Rajasthan High Court - Jodhpur
Dr. Mahesh Dadhich vs Uma Devi And Anr on 31 January, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
[2025:RJ-JD:4926]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 210/2016
Dr. Mahesh Dadhich S/o Chhotu Lal Dadhich By Caste Dadhich,
Resident Of Near Gogagate Circle Bikaner
----Appellant
Versus
1. Uma Devi W/o Shri Gaurishanker, By Caste Modi,
Resident Of Near Tulsi Circle, Street Near Whirlpool
Showroom Bikaner
2. Municipal Corporation, Bikaner Through The
Commissioner, Municipal Board, Bikaner
----Respondents
For Appellant(s) : Mr. Sanjeet Purohit
Mr. Mukul Krishna Vyas
For Respondent(s) : Mr. Harish Purohit
Mr. Vikash Choudhary
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment
Reserved on :- 15.01.2025
Pronounced on :- 31.01.2025
1. The plaintiff - appellant brought Civil Suit No.243/2015
against the respondents stating therein that defendant - Uma
Devi (respondent No.1 herein) had purchased a residential plot
nearby the house of the plaintiff, which is situated on 6 feet wide
lane. Defendant - Uma Devi started construction of a commercial
complex on her residential plot, main entrance whereof was
towards east, on the main road of Goga Gate Circle and the
backside gate was on the lane on which plaintiff's gate was there.
The defendant projected a balcony of 3 feet on the 6 feet lane
causing security threat and disturbing privacy of the plaintiff -
appellant.
2. The defendant was constructing the underground without
permission of the competent authority. The plaintiff requested
defendant No.2 - Municipal Corporation, Bikaner to stop the
[2025:RJ-JD:4926] (2 of 5) [CSA-210/2016]
construction, but respondent No.2 did not pay any heed, hence
suit for injunction was filed.
3. Defendant No.1 in her separate written statement stated that
she had raised construction of residential house 6 to 7 years back,
but due to recession in the market could not complete the house.
The construction was raised with the permission of the municipal
corporation as per the requirement of the Municipal Rules. For the
present, defendant was just getting repairing and plaster work
done, as per the approved map.
4. Defendant No.2 - Municipal Corporation in its written
statement stated that defendant No.1 had already submitted her
application for permission to construct multistory building on
27.06.2006 and on 18.08.2006, permission was granted,
whereunder construction of balcony was also permitted. On
physical verification, it did not appear that construction was for
commercial activity. Moreover, on the complaint of the plaintiff,
notice was issued to defendant No.1 and proceedings were
pending. Thereafter, the plaintiff filed further application that
construction was made after the time granted for construction,
hence, by necessary implication, the permission stood cancelled.
5. Ultimately, on consideration of evidence brought on record,
the suit was decreed on 29.04.2016. The judgment of the trial
judge was challenged in Appeal Decree No.26/2016 Uma Devi
Vs. Dr. Mahesh Dadhich & Anr. The appellate court by the
impugned judgment and decree dated 07.09.2016 allowed the
appeal and set aside the trial court's judgment and decree.
[2025:RJ-JD:4926] (3 of 5) [CSA-210/2016]
6. Learned first appellate court was of the view that since the
suit was itself barred under Section 99 of the Jaipur Development
Act, as such the plaint was itself fit to be rejected under Order VII
Rule 11 (d) of the CPC. Accordingly, held the judgment of trial
judge as without jurisdiction on the subject matter of the suit.
7. Learned counsel for the appellant submits that neither in the
facts and circumstance of the case, the provisions of Section 99 of
Jaipur Development Authority Act, nor the judgment of this Court
relied upon by the appellate court in Rohit Singh Vs.
Vishambhar Dayal Shukla reported in DNJ2014(1) Rajasthan
398 was applicable; rather municipal authorities were competent
to take decision on the grant of permission to construct the type
of building requested for and the remedy was there under the
municipal Act itself.
8. The substantial question of law involved is whether the
appellate court has acted with material illegality in reversing the
finding of the trial judge on flimsy ground.
9. Learned counsel for the respondent contends that the
remedy was there under the municipal Act for redressal of
grievance of the plaintiff and in fact the matter was pending with
the municipality. Therefore, filing of the suit was just with
malicious intention to harass the respondent. Respondent No.1
had already taken permission of the competent authority under
the Municipal Act and the Municipal Corporation has also in its
written statement admitted this fact. If the construction was made
beyond the time granted for construction, it would be the
competent authority, who may impose adequate fine etc. and the
[2025:RJ-JD:4926] (4 of 5) [CSA-210/2016]
plaintiff cannot be allowed to obstruct the work of respondent
No.1.
10. To decide the aforesaid substantial question of law, the
provision of Section 99 of the Jaipur Development Act is being
reproduced below:-
"99. Bar of Jurisdiction of civil court:-
(1) Save as otherwise provided in this Act, no civil
court shall take cognizance of any matter which is
required to be or may be decided by the Authority,
Executive committee, Jaipur Development
Commissioner, Functional Board, any body thereof,
the Tribunal or the State Government, under this
Act
(2) Save as otherwise expressly provided in this
Act, an order passed or a direction given by the
State Government to the Authority or an order
passed or notice issued by the Authority under this
Act shall be final and shall not be questioned in any
suit or other legal proceeding"
11. Evidently, the provision of Section 99 of the Jaipur
Development Act aforesaid was not attracted in the facts and
circumstances of the present case as jurisdiction of the civil court
is barred in the matter cognizable by the authority under the Act.
Section 304 of Rajasthan Municipal Act has been relied upon by
the appellant which is being reproduced below:-
"304. Suits against Municipality or its
officers:-
(1) No suit shall be instituted against a Municipality
or against the Chairperson member, officer or
servant of Municipality or against any person acting
under the direction of any of them in respect of an
act done or purporting to have been done in its or
his official capacity, until the expiration of two
months next after notice thereof in writing has
been, in the case of a Municipality, officer, servant
or person delivered to him or left at his office or
place or abode explicitly stating the cause of action,
[2025:RJ-JD:4926] (5 of 5) [CSA-210/2016]
the nature of the relief sought, the amount of
compensation claimed and the name and lace of
abode of the intending plaintiff, and the plaint shall
contain a statement that such notice has been so
delivered or let.
(2) No action such as is described in sub-section (1)
shall, unless it is an action for the recovery or
immovable property or for declaration of title
thereto, be commenced otherwise than within six
months next after the accrual of the causes of
action
(3) Nothing in sub-Section (1) shall be construed to
apply to a suit wherein the only relief claimed is an
injunction of which the object would be defeated by
giving of the notice or the postponement of the
commencement of the suit or proceeding."
12. The provision of Section 304 only provides for requirement of
notice prior to the institution of the suit and expiry of the two
months period from the date of notice when the action of the
municipality authorities was under challenge. Here action of the
private respondent is challenged.
13. Evidently the first appellate court has placed reliance on
wrong provisions of law and the judgment which was rendered
in quite different facts and circumstances of the case, therefore,
the impugned judgment of the first appellate court stands hereby
set aside and the matter is remitted back with direction to decide
the appeal according to law.
14. Accordingly, this Civil Second Appeal stands allowed.
(BIRENDRA KUMAR),J
nitin/-
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