IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SMT. JUSTICE ANJULI PALO ON THE 2^nd OF NOVEMBER, 2022 CIVIL REVISION No. 599 of 2022 BETWEEN:-

ASHUKANT PRADEEP JAIN S/O LATE SHRI TARACHAND JAIN, AGED ABOUT 54 YEARS, JAWAHAR WARD GADARWARA TEHSIL GADARWARA DISTRICT NARSINGHIPUR M.P.

(MADHYA PRADESH)

.....PETITIONER (BY SHRI NITIN KUMAR AGARWAL, ADVOCATE )

AND

1. SWATANTRA KUMAR JAIN S/O LATE SHRI JEEVANLAL JAIN, AGED ABOUT 75 YEARS, OCCUPATION: CLOTH SHOP JHANDA CHOWK TEHSIL GADARWARA DISTRICT NARSINGHPUR M.P. (MADHYA PRADESH)

2. SAMIKSHA JAIN D/O SHRI PRADEEP KUMAR JAIN, AGED ABOUT 37 YEARS, JHANDA CHOWK, JAWAHAR WARD, GADARWARA, TEHSIL GADARWARA DISTRICT NARSINGHPUR (M.P.)

(MADHYA PRADESH)

3. NAGAR PALIKA PARISHAD THROUGH, CHIEF MUNICIPAL OFFICER GADARWARA, TEHSIL GADARWARA, DISTRICT, NARSINGHPUR (M.P.)

(MADHYA PRADESH)

.....RESPONDENTS This revision coming on for admission this day, the court passed the following:

ORDER

Signature Not Verified SAN This civil revision u/s 115 of CPC has been filed by the Digitally signed by RAJESH MAMTANI applicant/defendant No.1 against order dated 11.10.2022 passed by the First Civil Judge (Junior Division) Gadarwara, District Narsinghpur in RCS-A No.77/22 whereby his application under Order 7 Rule 11 of CPC has been dismissed.

2. The respondent No.1 as plaintiff filed a civil suit against the applicant/defendant No.1 and respondents No.2 & 3 seeking declaration and mandatory injunction. The houses of applicant/ defendant No.1 and respondent No.1/plaintiff are adjoining to each other. As averred in the plaint, the respondent No.1/plaintiff be declared as owner of a wall of 09 inches width towards eastern side running towards north-south direction. The applicant/defendant No.1 demolished aforesaid wall. Therefore, plaintiff also sought the relief that defendant No.1 be directed to reconstruct the said wall. The defendant No.3 (Municipality Council) be directed to cancel the building permission dated 10.3.2021.

3. During pendency of aforesaid civil suit the applicant/defendant No.1 filed an application under Order 7 Rule 11 CPC seeking rejection of plaint on the ground that plaintiff has not complied with the provision of section 319 of M.P.Municipalities Act, 1961 as the plaintiff before institution of suit has not issued any notice to Defendant No.3. The respondent No.1/plaintiff filed reply stating that provisions of section 319 of aforesaid Act are not attracted. The trial Court vide order dated 11.10.2022 rejected the application under Order 7 Rule 11 CPC on the ground that dispute is between respondent No.1/plaintiff and applicant/defendant No.1.

4. Learned counsel for the applicant challenged the impugned order on the ground that suit is for declaration and permanent & mandatory injunction Signature Not Verified SAN and it is settled law that sub-section (3) of Section 319 of the M.P.Municipalities Act, 1961 is applicable where suit is instituted only for relief of injunction, whereas the present suit is also for declaration and injunction. The trial Court erred in observing that dispute is between the applicant and respondent No.1. It ought to have been appreciated that main relief has been claimed against respondent No.3 in the form of cancellation of building permission.

5. Heard the learned counsel for the applicant and perused the impugned order. In the present case the main dispute is between the applicant and respondent No.1. The plaintiff has only sought relief of injunction from the respondent No.3. The main relief has been sought by the plaintiff against the defendant No.1/applicant. Therefore, the trial Court has rightly dismissed the application filed by the applicant under Order 7 Rule 11 CPC.

6. In the result, there is not illegality or perversity in the impugned order. The civil revision, being devoid of merit, stands dismissed in limine.

(ANJULI PALO)

JUDGE RM Signature Not Verified SAN