Mukesh Chandel vs State Of Rajasthan ...
2023 Latest Caselaw 5445 Raj

[2023:RJ-JD:24274]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 30/2023

Mukesh Chandel S/o Shri Ambalal Ji Chandel, Aged About 50 Years, R/o Vaneshwar Mahadev Road, Banswara. (Raj.)

----Petitioner Versus

1. State Of Rajasthan, Through District Collector, Banswara.

(Raj.)

2. Municipal Council, Banswara, Through Its Commissioner Municipal Council Permises, Banswara. (Raj.)

3. Kailash Chandra S/o Bhagwan Sahai Jangid, R/o Ratlam Road, Banswara. (Raj.)

4. Harish S/o Shri Chand, Working As Manager Of Harmony Garden, Nearby Tourist Place, Ratlam Road, Banswara. (Raj.)

----Respondents

For Petitioner(s) : Mr. Manas Ranchhor Khatri

HON'BLE MS. JUSTICE REKHA BORANA

Order

01/08/2023

1. The present revision petition has been preferred against the

order dated 05.12.2022 passed by the Additional District Judge,

Banswara in Civil Suit No.23/2021 (CIS No.23/2021) wherein the

application under Order 7 Rule 11 of the Code of Civil Procedure

as preferred by defendant No.1 has been rejected.

2. It is relevant to note here that application under Order 7

Rule 11, CPC preferred by defendant No.1 was, at the first

instance, allowed vide order dated 16.03.2022 and as a

consequence thereof, the suit as preferred by the plaintiffs was

dismissed.

[2023:RJ-JD:24274] (2 of 6) [CR-30/2023]

3. The appeal, being S.B. Civil First Appeal No.300/2022,

preferred against the said order was allowed vide order dated

25.08.2022 and the matter was remanded back to the Court

below to decide the application afresh while observing that prima

facie, a cause of action did seem to accrue to the plaintiffs. The

Court further found that the other two grounds as raised by

defendant No.1 in the application under Order 7 Rule 11, CPC

were not taken into consideration by the Court below and

therefore, the matter was remanded back to the Court below with

a direction to decide the said two issues too. It is the order dated

05.12.2022 passed by the Court below after remand, which is

under challenge in the present revision petition.

4. The first ground raised is that the procedure as prescribed

under Order 1 Rule 8 of the Code of Civil Procedure has not been

followed which makes the suit not maintainable. It has been

submitted that no leave in terms of Section 91 of the Code of Civil

Procedure has been granted by the Court to institute the present

representative suit and therefore, in absence of any leave, the suit

was not maintainable and hence was barred by law.

5. The second ground raised is that the notice under Section 80

(2) of the Code of Civil Procedure as well as under Section 304 of

the Rajasthan Municipalities Act, 2009 (for short hereinafter

referred to as, 'the Act of 2009') had not been served and

therefore also, the suit was not maintainable.

6. The Court below, while relying upon the judgment of Hon'ble

Gujarat High Court in AIR 1974 Gujarat 120 Kadarbhai

Mahornedbhai & Anr. vs. Haribhai Ranchhodbhai Desai &

Anr., arrived to a finding that where the plaintiffs are affected

[2023:RJ-JD:24274] (3 of 6) [CR-30/2023]

directly or indirectly by public nuisance or an illegal action of any

person, the leave in terms of Section 91 of the Code of Civil

Procedure is not essential.

The Court further found that the plaintiffs had specifically

pleaded that a special damage was likely to be caused to them if

the nuisance as alleged is not removed/restrained and hence, a

cause of action to file the present suit did accrue to them. So far

as the ground of notice under Section 80, CPC having not been

served is concerned, the Court found that an application under

Order 80 Rule 2 of the Code of Civil Procedure and Section 304

Part III of the Act of 2009 had very well been filed along with the

suit and further that the notice under Section 304 of the Act of

2009 is not essential wherein a relief of injunction has been

prayed for.

7. Learned counsel for the petitioner submitted that the leave

as prescribed under Section 91, CPC is a mandate and in absence

of the said leave being granted, the suit ipso facto was not

maintainable and hence was barred by law. He further submitted

that if the suit itself cannot be entertained, the same would

specifically be termed to be barred by law and hence, liable to be

rejected in terms of Order 7 Rule 11, CPC. Counsel further urged

that the Court ought to have returned the plaint for presentation

after complying with the requirements of service of notice under

Sub Section (1) of Section 80, CPC. In support of his submission,

counsel relied upon a judgment of this Court passed in 1983 RLR

336; Union of India (UOI) & Ors. vs. Satya Pal Mehta & Ors.

8. Heard learned counsel for the petitioner and perused the

material available on record.

[2023:RJ-JD:24274] (4 of 6) [CR-30/2023]

9. So far as the leave in terms of Section 91, CPC and

procedure in terms of Order 1 Rule 8, CPC is concerned, it is true

that a representative character is imparted to the suit only after

the requisite procedure has been complied with but it would be

erroneous to hold that no suit has been instituted until permission

has been granted by the Court. As held by the Division Bench of

the Calcutta High Court in the case of Mukh Lal Singh vs. Jagdo

Tewari ILR; (1908) Cal 1021, where the plaintiffs had asked for

permission in the plaint though there was no express order

granting it, it should be presumed that it had been granted

because the plaint had been admitted and registered. In

Mukaramdas vs. Chhagan Kisan; AIR 1959 Bom 491, the

Court observed that there need not be a formal order on record

for permission to sue in a representative capacity under Order 1

Rule 8, CPC. The permission could be inferred where the plaintiffs'

prayer that they should be allowed to sue in a representative

capacity under Order 1 Rule 8, CPC was granted by the Court. It

was also held that permission under Order 1 Rule 8, CPC could be

granted even at the appellate stage. In Chatrabhoj Keshavji

vs. Ghanshyamlalji; AIR 1952 Kutch 92, it was ruled that if a

representative suit was brought but for one reason or another, the

requisite permission was not obtained or granted, it could be

granted by the appellate Court. In Sri Ram Krishna Mission

and Ors. vs. Paramanand and Ors.; AIR 1977 ALL 421, it was

held that when a Court issues a notice on an application for leave

under Order 1 Rule 8, CPC made after the presentation of the suit,

it should be inferred that the Court has by implication granted a

conditional permission. Further, while interpreting the provision in

[2023:RJ-JD:24274] (5 of 6) [CR-30/2023]

the case of Devi Singh and Ors. vs. Chairman, Managing

Committee, D.A.V. Public School and Ors.; 2010 (90) AIC

685, the Court held as under:

"11. Having said so, in case of non-compliance with the provisions of Order 1 Rule 8 CPC the suit itself cannot be dismissed. At best, the suit can be treated to be a suit filed by the parties in their individual or personal capacity. It may not be treated as a representative suit but it cannot be said that the suit itself has to be dismissed; To this extent the findings of both the Courts below are wrong. Therefore, question No. 2 is also decided in favour of the appellants."

10. Coming on the facts of the present matter, a perusal of the

record shows that an application under Order 1 Rule 8 read with

Section 91 of the Code of Civil Procedure was filed by the plaintiffs

at the very instance along with the plaint. Even a reply to the said

application was preferred by the defendant. Meanwhile, before the

said application could be decided, an application under Order 7

Rule 11, CPC was preferred by defendant No.1 and as observed

above, the same was allowed and the suit itself was dismissed.

Therefore, it is evident that firstly, no occasion arose for the

Court to decide the application under Order 1 Rule 8, CPC.

Secondly, the leave having not been granted before issuance of

the notices can, at the most, be said to be a procedural lacuna

which could very well be cured at a later stage. Moreso, when the

application remains pending before the Court till date. But the

same can, by no means, be a ground to reject the plaint under

Order 7 Rule 11, CPC.

11. So far as the ground of non-service of notice under Section

304 of the Act of 2009 and under Section 80(2), CPC is concerned,

firstly, as rightly observed by the Court below, the present was a

[2023:RJ-JD:24274] (6 of 6) [CR-30/2023]

simplicitor suit for injunction and therefore, no notice in terms of

Section 304 of the Act of 2009 was mandatory. Secondly, the

objection of non-service of notice has not been taken by the

Municipal Authority/Authority but by the private defendants,

hence, the same cannot be tenable. As held in the judgment of

Mohanlal vs. Jagdish Prasad Soni & Ors., 2020 (1) RLW 674

(Raj.), the right/obligation to notice can be waived by the party

for whose benefit, it has been provided. If no objection is taken

by the State/Municipal Authority of non-service of the notice, the

same shall be deemed to have been waived by the said authority.

12. In view of the above observations, the plaint could not have

been rejected under Order 7 Rule 11, CPC on any of the grounds

as raised by the defendants and therefore, the order impugned

does not deserve any interference.

13 However, as the application under Order 1 Rule 8 read with

Section 91, CPC remains pending before the Court below, it is

expected that the Court below would now decide the same at the

first instance without proceeding on with the further proceedings

in the suit.

14. With the above observations, the present revision petition is

disposed of.

15. Stay petition also stands disposed of.

(REKHA BORANA),J

378-KashishS/-

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