Dismissed

Municipal Council Hanumangarh v. Rajkumar Hisariya

Rajasthan HC2 Jun 2023CW/6799/2023

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging an order by an Additional Civil Judge that allowed a rejoinder filed under Order 8 Rule 9 CPC. The petitioner argued the application was defective for lack of affidavit and intended to introduce new facts, which the court rejected based on the nature of the rejoinder.

What did the court decide?

The writ petition is dismissed. All pending applications stand disposed of.

Municipal Council Hanumangarh Vs Rajkumar… — Civil Procedure and Limitation | Rajasthan HC (2023)

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[2023/RJJD/018216]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 6799/2023

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Municipal Council Hanumangarh, Tehsil And District Hanumangarh, Through Its Commissioner.

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The Commissioner, Municipal Council, Hanumangarh, Tehsil And District Hanumangarh.

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The Chairman, Municipal Council, Hanumangarh, Tehsil And District Hanumangarh.

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----Petitioners

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Versus

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Rajkumar Hisariya S/o Late Shri Banwarilal, By Caste Agarwal (Hisariya), R/o Shop No. 220, Nai Dhan Mandi, Hanumangarh Junction, Tehsil And District Hanumangarh.

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Rajesh Kumar S/o Late Shri Banwarilal, By Caste Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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Noranglal S/o Late Shri Rughlal, By Caste Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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Deendayal S/o Late Shri Rughlal, By Caste Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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Rajendra Kumar S/o Late Shri Gangabishan, By Caste Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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Rajkumar S/o Late Shri Gangabishan, By Caste Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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Smt. Santosh Devi W/o Late Shri Jagdish Rai, By Caste Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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Sanjay Kumar S/o Late Shri Jagdish Rai, By Caste Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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Arpit Kumar S/o Late Shri Jagdish Rai, By Caste Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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Rajeev Kumar S/o Late Shri Surendra Kumar, By Caste

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(2 of 6) [CW-6799/2023]

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[2023/RJJD/018216]

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Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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Sandeep S/o Late Shri Surendra Kumar, By Caste Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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Inder Kumar S/o Late Shri Omprakash, By Caste Agarwal (Hisariya), R/o Ward No. 22, Hanumangarh Town, Tehsil And District Hanumangarh.

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State Of Rajasthan, Through The District Collector, Hanumangarh.

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The Tehsildar (Revenue), Hanumangarh, Tehsil And District Hanumangarh.

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----Respondents

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For Petitioner(s)	: Mr. Chandra Shekhar Kotwani
For Respondent(s)	: Dr. Sachin Acharya, Senior Advocate
	assisted byMr. Jitendra Choudhary

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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Reserved on 29/05/2023

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Pronounced on 02/06/2023

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This writ petition has been preferred claiming the following reliefs:

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“It is therefore, most humbly and respectfully prayed that writ petition filed by the petitioners may kindly be accepted and(i) by an appropriate writ, order or direction, the impugned order dated 10.05.2023 ( Annexure-6 ) passed by the learned Additional Civil Judge, Hanumangarh, in Civil Misc. Case No.-32/2023 (Rajkumar Hisariya & Ors. versus Municipal Council, Hanumangarh & Ors.) may kindly be aside.

(3 of 6)

[2023/RJJD/018216]

[CW-6799/2023]

(ii) by an appropriate writ, order or direction, application under Order 8 Rule 9 C.P.C. ( Annexure-3 ) filed by the respondent No.1 to 12-plaintiffs-applicants may kindly be dismissed with exemplary costs and rejoinder ( Annexure-4 ) may kindly be ordered to keep in Part-”D”.

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(iii) Any other appropriate order or direction which this Hon’ble Court deem just fit and proper may kindly be passed in favour of the petitioners

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(iv) Cost of the writ petition may kindly be awarded in favour of the petitioners.”

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As per the pleaded facts, owing to heavy flood in the Ghaggar River in the year 1995, the petitioner-Municipal Council, decided to acquire certain portion of the Khatedari land in Chak 17 H.M.H. Tehsil Hanumangarh, belonging to respondent nos.1 to 12 for the purpose of development of embankment and construction of road over such embankment; the same was accordingly acquired vide order 06.05.2000. Thereafter, the petitionerMunicipal Council agreed to allot land at Stone No.-135/267 (6), Kila No.20 in lieu of the acquired land.

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2.1. Subsequently, a letter dated 27.03.2023 was issued to the respondents no.1 to 12 with respect to demarcation of the land. Against the said letter, the respondent nos. 1 to 12 instituted a civil suit along with an application under Order 39 Rules 1 & 2 read with Section 151 CPC on 25.04.2023, against the petitionerMunicipal Council and respondents nos. 13 & 14, to restrain them from dispossessing the respondent nos.1 to 12 from the land in question.

[2023/RJJD/018216]

[CW-6799/2023]

(4 of 6)

2.2. During pendency of the proceedings, the respondent nos.1 to 12 filed an application under Order 8 Rule 9 CPC along with the proposed rejoinder before the Additional Civil Judge, Hanumangarh on 01.05.2023. The petitioner-Municipal Council filed reply to the said application; however vide order 10.05.2023, the application of respondents no.1-12 was allowed. Hence, the petitioner-Municipal Council has preferred the present writ petition claiming the afore-quoted reliefs.

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Learned counsel for the petitioner submitted that the respondent nos. 1 to 12 did not file any affidavit in support of application, and thus, the said application itself was defective; hence, on that count alone, the same was liable to be dismissed.

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3.1. It was further submitted that it is a settled principle of law that a party cannot be allowed to set up a new case by way of filing rejoinder, and since the petitioner-Municipal Council did not bring any new facts in its reply to the suit, the respondent nos.1 to 12 cannot be allowed to file a rejoinder bringing the new facts. 3.2. Learned counsel, in order to fortify his submissions, placed reliance on the judgment rendered by a Coordinate Bench of this Hon’ble Court in the case of State of Rajasthan & Anr. v.

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Mohammed Ikbal & Ors. (S.B. Civil Revision No. 1151/1997 , decided on 04.03.1998).

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On the other hand, Dr. Sachin Acharya, learned Senior Counsel assisted by Mr. Jitendra Choudhary, appearing for the respondent nos. 1 to 12 submitted that the rejoinder in question was filed only to reply to the issues raised by the petitionerMunicipal Council in their reply to the application under Order 39

[2023/RJJD/018216]

[CW-6799/2023]

(5 of 6)

Rules 1 & 2 CPC, and thus, no new facts were brought before the learned Court below, by way of the said rejoinder nor was there any action on part of the respondent nos. 1 to 12 to change the nature of the suit.

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4.1. In support of his submissions, learned Senior Counsel relied upon the judgment of the coordinate bench of this Hon’ble Court in Yogesh Tripathi v. Mangi Lal & Ors. (S.B. Civil Writ Petition No. 4858/2015 decided on 02.11.2017).

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Heard the learned counsel for the parties as well as perused the record of the case along with the judgments cited at the bar. 6. This Court observes that the respondent nos. 1 to 12 filed a civil suit against the petitioner-Municipal Council, as above, and along therewith an application under Order 39 Rules 1 & 2 read with Section 151 CPC was also filed seeking to restrain the petitioner-Municipal Council from dispossessing the them from the land in question; a reply was filed to the said application. In furtherance, the respondent nos. 1 to 12 filed an application under Order 8 Rule 9 along with proposed rejoinder and the same was allowed by the learned Court below vide the impugned order 10.05.2023.

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This Court further observes that as per the observations of the learned Court below, the respondent nos.1-12 had filed a rejoinder wherein no new facts were brought before the Court in the form of amendment of pleadings, through the said rejoinder. In furtherance, a permission was sought to clarify the points raised in the reply of the petitioner-Municipal Council and a copy of the proposed rejoinder was filed along with the application

(6 of 6)

[2023/RJJD/018216]

[CW-6799/2023]

under Order 8 Rule 9 CPC; thus, the possibility of establishing a new case and changing the nature of the suit was not visible. It was further observed that since the litigation is still at its preliminary stage, thus no adverse affect would take place to the interests of the parties, if such rejoinder is taken on record.

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The judgment cited on behalf of the petitioner-Municipal Council also does not render any assistance to its case in the present petition.

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Thus, in light of the aforesaid observations and looking into the factual matrix of the case, this Court does not find it a fit case so to grant any relief to the petitioner in the present petition.

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Consequently the present petition is dismissed. All pending applications stand disposed of.

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(DR.PUSHPENDRA SINGH BHATI), J.

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SKant/-

Municipal Council Hanumangarh v. Rajkumar Hisariya

Case brief

What is this about?

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Municipal Council Hanumangarh v. Rajkumar Hisariya

Case brief

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