Dismissed

M/S. Asian Bulls Construction and Developers Ltd. v. Nijara Dewriary @ Archana Brahma Dewriary and 7 Ors.

Gauhati HC5 Jun 2020CRP(I/O)/277/2019

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a revision petition challenging an order dismissing an application to reject a plaint under Order VII Rule 11 CPC. The Court held no palpable error justified interference, noting the plaint disclosed cause of action and Section 91 CPC was not applicable.

What did the court decide?

The revision petition is dismissed; respondents are at liberty to frame preliminary issues if necessary.

M/S. Asian Bulls Construction and Developers Ltd. Vs… — Property and Title | Gauhati HC (2020)

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Page No.# 1/7

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GAHC010196082019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(I/O) 277/2019

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1:M/S. ASIAN BULLS CONSTRUCTION AND DEVELOPERS LTD.

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A COMPANY HAVING ITS REGD OFFICE AT ROOM NO. 1A, TOP FLOOR, NILLENIUM CENTRE, DWARPUL, AIZWAL, MIZORAM AND CORPORATE OFFICE AT BELTOL, KHARGULI, NEAR BORTHAKUR CLILNIC, GUWAHATI781004 AND IS REP. BY ITS AUTHORISED REP.

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VERSUS

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1:NIJARA DEWRIARY @ ARCHANA BRAHMA DEWRIARY AND 7 ORS W/O- SRI RATNA KANTA DEWRIARY, R/O- WIRELESS, BASISTHAPUR, DISPUR, GUWAHATI- 781006, P.S- DISPUR, KAMRUP (M), ASSAM

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2:GUWAHATI MUNICIPAL CORPORATION REP. BY ITS COMMISSIONER PANBAZAR GHY- 01

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3:KALYANI BRAHMA W/O- LATE ISHAN CH BRAHMA R/O- RUKMINI NAGAR KARMABIR PATH H NO.2 OPP WIRELESS DISPUR GUWAHATI 781006 DIST- KAMRUP (M) ASSAM

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4:KALPANA BRAHMA W/O- KULENDRA BORO R/O- RUKMINI NAGAR H NO. 48 NAMGHAR PATH OPP WIRELESS

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DISPUR GUWAHATI- 781006 P.S- DISPUR DIST- KAMRUP (M) ASSAM 5:ANJANA BRAHMA W/O- PUNKHA BORO R/O- RUKMINI NAGAR H NO. 48 NAMGHAR PATH OPP WIRELESS DISPUR GUWAHATI- 781006 P.S- DISPUR DIST- KAMRUP (M) ASSAM 6:DIPAK BRAHMA S/O- LATE ISHAN CH BRAHMA R/O- RUKMINI PATH KARAMBIR PATH H NO. 2 OPP WIRELESS DISPUR GHY- 781006 P.S- DISPUR DIST- KAMRUP (M) ASSAM 7:BISWAJIT DIHIGIA S/O- LATE P N DIHIGIA R/O- H NO. 71 KHARGULI NEAR BARTHAKUR CLINIC GUWAHATI- 781004 KAMRUP (M) ASSAM 8:KASHUNG ASHANG VIVIAN @ ASHANG NAGA S/O- KEISHING JAMES LALRONG BAWL R/O- H NO. 71 KHARGULI NEAR BARTHAKUR CLINIC GUWAHATI- 781004 KAMRUP (M) ASSA

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Advocate for the Petitioner : MR A K RAI Advocate for the Respondent : SC, GMC (R2)

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BEFORE

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HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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Date : 05-06-2020

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Heard Mr. A.K. Rai, learned counsel for the petitioner. Also heard Mr. S. Bora, learned standing counsel, GMC appearing for the respondent No. 2. None has appeared for the remaining respondents.

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In this revision petition, the order dated 14-06-2019 passed by the learned Munsiff No. 2, Kamrup (M) at Guwahati in Misc. (J) Case No. 355/2017 arising out of Title Suit No. 268/2016 dismissing the application filed under Order VII Rule 11(a) and Rule (d) of the CPC praying for rejection of the plaint, has been assailed by invoking the jurisdiction of this Court under Article 227 of the Constitution of India.

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It appears that the respondent No. 1, as plaintiff, had instituted Title Suit No. 268/2016 in the court of Munsiff No. 2, Kamrup (M) at Guwahati, inter alia, praying for a decree declaring right, title and interest over the entire schedule- A land by right of purchase, on inheritance and on possession as well as a decree for recovery of possession of the schedule- B land, for permanent injunction and for other consequential reliefs. The petitioner being the defendant No. 1 in the suit, had preferred an application under Order VII Rule 11(a) and (d) CPC, praying for rejection of the plaint inter-alia on the ground that the plaint did not disclose any cause of action and that the suit was not instituted

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after complying with the requirement of Section 91 of the CPC. After a threadbare discussion on the objection raised by the petitioner the learned court below had rejected the application by holding that the plea was not sustainable. Hence, this petition.

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By referring to the impugned order, Mr. Rai submits that the learned Trial Court had failed to consider and properly deal with the objections raised by his client in their proper perspective. The petitioner’s counsel submits that the basic plea raised in the application was to the effect that the plaint did not disclose complete cause of action but the aforesaid aspect of the matter has not been properly considered by the learned court below. Moreover, submits Mr. Rai, the plaintiff not having obtained the leave of the court under Section 91 of the CPC before instituting the suit, the suit itself was not maintainable since the plaintiff is practically seeking to espouse the cause of public nuisance and wrongful act allegedly committed by the defendant No. 1/ petitioner.

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In support of his aforesaid argument, Mr. Rai has placed reliance on a decision of the Supreme Court rendered in the case of Roop Lal Sathi Vs. Nachhattar Singh reported in (1982) 3 SCC 487 to contend that unless the plaint discloses the full material facts necessary to constitute complete cause of action, the plaint is required to be rejected. By referring to another decision of this Court rendered in the case of Musstt Anjira Khatoon Hazarika Vs. Tapan Kumar Das reported in 2015 (1) GLR 133 , Mr. Rai submits that a suit filed with a prayer for removal of a public obstruction has to be essentially instituted after obtaining leave of the court under Section 91 of the CPC.

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Mr. S. Bora, learned standing counsel, GMC, on the other hand, submits that the only objection of his client in this case is to the effect that the suit was instituted without

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issuing statutory notice under Section 413 of the GMC Act.

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I have considered the submission advanced by the learned counsel for the parties and have also carefully gone through the materials available on record. At the very outset, it is to be noted herein that the suit filed by the plaintiff is for declaration of right, title and interest; for recovery of possession and for permanent injunction. In paragraph 13 of the plaint the plaintiff had made statement in support of the averments made in the previous paragraphs pertaining to cause of action. Paragraph 13 is reproduced herein below for ready reference:

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“13. That the cause of action of the suit arose on and from 21-03-2016 the date on which the demarcation notice first issued in the name of the Mother of the Plaintiff, on and from 29-06-2016 while the plaintiff filed objection before the Circle Officer, Guwahati Revenue Circle, on and from 21-07-2016 while the Circle Officer, Guwahati Revenue Circle directed the main defendants to stop construction of the passage, on and from 14-09-2016 while the Revenue Staff went to demarcate the l and of the defendants during suspension period of land demarcation as per order of the Circle Officer and even after objection raised by the plaintiff, on and from 15-10-2016 while the GMC directed the main defendants to stop construction as such construction had been illegally made by the main defendants without any permission from GMC, on and from 30-10-2016 while the GMC directed to discontinue the illegal construction and to show cause within 7 days as to why unauthorized construction should not be demolished and also thereafter in each and every day while the main defendants doing illegal and unauthorized construction over the Schedule- B land of the plaintiff.

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That the cause of action arose at Chenikuthi Hill Side, Guwahati- 3 which is within the jurisdiction of this Court and hence this suit before this Hon’ble Court.”

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The averments made in paragraph 13 conjointly read with the statement made in other paragraphs of the plaint leave no room of doubt that the plaint does mention about existences of cause of action for filing the suit. Whether such cause of action would be sufficient so as to entitle the plaintiff to any relief in the suit is all together a different

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matter and the said aspect of the matter can be gone into only at the stage of trial of the suit.

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Law is well settled that whether a plaint discloses cause of action within the meaning of Order VII Rule 11(a) of the CPC is to be ascertained by the court by looking into the plaint and by reading of the averments made therein by accepting them as correct and not on the basis of contesting facts projected by the defendant. Applying the said principle and after reading the plaint, I am of the view that the learned Trial Court was correct in rejecting the plea of the petitioner/ defendant that the plaint did not disclose any cause of action. For the above reason, the ratio laid down in the Roop Lal Sathi (Supra) in my opinion would not be attracted to the facts of this case.

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Coming to the next objection as regards non-compliance of Section 91 of the CPC, I find that in the decision of Musstt Anjira Khatoon Hazarika (Supra) the suit itself was filed with a prayer for removal of obstruction effecting the public interest and it was in such context that an observation had been made that such a suit was required to be instituted after obtaining leave of the court under Section 91 of the CPC.

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From a reading of the averments made in the plaint it, prima facie appears to this Court that the suit is not merely for removal of obstruction of public drain, but as noticed above, it is primarily for declaration of right, title and interest and for recovery of possession. As such, I am of the view that the law laid down in the case of Musstt Anjira Khatoon Hazarika (Supra) would have no bearing in the facts and circumstances of the present case.

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It is to be borne in mind that an order dismissing an application praying for rejection of a plaint filed under Order VII Rule 11 CPC is not appealable. The present petition has, therefore, been preferred under Article 227 of the Constitution of India. The jurisdiction under Article 227 of the Constitution is one of superintendence by the High Court over the subordinate courts and tribunal and therefore, unless there is palpable error in exercise of jurisdiction in the order leading to miscarriage of justice, this Court, in exercise of such jurisdiction of superintendence under Article 227 of the Constitution would not lightly interfere with such an order, even if, another view is possible in the matter.

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Having regard to the facts and circumstances of the case, I am of the view that the learned Trial Court has properly considered the objections raised by the petitioner and has rightly rejected the same by a reasoned order. The impugned order, therefore, does not call for interference.

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Consequently, this revision petition stands dismissed. However, since the issues raised by the petitioner involve mixed questions of law and facts, it is made clear that notwithstanding this order, it would be open for the defendants to press for a decision on the above issues, if necessary, by framing preliminary issues. To that extent, the defendants would be at liberty to make appropriate prayer before the learned Trial Court, in accordance with law.

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JUDGE GS

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Comparing Assistant

M/S. Asian Bulls Construction and Developers Ltd. v. Nijara Dewriary @ Archana Brahma Dewriary and 7 Ors.

Case brief

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M/S. Asian Bulls Construction and Developers Ltd. v. Nijara Dewriary @ Archana Brahma Dewriary and 7 Ors.

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