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IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
Sanjay K. Agrawal, J.
Rajeevbhushn S/o Brijbhushan Prasad Pandey - Appellant
Versus
Chief Municipal Officer, Nagar Panchayat Sarangarh, District Raigarh (Chhattisgarh) - Respondent
SA No. 63 of 2016
Decided On : 23-09-2016
Specific Relief Act, 1877 - Section 54 - Chhattisgarh Municipalities Act, 1961 - Section 319 – Civil Procedure Code - Rule 11 - Order 7 - Trial Court - Permanent injunction - No suit shall be instituted against any Council or any officer or servant thereof or any person acting under the direction of any such Council officer or servant for anything done or purporting to be done under this Act until expiration of two months next after a notice, in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which claims, has been, in case of a Council delivered or left at its office, and, in case of any such member officer servant or person as aforesaid, delivered to him or left at his office or usual place of abode; and the plaint shall contain a statement that such notice has been so delivered or left – Held, Along with the trial court and the appellate court High Court also failed to appreciate the aforesaid fact and also overlooked the valuable interest and right of public at large to use the suit land which is a part of public street. Further, in absence of challenge to notice of eviction issued by the appellant, it was not open to the trial court to decide title merely because permanent injunction coupled with declaration of title was also sought for - In light of the judgment of the Supreme Court in the matter of Nagar if the facts of the case are examined, it is quite vivid that present is a suit for declaration that the order of the Chief Municipal Officer is null and void and also suit for seeking permanent injunction - Thus it is not a bare suit for permanent injunction under Section 38 of the Specific Relief Act and it is a suit for declaration as well as permanent injunction - Therefore, the provision enumerated in Section 319(1) of Act would apply with full force and Section 319(3) of the Act would not be applied and the suit could not be filed by the plaintiff/appellant without service of notice under Section 319(1) of the Act to respondent/defendant - No suit shall be instituted against any Council or any officer or servant thereof or any person acting under the direction of any such Council officer or servant for anything done or purporting to be done under this Act until the expiration of two months next after a notice, in writing, stating the cause of action name and place of abode of intending plaintiff and the relief which he claims, has been in of a Council delivered or left at its office and in case of any such member officer servant or person as delivered to him or left at his office or usual place of abode and plaint shall contain a statement that such notice has been so delivered or left - Appeal is dismissed
1. The substantial questions of law involved, formulated and to be answered in the appeal preferred by the plaintiff are as under:-
“(i) Whether both the Courts below are justified in dismissing the suit of the plaintiff for want of notice under Section 319 of the Chhattisgarh Municipalities Act, 1961 (for short 'the Act') ignoring sub-section (3) of Section 319 of the Act which mandates that sub-section (1) of Section 319 of the Act, 1961 shall not apply to any suit instituted under Section 54 of the Specific Relief Act, 1877 Equivalent to Section 38 of Specific Relief Act, 1963?
(ii) Whether both the Courts below are justified in holding that suit filed by plaintiff under Section 319 (1) of the Act, 1961 is applicable and dismissing the suit by recording a perverse finding?”
2. In order to answer the substantial questions of law, following facts are required to be noticed.
2.1. The plaintiff filed a suit for permanent injunction and for declaring the order of the Chief Municipal Officer (for short 'CMO') dated 19-10-2001 as null and void stating inter-alia that the order passed by the CMO directing eviction by order dated 19-10-2001 is null and void as the plaintiff is the tenant and defendant Nagar Panchayat be restrained from evicting the plaintiff from suit accommodation.
2.2. The defendant filed his written statement before the trial Court and raised a plea that the plaintiff has not served notice to the defendant under Section 319(1) of the Chhattisgarh Municipalities Act, 1961 (for short 'the Act'), therefore, the suit is barred as per provisions contained in sub-section (1) of Section 319 of the Act and also filed an application under Order 7 Rule 11 CPC for rejecting the plaint.
2.3. Trial Court by its order dated 09-01-2015 in exercise of power conferred under Order 7 Rule 11(d) of the CPC rejected the plaint holding that notice was required to be served under Section 319(1) of the Act before instituting the suit.
3. On an appeal being preferred, the First Appellate Court concurred with the finding of the trial Court and dismissed the first appeal leading to filing of this second appeal under Section 100 of the CPC in which the substantial questions of law have already been framed and incorporated in the opening paragraph of this judgment.
4. Shri Vineet Kumar Pandey, learned counsel for the appellant would submit that the suit was filed by the plaintiff for declaring the order of CMO dated 19-10-2001 to be null and void as such, suit was filed under Section 38 of the Specific Relief Act and by virtue of provision contained in sub-section (3) of Section 319 of the Act, provision of Section 319(1) of the Act shall not be applicable, therefore, the suit was maintainable before the trial Court without serving notice under Section 319(1) of the Act of 1961 and it should not have been dismissed. Both the Courts below have grossly erred in rejecting the plaint in exercise of power conferred under Order 7 Rule 11(d) of the CPC.
5. On the other hand, Shri R.S. Patel, learned counsel appearing for the respondent would support the impugned order and submit that such a suit was not maintainable for want of notice under Section 319(1) of the Act of 1961 and it has rightly been dismissed by the trial Court and the First Appellate Court has rightly affirmed the same and placed reliance upon a decision in the matter of Municipality Through Chief Municipal Officer, Raghogarh V. Gas Authority of India and others, AIR 2006 MP 17.
6. I have heard learned counsel for the parties, considered rival submissions made therein and gone through the record of the trial Court as well as the appellate Court extensively.
7. In order to judge the correctness of the plea raised at the Bar, it would be appropriate to reproduce Section 319 of the Act which reads as under:
“319. Bar of suit in absence of notice.-
(1) No suit shall be instituted against any Council or any Councillor, officer or servant thereof or any person acting under the direction of a
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