The Municipal Council, Pali vs Ram Chandra
2021 Latest Caselaw 6494 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 66/2018

The Municipal Council, Pali Through Commissioner, Municipal Council, Pali.

----Appellant Versus Ram Chandra S/o Shiv Narain Kumawat, R/o 48, Tilak Nagar, Pali Rajasthan

----Respondent

For Appellant(s) : Mr. Yashwant Mehta For Respondent(s) : Mr. Anirudh Purohit

HON'BLE MR. JUSTICE ARUN BHANSALI Judgment

04/03/2021

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.

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

(2 of 4) [CSA-66/2018]

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.

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:

"18- izfroknh i{k ds }kjk fookfnr Hkw[k.M ds lEcU/k esa ikfjr fd;s x;s vkns"k fnukad 07-11-08 dh i=koyh dh vknsf"kdkvksa dh izekf.kr izfrfyfi;kW izLrqr dh xbZ gS gkykafd mDr nLrkost dks mHk; i{k dh vksj ls lk{; esa iznf"kZr ugha djok;k x;k gS ijUrq i=koyh esa layXu gksus ds dkj.k geus mudk xgurk ls voyksdu fd;kA mDr vknsf"kdkvksa esa fnukad 07-06-89 ls vkns"k fnukad 07-11-08 ikfjr djus rd dh gSA ftlesa oknh dks /kkjk 203 uxj ikfydk vf/kfu;e dk uksfVl nsus ds i"pkr~ oknh ds }kjk tokc is"k djuk rFkk i=koyh cgl gsrq yafcr jguk n"kkZ;k gqvk gS o vUr esa fnukad 07-11- 08 dks cgl lqu dj mDr vfrØe.k gVkus dk vkns"k ikfjr fd;k x;k gSA mDr vkns"k izn"kZ 5 ikfjr djus ls iwoZ oknh jkepUnz dks lk{; is"k djus dk volj nsus dk mDr vknsf"kdkvksa esa dksbZ mYys[k ugha gSA ;gh ugha oju fnukad 15-03-2008 dh izfroknh dh vknsf"kdkvksa esa rks oknh jkepUnz dk tokc cUn dj nsuk n"kkZ;k gqvk gSA ,slh fLFkfr esa mDr vknsf"kdk fnukad 15-03-2008 ds vuqlkj rks jkepUnz dk tokc cUn dj mDr vkns"k fnukad 07-11-08 izn"kZ 5 ikfjr fd;k x;k gSA ,slh fLFkfr esa oknh dks mDr vkns"k izn"kZ 5 fnukad 07-11-08 ikfjr djus ls iwoZ viuk i{k j[kus dk i;kZIr volj ugha fn;k x;k gSA ,slh fLFkfr esa izfroknh dk mDr vkns"k fnukad 07-11-08 izn"kZ 5 izkd`frd U;k; ds fl)kUrksa dh ikyuk ugha fd;s tkus ds dkj.k fof/k dh lE;d izfØ;k dh Js.kh esa ugha vkrk gSA vr% mDr vkns"k cus jgus ;ksX; ugha gSA"

And based on its finding, passed the following decree:

"26- okn oknh fo:) izfroknh fMØh fd;k tkdj vkns"k fn;k tkrk gS fd izfroknh] fryd uxj] ikyh ds Hkw[k.M la[;k 48 ij fd;s x;s fuekZ.k ds lEcU/k esa oknh dks fof/k vuqlkj lquokbZ dk iw.kZ volj fn;s fcuk rFkk fof/k dh lE;d izfØ;k viuk;s fcuk fdlh izdkj dh rksM+QksM+ ugha djsaA [kpkZ i{kdkjku viuk&viuk ogu djsxsaA rn~uqlkj fMØh ipkZ rS;kj gksA"

(3 of 4) [CSA-66/2018]

Feeling aggrieved, the appellant filed first appeal.

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.

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.

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.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

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

(4 of 4) [CSA-66/2018]

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.

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.

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.

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.

Consequently, there is no substance in the appeal, the same

is, therefore, dismissed.

(ARUN BHANSALI),J 12-Sachin/-

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