2015 Supreme(Raj) 1956
RAJASTHAN HIGH COURT
Vineet Kothari, J.
Uttam Kumar Jain - Appellant
Versus
Sunil Acharya & Anr. - Respondent
S.B. Civil Revision Petition No. 121 of 2014.
Decided On : 19-11-2015
For the Petitioner No. 1:Mr. Rajat Dave, Mr. Parikshit Nayak, Advocates.
For the Respondent No. 1 and 2:Mr. Parikshit Nayak, Advocate.
For the Respondent No. 3/Defendant No. 2:Mr. I.R. Choudhary, Advocate.
The Court interpreted the provisions of Section 91 of the CPC and held that the Trial Judge should act with a great amount of circumspection and reservation while considering applications seeking leave to institute representative suits by private individuals raising a facade of public cause in such suits under Section 91 of CPC, lest such suits become tools in the hands of unscrupulous plaintiffs, blackmailers, or so-called self-assumed social activists.
Headnote:
Revision Petition - Section 91 of the Civil Procedure Code, 1908 - Leave to institute suit - Public nuisance - Wrongful act - Adverse effect on public - Rajasthan Municipalities Act, 2009 - Interpretation of provisions - Legal principles - Abuse of process of Court - Exemplary costs - Disciplinary action against Advocate.
Fact of the Case:
Plaintiffs filed a suit under Section 91 of the Civil Procedure Code, 1908 (CPC) seeking leave to institute a representative suit on the ground that the defendant had raised construction of residential flats on his own plot of land without obtaining due permission from the Municipal Council, Banswara, in accordance with Section 194 of the Rajasthan Municipalities Act, 2009, and that it was causing public nuisance and had an adverse effect on the plaintiffs. The Trial Court granted leave to the plaintiffs to institute the suit. Aggrieved by the order, the defendant filed a Revision Petition.
Finding of the Court:
The Court held that the impugned order granting leave to the plaintiffs to institute the suit under Section 91 of the CPC was unsustainable and allowed the Revision Petition. The Court found that the plaintiffs did not approach the Municipal Council, Banswara, by way of any appeal or representation regarding the permission for construction and approval of the map, and that they had not filed any appeal under Section 194(12) of the Act of 2009 before the Competent Authority of the Municipal Council. The Court further held that the Trial Judge had acted with a great amount of circumspection and reservation while considering the application seeking leave to institute such representative suits by private individuals raising a facade of public cause in such suits under Section 91 of CPC, lest such suits become tools in the hands of unscrupulous plaintiffs, blackmailers, or so-called self-assumed social activists.
Issues: 1. Whether the impugned order granting leave to the plaintiffs to institute the suit under Section 91 of the CPC was sustainable? 2. Whether the plaintiffs had approached the Municipal Council, Banswara, by way of any appeal or representation regarding the permission for construction and approval of the map? 3. Whether the plaintiffs had filed any appeal under Section 194(12) of the Act of 2009 before the Competent Authority of the Municipal Council?
Ratio Decidendi: 1. The Court held that the impugned order granting leave to the plaintiffs to institute the suit under Section 91 of the CPC was unsustainable and allowed the Revision Petition. 2. The Court found that the plaintiffs did not approach the Municipal Council, Banswara, by way of any appeal or representation regarding the permission for construction and approval of the map. 3. The Court further held that the Trial Judge had acted with a great amount of circumspection and reservation while considering the application seeking leave to institute such representative suits by private individuals raising a facade of public cause in such suits under Section 91 of CPC, lest such suits become tools in the hands of unscrupulous plaintiffs, blackmailers, or so-called self-assumed social activists.
Final Decision: The Court allowed the Revision Petition, quashed and set aside the impugned order dated 16.4.2014 passed by the Trial Court, and dismissed the suit as not maintainable under Section 91 of the CPC. The Court also imposed an exemplary cost of Rs. 50,000/- on the plaintiffs/respondents for abuse of process of Court and directed the Bar Council of Rajasthan to initiate an enquiry against the Plaintiff No. 1, Mr. Sunil Acharya, Advocate of Banswara for his misconduct.
JUDGMENT
1. - The present Revision Petition has been filed by the defendant/petitioner, Uttam Kumar, aggrieved by the Order dated 16.4.2014 passed by learned Trial Court of Civil Judge (Junior Division) Bagidora, District-Banswara (Shri Shiv Kumar), granting leave to plaintiffs/respondents, namely, Mr. Sunil Acharya, Advocate and Sh. Sunil Harijan, to institute suit under Section, 91 of the Civil Procedure Code, 1908 (for short, hereinafter referred to as 'C.P.C.').
2. The suit was instituted by the respondents/plaintiffs on the ground that the 'defendant/petitioner had raised construction of a building comprising residential flats on his own plot of land at Banswara, even, though after obtaining due permission from the concerned authority, i.e. the Municipal Council, Banswara, in accordance with Section 194 of the Rajasthan Municipalities Act, 2009 (Act 2009) but, it was not only causing public nuisance but was also a wrongful act having adverse effect on the plaintiffs/respondents, and therefore, a leaver institute such representative suit was sought by the plaintiffs in accordance wit Section 91 of the C.P.C., which came to be allowed by the learned Trial Court vide the impugned order.
3. Aggrieved by the same, the defendant/petitioner has approached this Com by way of present Revision Petition, in which while issuing notices to the respondents, a Co-ordinate Bench of this Court had stayed the effect and operation of the impugned Order dated 16.4.2014 passed by the learned civil Judge on 15.5.2014. Thereafter, the case came up for admission before this Co; today.
4. Mr. Rajat Dave, learned Counsel appearing on behalf of petition defendant submitted that the suit instituted by the plaintiffs/respondents is mala fides reasons and the leave to institute and maintain such suit, has won; been granted by the learned Trial Court in view of the fact that the construct, the residential flats has already been raised and completed by the defendant his private land, after obtaining due permission for raising such construe] from the Competent Authority in the Municipal Council, Banswara, and it car.: nor does it amount to any "public nuisance" nor a wrongful act having: adverse effect on the public or the plaintiffs. Therefore, the basic condition: Section 91 of the C.P.C. were not available in the present case. He also submitted that the Plaintiff No. 1, Mr. Sunil Acharya, is a practising Advocate at Banswara, taking another person, namely, Shri Sonu Harijan, with him, who is nothing ta shadow colleague, he has instituted this suit allegedly for public cause and sought the leave of Court under Section 91 of the C.P.C. for actually exerting an the pressure by causing harassment to the defendant/petitioner. He also Submitted that the defendant had hotly contested the said leave application of the plaintiffs by filing a suitable reply thereto before the learned Trial Court and bringing it to the notice of the Trial Court the fact that if the plaintiffs had felt aggrieved for the said permission for raising construction given by the Municipal council, they could have but had never approached the Municipal Council, banswara, for so-called wrongful permission to the defendant/petitioner for raising such construction of residential flats. The plaintiffs did not file any appeal against such permission under Section 194(12) of the Rajasthan Municipalities of 2009 and the construction having been already completed, there was no question of any public nuisance or adverse effect caused to the plaintiffs/respondents in the present case, but surprisingly and quite erroneously the learned Trial Court has granted such leave to maintain this suit under Section 91 the C.P.C. vide the impugned order under the pressure of the local Advocate, Mr. Sunil Acharya, the Plaintiff No. 1.
5. Mr. Rajat Dave, also brought to the notice of the Court a threatening legal slice dead 18.4.2014 was sent by the Plaintiff No. 1, Mr. Sunil Acharya, Advocate under Section 19 of
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