2003 Supreme(Raj) 1659
RAJASTHAN HIGH COURT
N.P.Gupta, J.
Gram Panchayat Gangwa - Appellant
Versus
Bankatlal S/o Hanumanprasad & Ors. - Respondent
S.B. Civil Revision Petition No. 675 of 1998.
Decided On : 5-12-2003
Advocates:
For the Petitioner:R.S Choudhary, Advocate.
For the Respondents:M.R. Singhvi, Advocate.
Non-compliance with the notice requirement under Section 109 of the Rajasthan Panchayati Raj Act, 1994.
Headnote:
Notice - Rajasthan Panchayati Raj Act, 1994 - The suit was filed against the Gram Panchayat without giving the required notice as per Section 109 of the Act. The court found that the notice given to the Sarpanch did not comply with the provisions of Section 109, and the suit did not meet the requirements of the section.
Fact of the Case:
The suit was filed against the Gram Panchayat without giving the required notice as per Section 109 of the Rajasthan Panchayati Raj Act, 1994.
Finding of the Court:
The court found that the notice given to the Sarpanch did not comply with the provisions of Section 109, and the suit did not meet the requirements of the section. The revision petition was allowed, and the petitioner's application for dismissal of the suit was granted.
Issues: Non-compliance with the notice requirement under Section 109 of the Rajasthan Panchayati Raj Act, 1994.
Ratio Decidendi: The suit did not comply with the requirements of Section 109 as there was no averment about any notice given to the Gram Panchayat as contemplated by the section.
Final Decision: The revision petition was allowed, and the petitioner's application for dismissal of the suit was granted.
JUDGMENT
1. - Heard learned counsel for the.parties.
2. The contention raised by the learned counsel for the petitioner is that the suit has been filed against the Gram Panchayat alongwith other defendants, but it is a suit wherein so far Gram Panchayat is concerned, a notice u/s. 109 of the Rajasthan Panchayati Raj Act, 1994 was required to be given, and the plaint was required to contain statement about such notice having been so delivered. It is contended that since in the present case, notice has not been given, as against the petitioner, the suit is barred and was required to be dismissed under Order 7, Rule 11 CPC.
3. Learned counsel for the non-petitioner on the other hand, supported the impugned order by contending that the learned trial Court has noticed that it was way back on 15.4.1991 that a legal notice was given to the Sarpanch, and therefore, that should be taken to be sufficient compliance of the provisions of Section 109.
4. I have considered the submissions and have perused the impugned order, so also the copy of the plaint made available to me by the learned counsel for the petitioner.
5. A perusal of the impugned order shows that the learned trial Court has though noticed giving of one notice on 15.4.1991, but then, while recording the finding, it has found that the application filed by the plaintiff on 28.8.1995 before filing of the suit for being given patta, is taken to be the notice. It is not in dispute that the suit was filed on 13.9.1995. In this background, a look at the entire plaint shows that there is no averment whatever about any notice having been given to the Gram Panchayat as contemplated by Section 109, nor is there any prayer to treat either the notice dated 15.4.1991 or 28.8.1995 to be the sufficient compliance of Section 109. Admittedly, the suit has been filed before expiry of 60 days even with effect from 28.8.1995. Considering the case from any stand point, it cannot be said that the suit at all complies with the requirements of Section 109.
6. As such, I have no option but to allow the revision petition, the same is, therefore, allowed and the petitioner's application filed under Order 7, Rule 11 CPC so far as it prays for dismissal of the suit s the petitioner, is allowed.Revision petition allowed.
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