 366] and several other decisions, "cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. The cause of action consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the relief claimed in the suit. Applying the concept of cause of action in the present case, cause of action itself arises in the events narrated and it

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could not be said that plaint does not discloses the cause of action or that the cause of action is illusionary. The cause of action is rather specifically pleaded, supported by every averments in the plaint. The total bundle of facts mentioned in the plaint do give rise to cause of action in the plaint. Therefore, the ground of absence of cause of action is also without any merit.

5.3 It was the third ground which was all the more emphasized by learned advocate for the petitioner mainly that before instituting the suit, the plaintiff did not serve notice under Section 487 of the Corporation Act. The said Section provides for filing of the suit. The said Section deals for protection of persons acting under this Act against suits. The Section 487 says that no suit shall be instituted against the Corporation or against the Commissioner, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution.

5.4 The proposition that absence of notice under aforesaid Section 487, would not be a ground to exercise powers under Section Order VII Rule 11, CPC, is a settled law in view of decision of this Court in Mahulbhai Bipinbhai Tamboli Vs. Akshaybhai R. Thkkar [2019 (2) G.L.H. 175]. The Court considered the very question to proceed to observe thus, "The above takes me now to consider whether the issue with regard to Section 487 of the Act, 1949 could have been raised for the purpose of getting the plaint rejected. Section 487 provides for filing of a suit in respect of an act or purported act to be done in pursuance of or in execution of the provisions of the Act. Necessarily, all the acts or intended acts of the Corporation must be lawful acts as permitted by the provisions of the Act. Such acts can never cover the ultra vires of illegal acts because no servants or officer has any power to

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commit or conduct action which is not permissible within the provisions of the Act."

5.5 Whether the act of Corporation or Officer can be regarded as having been done or having purported to be done in pursuance of the Act or not, and all such other incidental questions would be considered only upon leading of evidence. Without evidence led by the parties, the provisions by itself could not be employed to reject the plaint. In Mahulbhai Bipinbhai Tamboli (supra), the Court considered that the wording of Section 487 does not contemplate giving of notice to the Corporation if relief sought against the Corporation is for omission of the Corporation to perform its statutory duties.

5.6 As stated above, only if the appropriate evidence is led, the Court may be able to reach to appropriate conclusion as to whether the suit could be dismissed for want of prior notice. The dictum that Section 487 and its applicability will require leading of evidence is correct legal position enunciated, and this Court is in agreement therewith.

6. In view of the above reasons and discussions, the impugned order is eminently proper and legal, requiring no interference.

7. Therefore, the present Civil Revision Application is meritless. It is summarily dismissed.

(N.V.ANJARIA, J) Manshi