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SUPREME COURT OF INDIA
HEMANT GUPTA, A.S. BOPANNA, JJ.
RATUL MAHANTA - APPELLANT
VERSUS
NIRMALENDU SAHA - RESPONDENT
CIVIL APPEAL NO. 4627 OF 2021 (ARISING OUT OF SLP (CIVIL) NO.24735 OF 2014)
DECIDED ON : 10-08-2021
Civil Procedure Code, 1908 – Order VII Rule 11(d) and Section 9 – Guwahati Municipal Corporation Act, 1971 – Section 341 read with Sections 246, 247 and 248 – Suit for injunction against obstruction on free flow of water in common public drain – Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred – Order VII Rule 11(d) contemplates that from statement contained in plaint suit should appear to be barred by any law, in which case plaint shall be rejected – Issue relating to a common drain between two private individuals residing within limits of Municipal Corporation is not an issue regarding which a specific bar is contemplated against approaching civil court for relief – Sections 246, 247 and 248 though referred to ownership and manner in which drains connected to municipal drain are to be used and Commissioner is given authority to compel owner of a drain to permit another property owner to use the same, said provisions cannot be considered either as an express or an implied bar on civil court to entertain a suit relating to declaration of an existing right to use of drain as asserted in plaint – Existence of a drain as claimed by appellant in plaint as on date of purchase of property and same being used throughout is an issue which is to be proved based on evidence that would be tendered in suit – Relief sought in instant suit is in nature of declaratory relief in an inter se dispute between parties – Consideration by statutory authority as provided under GMC Act is of summary nature – Order passed by High Court rejecting plaint set aside and plaint in title suit restored to file of Munsif. (Paras 7, 8, 11, 16, 17 and 20)
Facts of the case:
Appellant instituted title suit No.334 of 2011 in Court of learned Munsif No.2, Kamrup Guwahati against the respondent herein seeking for a declaration that on the western boundary of suit Schedule properties A, B and C there is a common public drain which can be used by the plaintiff. A declaration is also sought to the affect that the public drain on the boundary of the suit Schedule ‘C’ property of the defendant, connected to the plaintiff’s property cannot be obstructed by the defendant at any point of time. As an ancillary relief, the appellant has also sought for permanent injunction against the defendant so as to allow free flow of water in the said drain upto the main GMC drain. Question therefore is as to whether the nature of the relief prayed in the plaint falls exclusively within domain of the GMC Act and as to whether the case put forth and the relief prayed is barred by any provision contained in the GMC Act so as to disentitle the civil court to entertain the suit as contemplated under Section 9 of the CPC, if so, whether a plaint of the present nature was liable to be rejected as envisaged under Order VII Rule11(d) of CPC.
Findings of Court:
High Court without taking note of these aspects of the matter has wrongly invoked the provisions contained in Order VII Rule 11 (d) of Civil Procedure Code to reject plaint, when in instant facts there is neither express nor implied bar under any law. On the other hand, Munsif was justified in passing the order dated 16.11.2013 in T.S. No. 334/2011 holding suit to be maintainable.
Result : Appeal allowed.
Key Points: - Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. (!) - Issue relating to a common drain between two private individuals residing within limits of Municipal Corporation is not an issue regarding which a specific bar is contemplated against approaching Civil Court for relief. (!) - Declaratory relief cannot be agitated and given in a summary jurisdiction. (!) - Order VII Rule 11(d) contemplates that from statement contained in plaint suit should appear to be barred by any law, in which case plaint shall be rejected. (!) - Sections 246, 247 and 248 of the GMC Act cannot be considered either as an express or an implied bar on civil court to entertain a suit relating to declaration of an existing right to use of drain as asserted in plaint. (!) - Existence of a drain as claimed by appellant in plaint as on date of purchase of property and the same being used throughout is an issue which is to be proved based on evidence that would be tendered in suit. (!) - Relief sought in instant suit is in nature of declaratory relief in an inter se dispute between parties, and consideration by statutory authority as provided under GMC Act is of summary nature. (!) - High Court without taking note of these aspects of the matter has wrongly invoked the provisions contained in Order VII Rule 11(d) of Civil Procedure Code to reject plaint, when in instant facts there is neither express nor implied bar under any law. (!) - Munsif was justified in passing the order dated 16.11.2013 in T.S. No. 334/2011 holding suit to be maintainable. (!)
JUDGMENT :
A.S. Bopanna, J.
1. The appellant instituted title suit No.334 of 2011 in the Court of learned Munsif No.2, Kamrup Guwahati against the respondent herein seeking for a declaration that on the western boundary of the suit Schedule properties A, B and C there is a common public drain which can be used by the plaintiff. A declaration is also sought to the affect that the public drain on the boundary of the suit Schedule ‘C’ property of the defendant, connected to the plaintiff’s property cannot be obstructed by the defendant at any point of time. As an ancillary relief, the appellant has also sought for permanent injunction against the defendant so as to allow free flow of water in the said drain upto the main GMC drain.
2. The respondent having appeared, disputed the claim put forth by the plaintiff on merits. In addition, the respondent raised the issue of jurisdiction for the civil court to entertain the suit in view of the provisions contained in the Guwahati Municipal Corporation Act, 1971 (‘GMC’ Act for short). In the said suit, since the appellant had also prayed for temporary injunction, on consideration it was granted by the trial court, of course without reference to the objection regarding jurisdiction. The respondent had therefore assailed the order of injunction by filing an appeal before the Lower Appellate Court under Section 96 (1) read with Order 43 Rule 1 of the Civil Procedure Code (‘CPC’ for short). In the said appeal, the respondent herein who was the appellant had contended that the order dated 30.09.2011 passed by the learned Munsif was not justified since the issue relating to the maintainability of the suit vis-a-vis the provisions of the GMC Act barring the jurisdiction of the civil court goes to the root of the case. It was contended that the same was required to be considered and decided, before considering any other relief prayed in the suit. The lower appellate court in the said miscellaneous application No.33/2011 through its order dated 21.09.2012 arrived at the conclusion that the jurisdiction aspect is to be decided at the outset by the learned Munsif. Therefore, without going into the merits, the lower appellate court remanded the matter by setting aside the order impugned in the said appeal for deciding the question of jurisdiction before considering grant of any other relief.
3. The appellant herein claiming to be aggrieved by the said order preferred revision petition in CRP No.260/2013 before the Gauhati High Court. The learned Judge while taking note of the rival contentions, through its order dated 29.08.2013 had agreed with the decision of the lower appellate court that the jurisdiction of the civil court to entertain the suit was to be decided at the outset. The revision petition was accordingly disposed of. The parties were allowed to urge their contentions in the court of the learned Munsif.
4. Pursuant thereto the learned Munsif has considered the issue relating to jurisdiction and has by its order dated 16.11.2013 arrived at the conclusion that the bar contemplated under the GMC Act does not apply to the fact situation, keeping in view the nature of the relief prayed. Accordingly, the learned Munsif has held that the civil court has jurisdiction to try the suit between the parties. The respondent herein claiming to be aggrieved by the said order dated 16.11.2013 preferred revision petition in CRP No.128/2018 before the Gauhati High Court. The learned Judge, through the order dated 06.06.2014 has held that the jurisdiction of this civil court would stand ousted by implication and the party can claim relief under the procedure prescribed under the GMC Act only. In that background, the order dated 16.11.2013 impugned in the revision petition was set aside, the suit was held not maintainable and liberty was reserved to the appellant to ventilate his grievance under the relevant provisions of the GMC Act, if so advised. Accordingly, the plaint in title suit No.334/2011 was ordered t
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