Allowed

U.O.I. v. U.I.T.Sriganganagar

Rajasthan HC22 Feb 2013CMA/404/2010

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed an appeal against an order quashing a suit for declaration and injunction. The Court held that the trial court erred in ignoring Section 98(4) of the Urban Improvement Act, 1959, which exempts suits where relief is an injunction and notice would defeat the object. The plaint was restored.

What did the court decide?

Order dated 09.03.2010 set aside; Civil Original Suit No.4/2010 restored to trial court for expeditious hearing.

U.O.I. Vs U.I.T.Sriganganagar — Civil Procedure and Limitation | Rajasthan HC (2013)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

: J U D G M E N T :

¶4

S.B. CIVIL MISC. APPEAL NO.404/2010

¶5

Union of India

¶6

(Department of Post & Telegraph), Sri Ganganagar

¶7

Vs.

¶8

U.I.T., Sri Ganganagar.

Date of Order

22^nd February, 2013

PRESENT

HON'BLE MR. JUSTICE ARUN BHANSALI

¶13

Mr. Ankur Mathur for Mr. V.K. Mathur, for the appellant. Mr. Dron Kaushik, for the respondent.

¶14

BY THE COURT:

¶15

This appeal has been filed by the appellant aggrieved by the order dated 09.03.2010 passed by the Additional District Judge (Fast Track) No.2, Sri Ganganagar ('the trial court'), whereby, the plaint filed by it has been ordered to be returned under the provisions of Order VII, Rule 10 CPC.

¶16

The brief facts of the case are that the appellant filed a suit for declaration and injunction against the respondent-UIT. An application under Order VII, Rule 11(d) CPC was filed by the respondent-UIT that the plaintiff Union of India had not complied with the provisions of Section 98 of the Urban Improvement Act , 1959 ('the Act') and, therefore, the suit was barred by law.

¶17

¶18

The trial court after hearing the parties and accepting the submissions of the UIT, came to the conclusion that in absence of notice under Section 98 of the Act, the suit was not maintainable and, therefore, directed return of plaint by the impugned order.

¶19

It is submitted by learned counsel for the appellant that the order impugned passed by the trial court is ex facie against the express provisions of law and the same therefore, deserves to be set aside. It was submitted that while passing the impugned order the trial court has ignored provisions of Subsection (4) of Section 98 of the Act, which contemplates a situation where only relief claimed in a suit is an injunction and the object of the said suit would be defeated by giving notice under Sub-section (1), then the said provision is not applicable. The suit filed by the appellant was of emergent nature, as it had filed the said suit seeking injunction against cancellation of allotment order and its dispossession in pursuance to the said cancellation and, therefore, provisions of Section 98(4) were clearly attracted.

¶20

On the other hand, learned counsel for the respondent UIT submitted that though the learned trial court has not dealt with the provisions of Sub-section (4) of Section 98 of the Act, but the facts of the case were such that the trial court was justified in seeking compliance of provisions of Section 98 of the Act and, therefore, the order impugned does not call for any interference.

¶21

Having heard learned counsel for the parties, perusing the

¶22

¶23

order impugned and the material placed on record, the order impugned cannot be sustained.

¶24

Section 98 of the Act reads as under:-

¶25

“ 98. Notice of suit against Trust, etc.- (1) No suit shall be instituted against the Trust or any Trustee, or any person associated with the Trust under Section 19 or any member of a Committee appointed under Section 20 or any officer or servant of the Trust, or any person acting under the direction of the Trust or of the Chairman or of any officer or servant of the Trust in respect of an act purporting to be done under this Act, until the expiration of two months next after notice in writing has been in the case of a Trust, left at its office and, in any other case, delivered to or left at the office or place, of the abode of the person to be sued, 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.

¶26

(2) If the Trust or other person referred to in sub-section (1) shall, before the action is commenced have tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered and shall also pay all costs incurred by the defendant after such tender.

¶27

(3) No action such as is described in sub-section (1) shall, unless it is an action for the recovery of immovable property or of a declaration of title thereon, be commenced otherwise than within six months next after the accrual of the cause of action therefor.

¶28

(4) Nothing in sub-section (1) shall be construed to apply to a suit wherein the only relief claimed in an injunction of which the object would be defeated by the giving of the notice of the postponement of the commencement of the suit or proceeding.”

¶29

The provisions of section provide for prior notice before filing a suit against the Trust. However, Sub-section (4) of Section 98 of the Act provides an exception to the main provision 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 giving of the notice or postponement of the commencement of the suit or proceeding.

¶30

Admittedly, the plaintiff in the suit came out with a case for urgency to approach the Court and consideration of its

¶31

¶32

application under Order XXXIX, Rule 1 and 2 CPC. However, the trial court while deciding the application filed by the respondent under Order VII, Rule 11 CPC has not even considered the provision of Sub-section (4) and has by merely reiterating the main provision of Section 98 has allowed the application and ordered return of plaint under Order VII, Rule 10 CPC. The approach of the trial court is clearly contrary to the express provision.

¶33

In that view of the matter, the order impugned dated 09.03.2010 is set aside. The Civil Original Suit No.4/2010 [U.O.I. (Department of Post) Vs. UIT] is ordered to be restored back to the original number before the trial court, who shall now proceed with the suit expeditiously as the matter involves disputes between two public bodies.

¶34

The appeal is allowed in above terms. No costs.

¶35

(ARUN BHANSALI), J.

¶36

A.K.Chouhan/- 102

U.O.I. v. U.I.T.Sriganganagar

Case brief

What is this about?

What did the court decide?

U.O.I. v. U.I.T.Sriganganagar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mst. Kamla Vs Mst. Mangi Bai and Ors.

Moti Lal Vs Raju Ram and Ors.

Smt. Ganga Vs Hukma Ram and Ors.

Kaidar Nath and Ors. Vs Amar Nath and Ors.

Mangilal Vs Ram Narain and Ors.

U.O.I. Vs U.I.T.Udaipur