An application under Section 94 of CPC is not maintainable if the statutory notice under Section 67 of the Krishi Upaj Mandi Adhiniyam, 1972 has not been served.

ORDER

This petition under Article 227 of Constitution of India has been filed seeking the following relief (s) :

(i) Issue a Writ of Certiorari and set aside impugned order dated 26/07/2024 passed in MCA No.133/24 by 20th Additional District Judge, Jabalpur, annexure-P/7, in entirety in the interest of justice.

(ii) Consider grant of any other relief which this Court may deem proper and appropriate under the fact and circumstances of the case.

2. It is submitted by counsel for petitioners that respondent no.1 filed an application under Section 94 of CPC for grant of temporary injunction. Said application was dismissed by Seventh Civil Judge, Junior Division, Jabalpur by order dated 11/7/2024 passed in MJC No.430/2024. Being aggrieved by said order, respondent no.1 preferred an appeal, which was registered as MCA No.133/2024 and by impugned order dated 26/7/2024, 20th District Judge, Jabalpur has allowed the appeal and has issued a temporary injunction order against the petitioners, which has been made applicable till final disposal of suit.

3. It is submitted by counsel for petitioners that as per Section 67 of Krishi Upaj Mandi Adhiniyam, 1972 (in short “Adhiniyam, 1972”), no suit against Krishi Upaj Mandi would lie unless and until a notice of 60 days is given. It is submitted that the application under Section 94 of CPC was filed without issuing any notice under Section 67 of Adhiniyam, 1972 and accordingly, the application under Section 94 of CPC was not maintainable. The Trial Court did not commit any mistake by rejecting the application, however, the Appellate Court committed material illegality by reversing the said order and without adjudicating upon the maintainability of the application filed under Section 94 of CPC , has granted temporary injunction with a note that it shall remain in force till the final conclusion of the suit.

4. Per contra, petition is vehemently opposed by counsel for respondent no.1. It is submitted that power under Section 94 of CPC is supplementary in nature and the same can be invoked when no other remedy is available to the aggrieved person and, therefore, the application under Section 94 of CPC is maintainable.

5. Accordingly, this case was heard on the question “as to whether the application under Section 94 of CPC was maintainable or not”.

6. Heard learned counsel for the parties for the said limited purpose.

7. Section 67 of Adhiniyam, 1972 reads as under:-

67. Bar of suit in absence of notice.- No suit shall be instituted against the Board or any market committee, until the expiration of two months next after notice in writing stating the cause of action, name and place of abode of the intending plaintiff, and the relief which he claims has been delivered or left at its office, Every such suit shall be dismissed unless it is instituted within six months from the date of the accrual of the alleged cause of action.

8. Thus, it is clear that no suit shall be instituted against the Board or any market committee, until the expiration of two months next after notice in writing stating the cause of action, name and place of abode of the intending plaintiff, and the relief which he claims has been delivered or left at its office.

9. The next question for consideration is “as to whether application under Section 94 of CPC was filed before expiry of two months‟ notice or not?”

10. It is fairly conceded by Shri Amit Sahni that the application under Section 94 of CPC was filed prior to expiry of 60 days as required under Section 67 of Adhiniyam, 1972.

11. Therefore, now the only question for consideration is that “as to whether the application filed under Section 94 of CPC was maintainable or not?”

12. Counsel for respondent no.1 has relied upon the judgment passed by the Supreme Court in