Kushal Mech Vs Lisha Gurung and 8 Ors.

¶1

Page No.# 1/8

¶2

GAHC010072042023

¶3

undefined

¶4

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

¶5

Case No. : RFA/12/2023

¶6

KUSHAL MECH S/O LATE RAM CHANDRA MECH, VILL.- MORAN KUSHAL NAGAR, P.O.- MORANHAT, P.S.- MORAN, DIST.- DIBRUGARH, ASSAM.

¶7

VERSUS

¶8

LISHA GURUNG AND 8 ORS. D/O DEV KUMAR GURUNG, W/O DR. BHABEN TANTI, R/O GAUHATI, UNIVERSITY CAMPUS, JALUKBARI, GUWAHATI, KAMRUP781013, ASSAM AND ALSO AT BONGAL GAON, P.O.- BANIPUR, P.S. AND DIST.- DIBRUGARH, ASSAM.

¶9

2:BINIT KUMAR JAIN S/O LATE KAILASH CHAND JAIN

¶10

R/O BONGAL GAON P.O.- BANIPUR P.S. AND DIST.- DIBRUGARH ASSAM.

¶11

3:SHIKHA JAIN

¶12

W/O BINIT KUMAR JAIN

¶13

R/O BONGAL GAON P.O.- BANIPUR P.S. AND DIST.- DIBRUGARH ASSAM.

¶14

Page No.# 2/8

¶15

4:CIRCLE OFFICER EAST REVENUE CIRCLE DIBRUGARH.

¶16

5:DEPUTY COMMISSIONER DIBRUGARH P.O. AND DIST.- DIBRUGARH.

¶17

6:CHAIRPERSON DIBRUGARH DEVELOPMENT AUTHORITY P.O. AND DIST.- DIBRUGARH.

¶18

7:SENIOR SUB REGISTRAR DIBRUGARH OFFICE OF THE SENIOR SUB REGISTRAR DIBRUGARH.

¶19

8:SANJAY JAIN S/O LATE KAILASH CHAND JAIN

¶20

R/O BONGAL GAON

¶21

P.O.- BANIPUR

¶22

P.S. AND DIST.- DIBRUGARH ASSAM

¶23

:::BEFORE:::

¶24

HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

¶25

Advocates:

¶26

For the appellant : Ms. R. Choudhury, Advocate

¶27

For the respondents: Mr. R. Chakraborty, Advocate

¶28

Mr. A. Kakati, Advocate Mr. T.R. Gogoi, Advocate

¶29

Date on which judgment is reserved: N/A

¶30

Date of pronouncement of judgment: 17.02.2026

¶31

Whether the pronouncement is of the Operative part of the judgment :

¶32

Page No.# 3/8

¶33

Whether the full judgment has been Yes Pronounced :

¶34

Judgment & order(ORAL)

¶35

1. Heard Ms. R. Choudhury, learned counsel for the appellant. Also heard Mr. R. Chakraborty, learned counsel for the respondents No. 2, 3 and 8 and Mr. A. Kakati, learned counsel for the respondent No.1 as well as Mr. T.R. Gogoi, learned counsel appearing for the respondents No. 4, 5 and 7.

¶36

2. This appeal under Section 96 read with Order XLI Rule 1 & 2 of the Code of Civil Procedure, 1908 has been filed by the appellant Sri Kushal Mech, impugning the order dated 27.02.2023 passed by the Court of learned Civil Judge, Dibrugarh in Title Suit No. 19/2023, whereby, the plaint filed by the present appellant, as plaintiff, in the aforesaid Title Suit, was rejected as the mandatory provision of Section 60 of the Assam Town and Country Planning Act, 1959 was not complied with.

¶37

3. Ms. R. Choudhury, the learned counsel for the appellant has submitted that the present appellant as plaintiff had filed a suit against the present respondents before the Court of learned Civil Judge at Dibrugarh which was registered as TS No. 19/2023. She submits that the plaintiff has claimed to be the owner of a plot of land described in Schedule A, B and C to the plaint. She further submits that the private respondents No. 1 and 2 have fraudulently obtained fake sale deed and thereafter mutated their names in respect of the aforesaid land, therefore, the present appellant had prayed for relief of cancellation of relevant sale deeds and cancellation of mutation orders by which, the names of the respondents was mutated in respect of the aforesaid

¶38

Page No.# 4/8

¶39

land of the plaintiffs. Apart from the aforesaid relief, the present appellant had also prayed for relief of permanent injunction for restraining the present respondents No. 1, 2 and 3 from disturbing the peaceful possession of the appellant over the suit land. She submits that since there was urgency in the case and since the government officials have been made defendants in the plaint, the plaintiff had prayed for leave to file suit without issuing notice under Section 80 of the Code of Civil Procedure, 1908. She further submits that the said leave, under Section 80(2) of the Code of Civil Procedure, 1908, was granted by the trial Court by its order dated 13.02.2023.

¶40

4. Learned counsel for the appellant further submits that on 13.02.2023, the trial Court issued notice to the defendant in the aforesaid suit, fixing 24.03.2023 for service report and filing of the written statement. However, before that date, i.e., on 16.02.2023 the respondents No. 1 to 3 (the defendant No. 1 to 3 in the aforesaid suit) had filed a petition, which was registered as Petition No.799/2023, where question of maintainability was raised on the ground of non-serving of notice to the government under Section 80 of the Code of Civil Procedure, 1908 as well as non-serving of notice to defendant No.6 under Section 60 of the Assam Town and Country Planning Act, 1959.

¶41

5. The learned counsel for the appellant submits that the trial Court without taking into consideration that the summons issued to respondent No.6 i.e., the Chairperson of Dibrugarh Development Authority, Dibrugarh were yet to return to the trial Court. However, without waiting for the result of the service of summons upon the said respondents, the trial Court by the impugned order dated 27.02.2023, held that the suit is barred due to non-compliance of mandatory provision of Section 60 of the Assam Town and Country Planning Act, 1959 and rejected the suit. She submits that in case of other government

¶42

Page No.# 5/8

¶43

officials, the present appellant as plaintiff had obtained leave of the Court under Section 80(2) of the Code of Civil Procedure, 1908.

¶44

6. The learned counsel for the appellant submits that as no relief was claimed against the defendant No.6 in the suit, it was not mandatory for the plaintiff to issue notice to the said respondent under Section 60 of the Assam Town and Country Planning Act, 1959. She further submits that otherwise also, the petition filed by the respondents No. 1 to 3, which was treated as an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, could not have been filed by the said defendants and the trial Court ought to have waited till service of summons on defendant No.6 i.e., the Chairman of the Dibrugarh Development Authority, Dibrugarh. She submits that the present respondents No., 2, 3 and 8 do not have any locus standi to object regarding non-compliance of the provision of Section 60 of the Assam Town and Country Planning Act, 1959. In support of her submission, she has cited ruling of a Coordinate Bench in the case of “ Kholilur Rahman –vs- Abdul Bari Mollah & Ors.,” (judgment dated 11.04.2018 in CRP(I/O) 203/2017), wherein, a coordinate bench of this Court has held that objection regarding non-compliance of Section 80 of the Code of Civil Procedure may not be raised by private defendant in a suit as the said provision is for the benefit of government officials only and it is for the government, who should have raised objection regarding not complying with the mandate of Section 80 of CPC, 1908. She submits that same analogy may be drawn in respect of a notice to be issued under Section 60 of the Assam Town and Country Planning Act, 1959. She submits that as in the instant case, the Chairman of Dibrugarh Development Authority had not yet appeared before the trial Court, the trial Court erred in passing the impugned order, by rejecting the plaint merely on an application filed by the private respondents. She,

¶45

Page No.# 6/8

¶46

therefore, submits that the impugned order may be set aside and the Title Suit 19/2023 may be remanded back to the trial Court for conducting the trial.

¶47

7. On the other hand, Mr. R. Chakraboty, learned counsel for the private respondent has submitted that the trial Court had not made any mistake as an application under Order VII Rule 11 CPC, 1908, for rejection of plaint, may be filed by any of the defendants. In support of his submissions, he has cited ruling of the Apex Court in the case of “Samar Singh -vs- Kedarnath @ K.N. Singh and Ors., reported in 1987 SCC Online SC 638.

¶48

8. The learned counsels for the other respondents have also adopted the submissions made by Mr. R. Chakraborty. It is pertinent to mention herein that Mr. T.R. Gogoi, learned Government Advocate has submitted that he is not appearing for the respondent No. 6, though on perusal of the order-sheets of this appeal, it appears that Mr. T.R. Gogoi, the learned counsel has received notice on behalf of the respondent No.6 on 03.04.2023. Thereafter, also his name has been reflected as engaged counsel for respondent No.6 in subsequent orders.

¶49

9. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.

¶50

10. It appears that the trial Court had treated the application filed by the defendant No.1, 2 and 3, on 16.02.2023, as an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, though, no specific legal provision was quoted by the aforesaid defendants in their application. It also appears that while issuing summons to the defendants in the aforesaid suit on 13.02.2023,

¶51

Page No.# 7/8

¶52

the trial Court had fixed the next date on 24.03.2023 for service report and for filing written statement. However, it appears that the record of the Title Suit was put up before the Trial Court, on the strength of a petition (Petition No.799/2020) filed by the defendant Nos. 1, 2 and 3, on an off date i.e., 16.02.2023. Thereafter, by the impugned order dated 27.02.2023, the trial Court rejected the plaint for non-compliance of Section 60(2) of the Assam Town and Country Planning Act, 1959.

¶53

11. It appears that though, apart from the respondent No.6 (the Chairman of Dibrugarh Development Authority), there were other government officers/servants who were made defendants in the aforesaid suit. However, by order dated 13.02.2023, passed in Title Suit No. 19/2023, the trial Court had granted leave under Section 80(2) of the Code of Civil Procedure, 1908 to file the suit by waiving the notice under Section 80 of CPC, 1908. However, no such exemption was sought for against the requirement as contained in Section 60(2) of the Assam Town and Country Planning Act, 1959.

¶54

12. There is no dispute that the benefit of the provisions contained in the Section 60 of the Assam Town and Country Planning Act, 1959 could have been availed, in the aforesaid suit, only by the defendant No.6 i.e., the Chairman of Dibrugarh Development Authority, Dibrugarh. If the defendant No.6 does not raise the question of non-compliance of the requirement of Section 60 of the Assam Town and Country Planning Act, 1959, the consequences could have been different. More so, when the present appellant has not claimed any relief against the defendant No.6.

¶55

13. In the instant case, the service report in respect of the summons issued to the defendant No.6 were not received by the trial Court when the impugned order was passed and the plaint was rejected. Since the defendant No.6

¶56

Page No.# 8/8

¶57

appears to be the appropriate party, who could have raised the plea of noncompliance of Section 60 of the Assam Town and Country Planning Act, 1959, this Court is of the considered opinion that the trial Court appears to have erred in passing the impugned order even before the date fixed by it for service report in respect of summons issued to all the defendants and filing of written statement. The respondent No. 1, 2 and 3 does not appear to be proper party to raise the question of maintainability of the suit due to non-compliance of aforementioned provisions, even before, due service of notice on defendant No.6 in the aforesaid Title Suit. The trial Court should have waited for due service of summons on the defendant No.6 before passing any orders on the basis of violation of such procedural mandate, benefit of which could have been availed only by the defendant No.6 in the aforesaid suit.

¶58

14. For the discussion made and reasons stated in the foregoing paragraphs, the impugned judgment of rejection of plaint passed by the trial Court is hereby set aside.

¶59

15. The Title Suit No.19/2023 along with Misc(J) Case No.23/2023 are remanded back to the trial Court for further proceeding from the point when the impugned order was passed.

¶60

16. Send back the records of the trial Court to the trial Court along with a copy of this judgment. The appellant shall appear before the trial Court on 18.03.2026 and thereafter, he shall be given an opportunity of taking fresh steps for summoning all the respondents.

¶61

17. This appeal is accordingly disposed of.

¶62

JUDGE

¶63

Comparing Assistant

Kushal Mech v. Lisha Gurung and 8 Ors.

Case brief

What is this about?

What did the court decide?

Kushal Mech v. Lisha Gurung and 8 Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sukanya Baruah Vs Arpan Barua

Sri Atul Saikia Vs National Insurance Company Ltd.

Ayub Ali Laskar Vs the Joint Director Health Services, Hailakandi and 3 Ors.

Rafique Uddin Bhuyan Vs the State of Assam

Dasarath Prasad Vs Nazrul Hussain and 3 Ors.

Dasarath Prasad Vs Nazrul Hussain and 3 Ors.