THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Revisional Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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C.R.P. No. 02 of 2023
1. The District Collector,
South Sikkim, Namchi.
2. The Principal Chief Town Planner,
Urban Development Department,
Government of Sikkim, Jorethang,
South Sikkim.
3. The Municipal Executive Officer,
NMC Namchi, South Sikkim
..... Revisionists
Versus
Raj Balam Prasad,
Aged about 47 years,
S/o late Bal Bachan Prasad,
R/o Namchi Bazar,
South Sikkim-737 126.
.....Respondent
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Application for Revision under Section 115 read with
151 of the Code of Civil Procedure, 1908 and Article 227 of
the Constitution of India.
(Impugned Order dated 19.12.2022 passed by the Learned Civil Judge
at Namchi, South Sikkim in Title Suit No. 11 of 2021 (Raj Balam
Prasad) vs. The District Collector & Ors.
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Appearance:
Dr. Doma T. Bhutia, Additional Advocate General with
Mr. S.K. Chettri, Government Advocate and Mr. Shakil
Raj Karki, Assistant Government Advocate for the
Revisionists.
Mr. N. Rai, Senior Advocate with Ms. Tara Devi
Chettri, Advocate for the Respondent.
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Date of hearing : 25.09.2023
Date of Judgment : 10.10.2023
2
C.R.P. No. 02 of 2023
District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The respondent, Raj Balam Prasad (plaintiff) filed
Title Suit No. 11 of 2021 against the revisionist nos. 1 to 3
(defendants). It was the respondent's case that plot no.42
with an area of 0.0200 hectares (suit land) was provided to
his father by late Zigmee Wangyal Lassopa in the year 1985
and after the demise of his father the suit land came to his
possession with the consent of Jolly Wangyal Lassopa, son
of late Zigmee Wangyal Lassopa. The respondent
constructed two storied RCC structured in the suit land
with the consent of Jolly Wangyal Lassopa who is the title
holder of the suit land. The two storied RCC structure is in
the respondent's possession and occupation but there is no
change in ownership and title of the suit land as it is a
Bhutia/Lepcha land. When the respondent constructed the
two storied RCC structure no one including the
Government objected to it and the Power Department in
fact provided electricity supply. During 2008 the Town
Planner blamed the respondent that he had constructed
the two storied RCC structure on the suit land by
encroaching State Government drain from west side of the
suit land. The respondent requested the Town Planner to
employ an Amin to verify the status of the suit land but it 3 C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
was not considered. During 2016 the Town Planner again
raised the same allegation. The Town Planner also objected
on the ground that the RCC structure was built without
any approved blue print plan. The respondent made
applications for regularization of the encroached portion, if
any, but to no avail. On 10.09.2021 the revisionist no.2
(defendant no.2) i.e. the Principal Chief Town Planner
issued a demolition notice to demolish the structure within
15 days of the issuance of the demolition notice. In such
circumstances, the respondent approached the Court of the
learned Civil Judge seeking the following substantial
reliefs:
"(a) A decree with declaration and confirmation that the plaintiff has not encroached any portion of Government land as alleged by the defendants while having his RCC structure on plot no.42.
(b) A decree with the declaration that the demolition order dated 10.09.2021 providing 15 days time to the plaintiff is unjust, illegal and causing harassment to the plaintiff and hence to be rejected." (Sic)
2. During the trial the revisionists filed a petition
under Order 7 Rule 11(d), sections 9 and 151 of the Code of
Civil Procedure, 1908 (CPC) for rejection of the plaint. The
petition was filed on the following grounds:-
(i) The jurisdiction of the Civil Court is barred by the Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985 (the Act of 1985).
4
C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
(ii) Section 9 of the CPC bars the filing of the plaint.
(iii) The plaint is also barred by Revenue Order No.1.
3. The petition under Order 7 Rule 11 (d) of the
CPC was heard by the learned Civil Judge and rejected.
During the hearing, as reflected in the impugned order, no
plea of limitation was raised by the revisionists and
therefore, not considered.
4. The learned Additional Advocate General for the
revisionists submitted that the suit is barred by Article 58
of the Limitation Act, 1963 as the right to sue first accrued
in favour of the respondent, as per paragraph 5 of the
plaint, in the year 2008 itself. The learned Additional
Advocate General also relied upon the demolition notice
dated 10.09.2021 which records the issuance of another
demolition notice on 11.03.2011. It is thus argued that if
this Court were to consider either of the two dates i.e. 2008
and 11.03.2011 the suit which was filed only in April, 2021
was grossly barred by time as the three year period of
limitation under Article 58 of the Limitation Act, 1963 had
already expired. On the objection raised by the learned
Senior Counsel for the respondent that the ground of
limitation was not taken either in the petition or during its
hearing, the learned Additional Advocate General relied
upon the judgment of this Court Shri Chabilal Khatiwada vs. 5 C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
Shri Durga Prasad Rai and Ors.1 to submit that Section 3 of
the Limitation Act, 1963 is pre-emptory and a duty is cast
upon the Court to take notice of this provision and give
effect to it even if not set out in the pleadings. She also
relied upon the judgment of the Supreme Court in Dahiben
vs. Arvindbhai Kalyanji Bhanusali (Gajra) & Ors.2.
5. The learned Additional Advocate General also
reiterated the arguments raised in the petition under Order
7 Rule 11 of the CPC.
6. Mr. N. Rai, learned Senior Counsel of the
respondent submitted that the plea of limitation had not
been taken either in the petition or during its hearing and
therefore, it cannot be said that the impugned order has
been passed by the learned Civil Judge in exercise of a
jurisdiction not vested in its law, or that she has failed to
exercise jurisdiction so vested or has acted in the exercise
of its jurisdiction illegally or with material irregularity. The
learned Senior Counsel also submitted that the petition
had been filed on the wrong notion that the Act of 1985
barred the respondent from approaching the Civil Court. It
was submitted that neither Revenue Order No.1 nor
Section 9 of the CPC bars or prevents the respondent from
approaching the Civil Court for the prayers as prayed for in
the plaint. The learned counsel relied upon the judgment of
1 2012 SCC OnLine SIKK 26 2 (2020) 7 SCC 366 6 C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
the Supreme Court in P.V. Guru Raj Reddy & Anr. vs. P.
Neeradha Reddy & Ors.3 and the judgment of this Court in
Smt. Shanti Subba & Ors. vs. Shri Jashang Subba4 to impress
upon this Court the power conferred under Order 7 Rule 11
of the CPC is of drastic nature and while exercising its
power only the averments in the plaint have to be read as a
whole and the stand of the revisionists in the written
statement or in the application for rejection of plaint is
wholly immaterial.
7. The law is well settled on the contours and the
mandate of Order 7 Rule 11 of the CPC as can be seen by
the pronouncement of the Supreme Court in the judgments
cited by the learned Counsel for the parties. It has been
held by the Supreme Court that it is a special remedy and
court is empowered to summarily dismiss a suit at the
threshold if it is satisfied that the action should be
terminated on any of the available grounds. It is the duty
of the court to determine whether the plaint discloses a
cause of action by scrutinizing the averments in the plaint,
read in conjunction with the documents relied upon. The
plaint must be read as a whole and it is not permissible to
cull out sentences and passages and read it in isolation.
Substance and not the form only are to be looked into. The
pleadings in the plaint, without addition or subtraction
3 (2015) 8 SCC 331 4 SLR (2020) SIKKIM 482 7 C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
have to be construed as it stands. If the allegations in the
plaint prima facie show a cause of action, court cannot
embark upon an inquiry whether the allegations are true in
fact. If on a meaningful reading thereof it is seen that the
suit is manifestly vexatious and without any merit, and
does not disclose the right to sue, the power under Order 7
Rule 11 of the CPC would be exercised at any stage of the
suit. The provision is mandatory in nature. The condition
precedent to the exercise of power under Order 7 Rule 11 of
the CPC is stringent. It is only if the averments in the plaint
ex-facie do not disclose a cause of action or on a reading
thereof the suit appears to be barred under any law the
plaint can be rejected. In all other situations, the claim will
have to be adjudicated in the course of the trial.
8. As held by the Supreme Court "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. It consists of a bundle of material facts, which
are necessary for the plaintiff to prove in order to entitle
him to the reliefs claimed in the suit.
9. Section 9 of the CPC merely provides that the
courts have jurisdiction to try all suits of civil nature except
those of which their cognizance is expressly or impliedly
barred. Read in isolation Section 9 does not bar or prevent 8 C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
the plaintiff from approaching the Civil Court for redressal
of his grievance as narrated in the plaint.
10. Revenue Order No.1 is an Old Law of Sikkim
protected under Article 371F (k) of the Constitution of
India. It provides that "...... no Bhutias and Lepchas are to
be allowed to sell, mortgage or sublet any of their land to
any person other than a Bhutia or a Lepcha without the
express sanction of the Darbar or officers empowered by the
Darbar in their behalf, whose order will be obtained by the
landlord concerned. If anyone disobeys he will be severely
punished." Revenue Order No.1 therefore, does not bar the
plaintiff from approaching the Civil Court to secure his
rights as a permissible user of plot no.42 and challenge the
demolition notice dated 10.09.2021. It was not the
respondent's case in the plaint that the Bhutia/Lepcha
land was sold, mortgaged or sublet to him. In fact the
respondent had categorically asserted that the ownership of
the suit land continues with the landlord.
11. Order 7 Rule 11 (d) of the CPC provides that the
plaint shall be rejected where the suit appears from the
statement and the plaint to be barred by any law. The
contention of the learned Additional Advocate General that
the Act of 1985 bars the respondent from approaching the
Civil Court is misplaced. The Act of 1985 provides for the
allotment of house sites, regulation of construction, 9 C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
alteration and repair of buildings in Sikkim and for matters
connected therewith. It does not bar the respondent from
approaching the Civil Court for reliefs as prayed for.
Section 12 of the Act of 1985 which was pressed by the
learned Additional Advocate General only provides that all
offences under it or Rules or Regulations made thereunder
shall be cognizable and triable by a Judicial Magistrate of
First Class. The argument that as section 12 provides that
the offences under the Act of 1985, Rules or Regulations is
triable by Judicial Magistrate, the respondent could not
approach the Civil Court for the reliefs as prayed for in the
plaint is also not sound. Violation of any of the provisions
of the Act of 1985 which is considered as an offence under
it is cognizable and triable by a Judicial Magistrate of the
First Class. That however, cannot mean that the
respondent cannot challenge a notice of demolition before
the Civil Court. The Act of 1985 does not contain any
provision which prohibits the respondent from approaching
the Civil Court.
12. It is also argued that the plaint does not disclose a
cause of action. The learned Additional Advocate General
submitted that the respondent failed to specifically assert
that the cause of action arose at a particular time. Order 7
Rule 11 (a) of the CPC provides for rejection of plaint which
does not disclose a cause of action. A perusal of the plaint 10 C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
reflects that the respondent has asserted all the necessary
facts in support of his right to judgment. He has asserted
that his father had been provided the suit land by late
Zigmee Wangyal Lassopa in 1985 and later after the demise
of his father, the respondent had also been given
permission by Jolly Wangyal Lassopa, son of late Zigmee
Wangyal Lassopa to construct the two storied RCC
structure in the year 2004 and that he has been in its
possession and occupation till date. The respondent has
also asserted that on 10.09.2021 the revisionist no.2
issued a demolition notice to demolish the structure within
15 days of the issuance of the demolition notice. The
bundle of material facts necessary for the respondent to
prove in order to entitle him to the reliefs claimed in the
suit has been stated by him. It cannot thus be said that the
plaint failed to disclose the cause of action merely because
it did not specifically state so. The cause of action is a
bundle of material facts necessary for the plaintiff to prove
and claim his right to judgment as held by the Supreme
Court.
13. This Court shall now examine whether there is
merit on the issue of limitation raised for the first time
before this Court by the learned Additional Advocate
General. Prayer (b) of the plaint for declaration that the
demolition notice dated 10.09.2021 is illegal is within time 11 C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
discernible from the facts pleaded in the plaint as it was
filed within the three years as provided in Article 58 of the
Limitation Act, 1963.
14. The respondent has in paragraph 5 of the plaint
averred that during the year 2008 the Town Planner
blamed him that he had constructed the two storied RCC
structure by encroaching the State Government drain. He
has further stated that he had requested the Town Planner
to get the services of an Amin in order to verify the actual
status of the suit land however, it was not considered and
he remained silent till 2016. It is further averred that
during 2016 the Town Planner again raised the same issue
but he was not ready for verification as per law and instead
started making other grounds that the RCC structure was
constructed without approved blue print plan. From the
narration of the facts as pleaded in the plaint it is evident
that no action was taken against the respondent till the
issuance of the demolition notice dated 10.09.2021. It is
true, as pointed out by the learned Additional Advocate
General, that the demolition notice dated 10.09.2021 does
mention about a previous demolition notice dated
11.03.2021 however, the plaint does not mention about it.
On a reading of a plaint and the documents relied upon it
does not ex-facie appear that it is barred by Article 58 of
the Limitation Act, 1963 as at this stage the Court is not 12 C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
required to examine the truth of the averments, which
must be examined during trial. Although it is discernible
that the respondent was aware that the Town Planner had
told him in 2008 and 2011 that he had encroached
Government land it is also evident that no action was taken
by the revisionists until the issuance of the impugned
demolition notice dated 10.09.2021. According to the
plaint, the respondent constructed the two storied RCC
structure in the year 2004. It is his case that there was no
objection from the Government offices when he did so. It is
also the respondent's case that he has not encroached any
part of the Government land. Quite clearly the real threat
to his possession and occupation of the two storied RCC
structure came only on 10.09.2021 on the issuance of the
demolition notice. The plaint read as a whole clearly reflects
that the clear and unequivocal threat to infringe the
respondent's right of possession of the suit land and the
RCC building came only when the demolition notice dated
10.09.2021 was received by him. Before this date the
revisionists had not taken any action to disturb the
respondent's possession. Mere oral allegation by the Town
Planner in the year 2008 and 2016 without anything more
cannot be construed as a cause of action to bring the suit
for declaration. Thus it is clear from the reading of the 13 C.R.P. No. 02 of 2023 District Collector, South Sikkim, Namchi & Ors. vs. Raj Balam Prasad
statement in the plaint that the suit does not appear to be
barred by Article 58 of the Limitation Act, 1963.
15. Further, Order 7 Rule 11 of the CPC provides for
rejection of the plaint on the ground available therein and
not rejection of one of the prayers in the plaint. As seen
above prayer (b) of the plaint appears to be within the
limitation period and thus the plaint could not have been
rejected. The learned Civil Judge has correctly rejected the
petition under Order 7 Rule 11 of the CPC filed by the
revisionists. The Revision Petition is rejected. Pending
interim application is also disposed of accordingly.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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