Rajasthan High Court - Jodhpur

Gaurishankar vs Arun Nagranjan on 27 January, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 61/2020

1. Gaurishankar S/o Ramdev, Aged About 64 Years, B/c Modi, R/o 4-D-6, Jai Narayan Vyas Colony, Bikaner, Rajasthan.

2. Dharmendra Arora S/o Gaurishankar, Aged About 36 Years, B/c Modi, R/o 4-D-6, Jai Narayan Vyas Colony, Bikaner, Rajasthan.

3. Rajendra Arora S/o Gaurishankar, Aged About 38 Years, B/c Modi, R/o 4-D-6, Jai Narayan Vyas Colony, Bikaner, Rajasthan.

----Petitioners Versus

1. Arun Nagranjan S/o C.m. Nagranjan, B/c Nagranjan, R/o C-84, Sadul Ganj, Bikaner.

2. Manish Suthar S/o Chunnilal, B/c Suthar, R/o C-82, Sadul Ganj, Bikaner

3. Manoj Sipani S/o Manakchand, B/c Sipani, R/o C-92, Sadul Ganj, Bikaner.

4. Dr. Chandra Kumar Chahar S/o Shyam Singh, B/c Chahar, R/o C-80, Sadul Ganj, Bikaner.

5. M/s Ayushman Heart Care Centre, C-69A, Sadul Ganj, Bikaner Through Partner Smt. Durga Swami R/o Peepli Chawk, Nokha At Present R/o A-137, Sadul Ganj, Bikaner.

6. Smt. Durga Swami W/o Babulal, B/c Swami, R/o A-137, Sadul Ganj, Bikaner.

7. Commissioner, Urban Improvement Trust, Bikaner.

8. State Of Rajasthan, Through District Collector, Bikaner.

----Respondents

For Petitioner(s) : Mr. Nishank Madhan.

For Respondent(s)        :



            HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Order

27/01/2021

This revision petition is directed against the order dated

07.08.2020 passed by the trial court, whereby the application filed

by the petitioners under Order VII, Rule 11 CPC, has been

rejected.

(2 of 6) [CR-61/2020]

The respondents-plaintiffs filed the suit under Order I, Rule 8

CPC, inter alia, making several allegations and claiming the

following reliefs:-

"vr% nkok is'k dj vtZ gS fd nkok cgd oknhx.k f[kykQ izfroknhx.k bl izdkj ls lkfnj fMØh Qjek;k tkos fd LFkkbZ fu"ks/kkKk cgd oknhx.k f[kykQ izfroknhx.k bl vej dh lkfnj QjekbZ tkos fd okn i= ds iSjk la ,d esa fy[ks vkls ikls dh tk;nkn esa izfroknhx.k la 1 rk 5 vLirky dk fuekZ.k o vU; dksbZ O;kikfjd ifjlj uk [kksys uk [kksyus dh vlQy dksf'k'k djsA izfroknh la 6 o 7 dks tfj, LFkkbZ fu"ks/kkKk ikcan fd;k tkos fd os izfroknh la 1 rk 5 dks oknxzLr vkoklh; LFky ij vLirky [kksyus o lapkfyr djus dh vuqefr ugha nsosA uk gh v.Mjxzkm.M cukos fodYi esa ;fn cuk fy;k gS rks mls can fd;k tkosA uk gh ckWydksuh fudkys fodYi esa ;fn cuk yh gS rks mls rksMk tkosa rFkk tks Hkh voS/k fuekZ.k fd;k x;k gS] mls vfoyEc izfroknh la 1 rk 5 ds [kpsZ ij rksMk tkosA esUMsVªh batD'ku cgd oknhx.k f[kykQ izfroknhx.k bl vej dk tkjh fd;k tkos fd nkok djus ds ckn nkSjkus nkok ;fn izfroknh la 1 rk 5 us izfroknh la 6 o 7 dh lg ls vuf/kd`r :i ls vLirky dk fuekZ.k dj fy;k o lapkfyr dj fy;k rks mls izfroknhx.k ds [kpsZ ij rksM+k tkosA uxj fodkl U;kl us izfroknh la ,d rk rhu dks fu;ekuqlkj okf.kfT;d ifjlj fuekZ.k dh vuqefr dkuwu ugha ns j[kh gS] nks;kse okf.kfT;d ifjlj fuekZ.k dh vuqefr uxj fodkl U;kl ugha ns ldrkA blfy;s orZeku esa tks okf.kfT;d voS/k fuekZ.k dk;Z gks jgk gS o gks j[kk gS] ml iwjs ds iwjs dks izfroknhx.k ds [kpsZ ij rqM+ok;k tkosA izfroknh la 01 rk 05 uxj fodkl U;kl dh fcuk btktr rkehj ds dksbZ dk;Z uk gh djokosA uxj fodkl U;kl dks fgnk;r nh tkos fd oks izfroknh la 01 rk 05 dks O;[email protected] [kksyus [email protected] djus dh bZtktr rkehj ugha nsosA [kpkZ eqdnek ftEes izfroknhx.k j[kk tkosA U;k;fgr esa vU; dksbZ eqQhn vkns'k tks oknhx.k ds gd esa gks fnyk;k tkosA U;k;fgr esa oknhx.k dk nkok fMØh Qjek;k tkosA"

The petitioners filed the application under Order VII, Rule 11

CPC with the following averments:-

"mijksDr vuoku eqdnek oknhx.k dh vksj ls 01 R 8 CPC ds rgr is'k fd;k gSA oknhx.k us tks vuqrks"k pkgk gS] oksg uxj fodkl U;kl ls izkIr dj ldrk gS] tgka vU; dkuwuh izko/kku gks ogk bl U;k;ky; dks lquus dk {ks=kf/kdkj ugha gSaA nkok Barred by Law gksus ls fjtsDV fd;k tkosA"

The trial court after hearing the parties, came to the

conclusion that the trial court has the jurisdiction to hear the

matter and that the defendants have failed to point out any

provision in law, which would bar the jurisdiction of the civil court

and, consequently, rejected the application.

(3 of 6) [CR-61/2020]

Learned counsel for the petitioners attempted to make

submissions that as the allegations in the plaint pertained to the

violation of the permission for construction granted by the Urban

Improvement Trust, the plaintiffs had efficacious remedy under

various provisions under the Urban Improvement Act, 1959 ('the

Act') and, therefore, the suit was not barred.

Reliance was placed on provisions of Sections 90, 90-A, 91

and 91-A of the Act to indicate the available remedies. Further

reference was made to provisions of Section 97 of the Act to

indicate that the jurisdiction of the civil court was barred and it

was prayed that the order impugned passed by the trial court be

set aside and the plaint be rejected.

Reliance was also placed on judgment in Rohit Singh v.

Vishambhar Dayal Shukla : 2014(1) DNJ (Raj.) 398; Jaidev Singh

Shekhawat v. State of Raj. & Ors.: SBCW No. 10577/2020,

decided on 20.10.2020 and Sitaram Sakharam Keluskar v.

Dayaram Gulzarilal Deval : 2014(2) CCC 125 (Bombay).

I have considered the submissions made by learned counsel

for the petitioners and have perused the material available on

record.

A bare perusal of the plaint indicates that it was filed under

provisions of Order I, Rule 8 CPC and contains various allegations

against the defendants, and the failure on part of the authorities

to take action against the defendants No. 1 to 5. In the relief

clause as quoted hereinbefore, it was claimed that the defendants

No. 1 to 5 be restrained from constructing/opening the

commercial premises/hospital and the defendants No. 6 and 7 i.e.

UIT and State be directed by way of permanent injunction not to

(4 of 6) [CR-61/2020]

grant permission to the defendant Nos. 1 to 5 for opening the

hospital and operate the same. Further prayers were made

seeking demolition of various parts of the construction.

The application filed by the petitioners under Order VII, Rule

11 CPC as quoted hereinbefore was most cursory and did not

contain any basis for seeking dismissal of the plaint at the

threshold under provisions of Order VII, Rule 11(d) CPC much less

to indicate as to under which provision of law, the plaint/suit was

barred.

The trial court, as noticed hereinbefore by observing that the

petitioners having failed to indicate the provision under which the

plaint was barred, rejected the application. The various reliefs,

which have been claimed includes a permanent injunction against

the respondents No. 6 and 7 from granting the permission. The

various provisions pointed out by the counsel for the petitioners

i.e. Sections 90, 90-A, 91 and 91-A of the Act, don't deal with the

said aspect, wherein a party can seek injunction from the

authorities themselves from granting the permission and as such it

cannot be said that the plaintiffs had any efficacious remedy as

sought to be alleged in the application under Order VII, Rule 11

CPC, though cursory.

The submissions made by learned counsel for the petitioners

based on provisions of Section 97 of the Act to claim that the suit

is barred, reads as under:-

"97. Indemnity of Trust, etc. - No suit, prosecution or other legal proceedings shall be maintainable against the Trust, or any Trustee, or any officer or servant of the Trust, or any person acting under the direction of the Trust or the Chairman, or any officer or servant of the Trust in respect of anything lawfully

(5 of 6) [CR-61/2020]

and in good faith and with due care and attention done under this Act."

A perusal of the provision would indicate that the same

pertains to the indemnity of the Trust and its officers in case they

take any action lawfully and in good faith, qua the said aspect i.e.

the suit against the authorities, the same has been barred.

The provision in no manner bars suits of all nature against

the Trust, as claimed by the petitioners. As such the reliance

placed on the provisions of Section 97 of the Act is wholly

misplaced.

So far as the judgment in the case of Rohit Singh (supra) is

concerned, the said case pertained to suit filed in relation to

jurisdiction of the Jaipur Development Authority and it was found

that the provisions of Section 99 of the Jaipur Development