Hesham Ahmad @ Ehtesham and 6 Others vs Smt. Shakuntala Singh and 6 Others

Counsel for Appellant(s) : Mohd. Ali, Akash Kumar Singh, Ankit Mishra Counsel for Respondent(s) : Shabee Haider, Ashish Kumar Singh, Krishana Kumar Singh, Shabee Haider

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Court No. - 20

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HON'BLE PRASHANT KUMAR, J.

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Heard Shri Mohd. Ali, learned counsel for the appellants as well as Shri Avinash Chandra, learned counsel for the respondent no.2, Shri Ashish Kumar Singh, learned counsel for the respondent/caveator and Shri Himanshu Singh, holding brief of Shri Krishna Kumar Singh, learned counsel for the respondent no.6/Nagar Palika Parishad.

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This first appeal from order under Order XLIII Rule 1(u) C.P.C. has been filed with the prayer to set-aside judgement/order dated 09.01.2026, passed by the Additional District Judge, Court No.6, Balrampur, in Civil Appeal No.02 of 2023 (C.N.R. No. UPBPO 10001072023) (Pramod Kumar

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FAFO No. - 352 of 2026

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Singh (Died) through legal representatives and another Vs. Hesham alias Ehtesham and others) , and to confirm the judgment and decree dated 22.12.2022, passed by the trial court and dismiss the Suit No.96 of 2012 (Pramod Kumar Singh (Died) through legal representatives and another Vs. Hesham alias Ehtesham and others) , which is pending before the Civil Judge (Senior Division), Balrampur, under Order 7 Rule 11(d) C.P.C. for want of notice under Section 326 of the Uttar Pradesh Municipalities Act, 1916.

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Brief facts of the case are that the respondents herein claimed to be the owner of the land, wherein the appellants herein (who are neighbours) are running their shop. A suit for removal of illegal possession was filed by the plaintiffs/respondents. It has been alleged in the suit that the plaintiffs/respondents had bought the land by means of two sale deeds and it has also been alleged that the appellants herein have deliberately and illegally constructed a wall by demolishing earlier wall. In the suit, the appellants/defendants filed their written statement wherein it has been stated that the Nagar Palika Parishad is a necessary party. The plaintiffs moved impleadment application for impleadment of the Nagar Palika Parishad. This application was allowed and the Nagar Palika Parishad was impleaded as a party on 24.09.2014. The Nagar Palika Parishad has raised objection that no notice was served on him. Hence, the suit was barred under Section 326 of the Uttar Pradesh Municipalities Act, 1916. The trial court after perusing the pleadings has framed issues. Issue No.7 was ‘whether the suit was barred under Order VII Rule 11(d) of the Civil Procedure Code’.

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This preliminary objection in the suit was decided, and the trial court held that the suit was neither barred by Section 326 of the Municipality Act, nor under Order VII Rule 11 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’), vide order dated 04.10.2016. This order was assailed by the Nagar Palika Parishad as well as by the appellants by filing Civil Revision No.58 of 2016. This civil revision was rejected vide order dated 02.08.2017. This order has been assailed by the appellants as well as by the Nagar Palika Parishad by filing writ petition being Writ Petition No.21634 (M/S) of 2017. This Court vide

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order dated 14.10.2022 set aside the revisional order and remanded the matter back to the trial court for deciding Issue No.7 afresh after hearing the parties concerned in accordance with law. Thereafter the trial court vide its order dated 22.12.2022 rejected the suit under Order VII Rule 11(d) of CPC. This order has been assailed by the respondents by filing Civil Appeal No.2 of 2023, which was allowed (vide order dated 18.02.2025 by the appellate court) by setting aside the order dated 22.12.2022 passed by the trial court and remanded the matter back again to be decided afresh. This remand order has been assailed by means of the First Appeal From Order No.188 of 2025 before this Court and this Court vide order dated 08.05.2025 allowed the appeal and set aside the order dated 18.02.2025 and remanded the matter back to the appellate court to decide the appeal afresh. Thereafter, the appellate court vide its judgement and order dated 09.01.2026 allowed the appeal and set aside the order dated 22.12.2022 passed by the trial court and remanded the matter back to the trial court to be decided afresh. This order has been challenged by means of this appeal.

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Shri Mohd. Ali, learned counsel for the appellants submitted that the appellate court has not dealt the crux of the matter. The appellate court did not record any finding with regard to the existence of the wall in question. He further submitted that the matter is covered by the judgement of the Full Bench of this Court passed in the case of Haji Ahmad Raza and others v. Municipal Board, Allahabad; AIR 1952 Allahabad 711 , wherein it has been held as under:

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“16. I am of opinion that the provisions of Section 326 Subsection (1) of the Municipalities Act would apply to all suits which are against the persons specified in that section and are in respect of acts done or purporting to have been done by the defendant in official capacity. There appears to me to be nothing in the provisions of this sub-section which should lead to a restriction in its application to cases in tort only. Similar expressions are used in Section 80, C. P. C. and it was observed in 'BHAGCHAND v. SECRETARY OF STATE', AIR 1927 P C 176 at p. 184:

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A view, therefore, about a bill for an injunction against serious and irreparable damage requiring the intervention of the Court, almost undisputed in the Court of appeal, would not be any guide to the meaning of the Civil Procedure Code, where the clause applies to all officers of Government and to all their official acts, and where the words 'in respect of, a form going beyond 'for anything done or intended to be done' show it to be wider than the statutes, on which the English authorities were decided."

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Later it was observed in 'REVATI MOHAN v. JATINDRA MOHAN', AIR 1934 P C 96 at p. 97:

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“In their Lordships' opinion such a suit is not within the ambit of Section 80 and no notice of suit was required. The learned Subordinate Judge held that the section had no application to suits in contract, and this dictum was rightly repelled by Mukerji, J. who delivered the judgment of the High Court. Having regard to the decision of this Board in 'BHAGCHAND v. SECRETARY OF STATE', AIR 1927 P C 176, their Lordships think that no such distinction is possible."

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The mere fact that this sub-section requires a clear statement of the amount of compensation claimed in the plaint need not mean that every plaint must claim compensation. If compensation is claimed its amount is required to be specified. The bye-law in suit passed by the Municipal Board, confirmed by the Commissioner and published in the Gezette gave sufficient cause of action for the suit to the plaintiffs and the conduct of the Municipal Board in passing the bye-law and publishing it amounted to an act within the meaning of Section 326 (1) of the Municipalities Act. I, am, therefore, of opinion that the provisions of Section 326 (1) of the Municipalities Act apply to the present suit.”

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(emphasis supplied)

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He further submitted that the suit was not for injunction simplicitor but for removal of the construction carried out by the appellants. He further submitted that the suit was bound to be dismissed as it is fully covered by the judgement of the Full Bench.

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He further submitted that during the course of pendency of the appeal, the Nagar Palika Parishad had given a notice to the appellants for demolition of the shop of the appellants, which was challenged before

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this Court by way of Writ-C No.7088 of 2025, which is pending before this Court.

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Per contra, Avinash Chandra, learned counsel for the respondent no.2/complainant submitted that the present appeal is not maintainable on behalf of private party as the sole objection taken by the appellants is that the suit is barred because of non service of notice under Section 326 of the Uttar Pradesh Municipalities Act, 1916. This objection is not available to a private party. To buttress his argument, he is placing reliance upon judgement by this Court in the case of Smt. Rekha vs. Smt. Veermati and another; AIR 2012 (NOC) (SUPP) 360 (ALL), wherein it has been held as under:

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“4. In view of above exposition of law laid down by Special Bench, it is quite clear that objection with respect to want of notice under Section 80 CPC cannot be taken by a private individual since it is for the benefit of Government and its officials and, therefore, it can be taken only by them and would be considered if it is pressed by those for whose benefit the provision has been made. A private individual cannot challenge the proceeding by taking the plea of want of notice under Section 80CPC.”

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(emphasis supplied)

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He further submitted that this judgement deals with Section 80 of the C.P.C., which is para materia of Section 326 of the Uttar Pradesh Municipalities Act, 1916. He further submitted that even if the objection is considered in light of the provisions of Section 326, no notice is required as no relief has been claimed against the Nagar Palika Parishad, a finding to this effect having been recorded in paragraph 55 of the impugned order. Therefore, the appeal deserves to be dismissed.

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Shri Himanshu Singh, holding brief for Shri Krishna Kumar Singh, learned counsel for the Nagar Palika Parishad submitted that the wall in question has been constructed by the appellants. He further submitted that the appellants have carried out illegal encroachment, for which a notice was issued to them on 17.07.2025. He further submitted that a fresh notice was also issued on the same date, directing the appellants to

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vacate the property as the same is required for the beautification of the town. He further submitted that the appellants are neither tenants nor do they possess any document to establish their title over the shop in question.

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Heard learned counsel for the parties and perused the record.

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It is evident that the Nagar Palika Parishad was impleaded as a party at a later stage, i.e., on 24.09.2014. It is also evident, on bare perusal of the averments, that the plaintiff in the original suit bearing Suit No.96 of 2012 instituted the suit without claiming any relief against the Nagar Palika Parishad and the only relief claimed is against private defendants for removal of alleged encroachment and three Dhabli and thus, the Nagar Palika Parishad, Balrampur was impleaded only as a formal party.

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The disputed property is public property and the same is vested in the Municipal Council and thus, the Nagar Palika Parishad was rightly impleaded as a party by the order of the court. The learned counsel appearing for the Nagar Palika Parishad also contended that no relief has been claimed against them in the prayer clause of the original suit.

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The extract of prayer clause in the original suit is quoted herein below :-

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"यह कि� वा�दी�गण कि�म्� न्य�य अ��तो�ष पा�� मु�श्तोह� किवा�य� ह � -

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1- यह कि� कि�क्री� बा�वातो हटवा�ए जा�� अवा�ध कि�मु�#ण भू%खण्� सं)ख्य� 104 वा 104/01 मु+ स्थि-तो दी�वा�ल, जिजासं�� लम्बा�ई 16 कि1ट वा चौ3ड़ा�ई 4 इं)चौ मु�ट� तोथा� उसंसं� सं)लग्� अवा�ध कि�मु�#ण बा�शक्ल ढ़ा�वाल�, मु�हल्ल� सिसंकिवाल ल�इं� सिचौ�� कि��ट वा�र किवा�य चौ3� बालर�मुपा�र तोथा� उसंसं� सं)लग्� अवा�ध कि�मु�#ण बा�शक्ल ढ़ा�वाल� तो� कि�तो� किवा भू%मिमु जिजासं�� चौ3० 10.4 इं)चौ हटवा�ए जा�� आदी�श बाह� वा�दी�गण खिखल�1 लग�यतो प्रदी�� कि�य� जा�वा�।

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2- यह कि� खचौ�# मु � दीमु� मु�झ वा�दी�गण �� दिदील�य� जा�वा�।

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3- यह कि� अन्य न्य�य प्रकितो��रजा� �र�� इं)सं�1 अदी�लतो ह�जा� ह� मु�झ वा�दी�गण �� प्रकितोवा�दी�गण सं� दिदील�य� जा�वा�।

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4- यह कि� उक्तो कि�क्री� �� ए� प्रकितो -��य था�� गर जा�पादी बालर�मुपा�र �� कि�क्री� एवा) आदी�श �� ल प्र�किषतो �� जा�वा�।"

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FAFO No. - 352 of 2026

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Before proceeding further, it is necessary to refer to Order VII Rule 11(d) of CPC :

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" 11. Rejection of plaint.— The plaint shall be rejected in the following cases:—

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(d) where the suit appears from the statement in the plaint to be barred by any law; ....."

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Way back in the year 1998, Hon'ble Supreme Court in the matter of Raptakos Brett & Co. Ltd. v. Ganesh Property, reported in (1998) 7 SCC 184, has observed that the averments made in the plaint, as a whole, have to be considered in order to determine whether Clause (d) of Rule 11 of Order VII is applicable.

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Hon'ble Supreme Court in the matter of Popat Kotecha Property vs. State Bank of India Staff Assn., reported in (2005) 7 SCC 510 has held that the rejection of a plaint under Order VII Rule 11(d) is an independent remedy and may be invoked at any stage of the proceedings. The relevant para is extracted herein below -

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"10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.

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11. Order 7 Rule 11 of the Code reads as follows:

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“11. Rejection of plaint.—The plaint shall be rejected in the following cases—

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(a) where it does not disclose a cause of action;

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(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

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(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;

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(d) where the suit appears from the statement in the plaint to be barred by any law;

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(e) where it is not filed in duplicate;

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(f) where the plaintiff fails to comply with the provisions of Rule 9:

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Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.”

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* * *

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25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case [(2004) 3 SCC 137] the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case."

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Hon’ble Supreme Court in the matter of Saleem Bhai v. State of Maharashtra, reported in (2003) 1 SCC 557 with reference to Order 7 Rule 11 of the Code has held as under:

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“ 9. … the relevant facts which need to be looked into for deciding an application thereunder are the averments in the

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plaint. The trial court can exercise the power … at any stage of the suit — before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage,…”

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It is trite law that no particular plea has to be considered, and the whole plaint has to be read while deciding application under Order VII Rule 11(d). Hon'ble Supreme Court in the matter of Ram Prakash Gupta v. Rajiv Kumar Gupta, reported in (2007) 10 SCC 59 has also held that Order VII Rule 11(d) of CPC makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entire plaint. Before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. The relevant para is extracted herein below:

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"21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings

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have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint."

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(emphasis added)

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In the present appeal, on perusal of the plaint and its prayer/relief clause, it is clear that the relief sought is for the removal of illegal construction raised by the private defendants over the disputed property and it is also clear from the above-settled principles of law laid down by Hon'ble Apex Court that for deciding an issue under Order VII Rule 11(d) CPC, the averments made in the plaint have to be considered as a whole and the contents of the written statement or objections cannot be relied upon in isolation.

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The plaintiff has pleaded in the suit that the suit property was purchased by them through registered sale deed and it is alleged that the defendents constructed a new wall forcibly after demolishing the existing wall over the said land without any lawful justification, with the intention to dispossess the plaintiff. From the facts stated in the plaint, it is clearly evident that the relief has been sought only against a private defendants and the Nagar Palika Parishad, Balrampur was impleaded merely as a formal party by the order of the court and no relief has been sought against them.

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With regards to the necessity of two months prior notice under the provisions of Section 326 (1) of the Uttar Pradesh Municipality Act in the present case, it is to clarify that the facts of Haji Ahmad Raza (supra) is completely different from the facts of present case. Here in the present case, the relief is sought against the private parties for removal of alleged encroachment and construction of wall and apparently the Nagar Palika Parisad is just a mere formal party who is later impleaded as a party by the order of the court. However, in the case of Haji Ahmad Raza (supra) , the suit was filled against the Municipal Board in relation to administrative or statutory work (like No, Bull, Bullock, Cow, Calf shall be slaughtered in any slaughter-house or in any other place).

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Lastly, it is also argued that the Section 80 of the C.P.C. is para materia of Section 326 of the Uttar Pradesh Municipalities Act, 1916. For this it is relevant to see both the provisions together before parting. The extract of both the provisions is as under :-

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" Section 80 of CPC

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80. Notice. — (1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of—

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(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

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(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;

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(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf;

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(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

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(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the

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case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit: Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of subsection (1).

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(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice—

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(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

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(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.

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AND

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Section 326 of the Uttar Pradesh Municipality Act, 1916

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326. Suits against (Municipality) or its officers.- (1) No suit shall be instituted against a (Municipality), or against a member, officer or servant of a (Municipality), in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two month next after notice in writing has been, in the case of a (Municipality), left at its office, and, in case a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.

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(2) If the (Municipality), member, officer or servant shall before action is commenced, have tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered, shall also pay all costs incurred by the defendant after such tender.

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(3) No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a

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declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action.

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(4) Provided that nothing in Sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding"

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On bare reading of both the provisions together, it is clear that the object of serving the notice in both the provision is almost same and thus Section 80 of the C.P.C. is para materia of Section 326 of the Uttar Pradesh Municipalities Act, 1916. In the present case, notice was not served because the Nagar Palika was not originally impleaded as a party, and no relief was sought against it. The Nagar Palika Parishad was subsequently added as defendant by an order of the Court. Therefore, in view of Smt. Rekha (supra) , the objection regarding notice under Section 326 of the Act of 1916 is available only to the Nagar Palika, Parishad and such a plea cannot be raised by a private party as it is raised in the present case.

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Apart from all these, it is trite law that the procedural technicality cannot come in the way of substantial justice and a private party cannot take a plea of procedural technicality of 2 months prior notice under section 326 of Uttar Pradesh Municipality Act. In the present case, no such notice is required as no relief was sought against the Nagar Palika Parishad. On bare perusal of the provisions of Section 326 of the Uttar Pradesh Municipality Act, there is no hesitation to hold that this defense is only available to the Nagar Palika Parishad and no private party can take such plea for want of notice wherein the relief was sought against them and not against the Nagar Palika Parishad. In the present case the Nagar Palika Parishad has not challenged the impugned order and has very fairly admitted the fact that the purpose of suit is to remove alleged encroachment by the defendants, who are private parties.

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In view of the aforesaid facts and circumstances and considering the purpose as well as relief clause of the suit, this Court does not find any

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illegality or impropriety in the impugned order. The instant First Appeal being sans merit and the same is accordingly dismissed.

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However, it is made clear that the observations made herein-above by this Court shall not come in the way of the trial court in adjudicating the suit on merit.

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(Prashant Kumar,J.)

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May 27, 2026 Anupam S/-

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Digitally signed by :- ANUPAM SINGH PATEL High Court of Judicature at Allahabad, Lucknow Bench

Hesham Ahmad @ Ehtesham and 6 Others v. Smt. Shakuntala Singh and 6 Others

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Hesham Ahmad @ Ehtesham and 6 Others v. Smt. Shakuntala Singh and 6 Others

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