Hon'ble Dr. KOTHARI, J.—The present appeal has been filed by the plaintiff Baldev Singh being aggrieved by the judgment and decree dtd. 21.7.2011 passed by the learned Additional Dist. Judge (Fast Track) No. 1, Hanumangarh in civil suit No. 34/2011 - Baldev Singh vs. Guddi Devi and Ors. Whereby the suit filed by the plaintiff for injunction has been dismissed under Order 7 Rule 11 CPC on the application filed by the defendant No. 1 Smt. Guddi Devi, who at the relevant point of time was Sarpanch of the Gram Panchayat.

2. The learned Court below has dismissed the suit at the anvil of Order 7 Rule 11 C.P.C. by assigning reasons in para 11 of the judgment that since prior mandatory notice as required under Sections 109 of the Rajasthan Panchayati Raj Act, 1994 was not served on the Gram Panchayat, therefore, the suit filed by the plaintiff was not maintainable and therefore, the application filed by the defendant No. 1 Smt. Guddi under Order 7 Rule 11 C.P.C. deserves to be allowed and the suit deserves dismissal.

3. Being aggrieved by the said judgment and decree dtd. 21.7.2011, the appellant-plaintiff has preferred the present appeal under Section 96 C.P.C.

4. The learned counsel for the plaintiff-appellant Mr. J.K. Bhaiya submitted that since allegations were made in the personal capacity against Smt. Guddi Devi and Gram Panchayat was not impleaded as defendant in the suit, going by the plaint's averments, the suit could not have been dismissed under Order 7 Rule 11 C.P.C. and consequently, the judgment under appeal deserves to be set aside and the matter deserves to be sent back to the learned Trial Court for deciding the same on merits.

5. On the other hand, Mr. Abhinav Jain, learned counsel appearing for the defendant No.1 Smt.Guddi Devi submitted that Sec.109 of the Rajasthan Panchayati Raj Act, 1994 is of mandatory nature and the encroachments by the plaintiff beyond the limits given in his patta was intended to be removed by taking due process of law by defendant No. 1 not in her personal capacity but in official capacity as Sarpanch with the police aid, if necessary, therefore, for want of impleadment of necessary and proper party, namely Gram Panchayat in the suit, the suit was not maintainable. The learned Court below was justified in rejecting the suit itself as barred by law in the absence of prior notice u/Sec. 109 of the Act and there is no error in the impugned judgment.

6. Section 109 of the Act is reproduced below for ready reference:

"109. Suits etc. against Panchayat, Panchayat Samiti and Zila Parished:-(1) No suit or other civil proceeding against a Panchayati Raj Institution of against any member, officer or servant thereof or against any person acting under the direction of a Panchyati Raj Institution or any member, officer of servant thereof for anything done or purporting to be done under this Act in its or his official capacity-

(a) Shall be instituted until the expiration of two months. After notice in writing, the cause of action, the name and the place of abode of the intending plaintiff and the nature of the relief which he claim, he has been delivered or left at its office or, in the case of a member, officer, servant or person as aforesaid delivered to him or left at the office or at his usual place of abode and the plaint shall in each such case contain a statement that such notice has been so delivered or left, or

(b) Shall be instituted, unless it is a suit for the recovery of immovable property or for a declaration of title thereto, otherwise than within six months after transfer next the accrual of the alleged cause of action.

2. The notice referred to in Sub-sec. (1) when it is intended for a Panchayat, Samiti or a Zila Parishad, shall be addressed to the Sarpanch, Vikas Adhikari or the Chief Executive Officer respectively."

7. The aforesaid provision clearly requires that no suit or other civil proceedings against Panchayati Raj Institution or against any member, officer or servant thereof for anyt

Click Here to Read the rest of this document