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2007 Supreme(All) 2130
[2007(9) ADJ 655]
ALLAHABAD HIGH COURT
BEFORE : PANKAJ MITHAL, J.
CHHEDILAL AND ANOTHER .................Appellants
Versus
RAJARAM AND ANOTHER ..............Respondents
(Second Appeal No. 542 of 1975, decided on 13th August, 2007)
Counsel :
V.K.S. Chaudhary and Om Prakash Mishra for the Appellants; A.N. Bhargava for the Respondents.
Headnote:Code of Civil Procedure, 1908—Sections 9, 11 and 100—U.P. Municipalities Act, 1916—Sections 60, 318 and 298—Specific Relief Act, 1963—Section 41(h)—Licence—Grant of, to defendant-2 and 3 (appellants) by defendant-1, Municipal Board—Whether in contravention of Municipal Bye-laws—Suit, whether barred by res judicata—And that whether suit was barred by time—Previously present plaintiff-respondent-1 filed suit against present defendants-appellants for permanent injunction restraining them from operating Oil Expeller (Kolhu) and Flour Mill (Chakki) from Ahata in question on ground of public nuisance—Which was dismissed by trial Court—Thereafter, plaintiff-respondent-1 (since deceased, now rep. by LRs.) then instituted another O.S. for mandatory injunction directing defendant-respondent-2, Municipal Board to cancel licence granted to defendants-appellants to run a Flour Mill and an Oil Expeller from Ahata—Trial Court dismissed suit holding that suit was barred by Section 11, C.P.C., but suit was held to be within time, and that licence granted to defendants-appellants to run a Flour Mill and Oil Expeller was in violation of Municipal Bye-laws—Appeal against, by plaintiff-respondent-1, which held that suit was not barred by Section 11, C.P.C., allowing appeal and setting aside order and judgment of trial Court, and passed a decree of mandatory injunction directing respondent-2 Municipal Board to cancel licence of defendant-appellant to run Flour Mill and Oil Expeller—Hence appeal against—Held, suit itself was not maintainable for lack of jurisdiction on part of Civil Court—And, therefore, decree was nothing, but non-est and a nullity—Therefore, it was liable to be set aside—Civil suit was not competent—Hence, judgment and order passed by lower appellate Court set aside—And suit was liable to be dismissed as not maintainable. [Paras 35, 36, 37 and 38]
Hon’ble Pankaj Mithal, J.—The defendants-appellants have preferred this appeal against the judgment, order and decree dated 15.1.1975 passed in Civil Appeal No. 316 of 1963 arising from Original Suit No. 806 of 1970 between Rajaram and another v. Municipal Board, Mauranipur and others, and has prayed that the impugned judgment, order and decree of the lower appellate Court be set aside and that of the trial Court be restored.
2. Before adverting to the factual matrix of the present case it is proper and relevant to point out that previously the present plaintiff-respondent No. 1 Rajaram had filed another suit No. 1089 of 1966 against the present defendants-appellants for permanent injunction restraining them from operating the oil expeller (Kollhu) and the flour mill (Chakki) from the Ahata in question on the ground that it created public nuisance. The said suit was re-numbered as Original Suit No. 32 of 1969 and after contest was dismissed by the judgment and order dated 30.7.1971. It was held that the said Ahata, the flour mill and the oil expeller are situate within the busy market area where large number of other similar kind of business units are going on. The noise and vibration if any created by the running of the machines of such units is so insignificant looking to the area in which they are located that it create no actionable nuisance.
3. The plaintiff-respondent No. 1 Rajaram (since deceased now represented by his heirs and legal representatives) then instituted Original Suit No. 806 of 1970 for mandatory injunction directing the defendant-respondent No. 2 herein i.e. Municipal Board, Mauranipur, District Jhansi to cancel the licence granted to the defendants-appellants Chhedilal and Shyam Behan to run a flour mill and an oil expeller from Ahata Municipal No. 1458 situate in Mauranipur, District Jhansi. The aforesaid suit was filed with the allegations that the plaintiff-respondent No. 1 is the owner of the house No. 1459. Adjoining to it, on its western side is Ahata bearing Municipal No. 1458 of which the defendants-appellants are tenants. One of the defendant-appellant i.e. Chhedilal had obtained a licence from the Municipal Board to run a flour mill and an oil expeller from the said Ahata in the year 1966 but the same was cancelled on 17.3.1969 in view of the interim injunction granted by the Civil Court in the earlier suit. However, again licence to the same effect has been granted in 1969 which is liable to be cancelled as it has been issued in contravention of the municipal bye-laws.
4. The suit was contested by the defendants-appellants by stating that the licence was duly issued by the Municipal Board in accordance with the bye-laws. The plaintiff-respondent No. 1 had preferred an appeal against the grant of said licence before the Commissioner of the division which was rejected whereupon the matter was allowed to rest. The earlier suit No. 1089 of 1966, Rajaram v. Shyam Bihari, renumbered as Original Suit No. 32 of 1969 instituted by the plaintiff-respondent No. 1 restraining the defendants appellants from running the flour mill in the said Ahata was dismissed vide judgment and order dated 30.7.1971. Therefore, the present suit is barred by time and principle of res judicata.
5. The Court of first instance on the basis of pleadings framed necessary issues. The main and relevant issues were as under :
(1) Whether the licence granted to the defendant Nos. 2 and 3 (appellants) by the defendant No. 1 Municipal Board is in contravention of the municipal bye-laws;
(2) Whether the suit is barred by the principle of res judicata; and
(3) Whether the suit is barred by time.
6. Apart from the above issues, there were two other issues with regard to valuation and payment of Court fees and as to the relief to which the plaintiff-respondent No. 1 is entitled to under law.
7. The Trial Court dismissed the suit vide judgment and order dated 11.10.1973 holding that the suit is barred by Section 11 C.P.C., but the suit was
