Allowed

Smt Komal v. Raj Housing Board and Ors.

Rajasthan HC29 May 2024CSA/208/1999

Case brief

AI extract

What is this about?

In a second appeal, the Supreme Court of Rajasthan held that dismissing a civil suit under Order VII Rule 11 CPC for premature filing without waiting for the 60-day notice period under Section 50 of the Rajasthan Housing Board Act was erroneous. The court deemed the plaint should have been returned with an endorsement to reinstitute the suit after the notice period expired.

What did the court decide?

Impugned orders dismissing the suit are set aside. The second appeal is allowed. The trial court is directed to re-register the civil suit and proceed with it, assuming the notice period has expired.

Smt Komal Vs Raj Housing Board and Ors. — Civil Procedure and Limitation | Rajasthan HC (2024)

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[2024:RJ-JP:26454]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 208/1999

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Smt. Komal W/o Shri Garesh Kumar, 2/550, Rajasthan Housing Board Colony, Kala Kuan, Alwar Raj.

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----Appellant

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Versus

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1. Rajasthan Housing Board, Through The Chairman, Rajasthan Housing Board Office, Jyoti Nagar, Jaipur

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Rajasthan Housing Board, Through The Resident Engineer, 1-Ka-40-41, Pratap Nagar, Colony, Manu Marg, Alwar (Raj).

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Shri Shiv Dutt S/o Shri R.P/ Sharma, C/o Life Insurance Corporation, Moti Doongri Road, Alwar Raj.

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Smt. Sushila Choiani, W/o Shri Ramesh Choiani, 2/508, Rajasthan Housing Board Colony, Kala Kuan, Alwar (Raj).

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----Respondents

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For Appellant(s) : Mr. Suresh Sahani For Respondent(s) : Mr. Rakesh Sharma

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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29/05/2024

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Instant second appeal is preferred aggrieved from judgment dated 12.01.1999 in civil misc. appeal No.56/1998 passed by learned Additional District Judge No.1, Alwar whereby appeal preferred by appellant plaintiff aggrieved from judgment dated 04.03.1998 in civil suit No.246/1997 and civil misc. case No.46/220/97 passed by learned Civil Judge (Junior Division) was dismissed and the order of trial court was upheld.

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The facts giving rise to the instant case are that a civil suit under Sections 37, 38, 39 of the Specific Relief Act was filed by

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the appellant plaintiff against respondents wherein application under Order VII Rule 11 CPC was filed by Rajasthan Housing Board raising the objection that without serving a notice under Section 50 of Rajasthan Housing Board Act,1970 (hereinafter referred as ‘the Act of 1970’) civil suit was instituted, improper evaluation of the suit and also payment of insufficient court fee. The plaintiff has filed reply to the application wherein she stated that a notice was served on 10.04.1997 but due to urgency, arisen before expiry of the period as the defendant Nos. 3 and 4 are conniving with Housing Board to change the status of the property and the only option before the plaintiff was to file this civil suit.

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Learned trial court after opportunity of hearing decided the application under Order VII Rule 11 CPC on 04.03.1998 and observed that the civil suit was filed without waiting for expiry of period under the notice given by the plaintiff therefore the suit is not maintainable in wake of under Section 50 of the Act of 1970 and rejected the civil suit under Order 7 Rule 11 CPC. 4. Aggrieved from aforesaid misc. appeal was preferred by the plaintiff appellant but same was also dismissed on 12.01.1999 by the appellate court. The instant appeal is admitted on 11.08.2006 and following substantial question of law was framed:

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“Whether in the presence facts and circumstances, the provision of Section 50 of the Act, 1970 are not applicable because the same is inconsistence and inrepugnance to the provision of Code of Civil Procedure, 1908, because the provisions of Section 50 does not have the relaxation Clause in relation to the urgent matters?”

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Learned counsel for appellant submitted that the respondent has raised objection of non-serving of notice as provided under Section 50 of the Act of 1970 but the trial court and the appellate court has failed to consider that there was grave urgency and due to this grave urgency the appellant plaintiff was constrained to file a civil suit without waiting for expiry of 60 days. He also submitted that if a suit is filed before expiry of the mandatory notice period then the trial court can wait till time the period of notice is over and it committed serious illegality in dismissing the suit. He also submitted that the period of 60 days as provided under the Act was included to give opportunity to the Housing Board to act on notice for demand of justice but the period of notice cannot be treated as a barrier in seeking justice before the court of law. He also submitted that the trial court and the appellate court has failed to realise the fact that in Section 80 of CPC the relaxation is provided from mandatory notice period of 60 days in case of urgency and the plaintiff has raised this issue of urgency therefore the order of the trial court was bad in eye of law and the suit cannot be dismissed under Order VII Rule 11 CPC. He also submitted that the appellate court has not considered the grounds raised by the appellant and the provisions were misread by the courts below.

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Aforesaid contentions were opposed by learned counsel for respondent on the ground that the order passed by the court below is in accordance with law and even in case of urgency no suit can be filed without serving notice of 60 days. He also submitted that after 60 days of days, there was no bar to the suit.

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Heard learned counsel for the parties. Perused the record.

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(4 of 8)

Section 50 of the Act of 1970 provides for notice against the Board and provision is reproduced as under:

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“No person shall commence any suit against the Board or against any officer or servant of the Board or any person acting under the orders of the Board, for any thing done or purporting to have been done in pursuance of this Act, without giving to the Board officer, or servant or person two months previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained.

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A perusal of Section 50 of the Act of 1970 shows that before instituting a civil suit against the Board or any Officer under the Orders of the Board for anything done or purporting to be done in pursuant to this Act, a notice of two months prior to institution of suit is required.

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Herein this case, a civil suit was filed on 09.04.1997 and before institution of civil suit, no application for permission on urgency was filed by the plaintiff. The statement of the plaintiff in reply to the application before the trial court indicated that the notice was given on 10.04.1998, just after the institution of civil suit but before serving notice to defendants. When this application under Order VII Rule 11 CPC was considered by the trial court on 04.03.1998, till the time period of 60 days was already over. The avernment in the plaint indicated that aggrieved from lottery dated 05.03.1997 for allotment of house No.02/551 to defendant No.3, a suit was filed by the plaintiff.

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The proceedings of civil court indicated that after service of notice (process) the matter was fixed for written statement and from 04.08.1997 to 04.03.1998, written statement was not filed by the defendant.

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The language used in Section 50 of the Act of 1970 shows that no suit shall commence without giving notice to the Board, whereas Section 80 of CPC specifically provided that it is mandatory to give notice before filing of any case against Government Officer or Board to claim relief against them but Section 80 (2) CPC provides for exception and it empowers the court to exempt to entertain the suit with urgent or immediate relief against Government Body, so that the matter needs immediate attention are entertained. If on hearing, the court is satisfied with the ground of urgent or immediate relief, then it can consider and entertain the civil suit but if it is unsatisfied from the grounds raised by the plaintiff then it has to return plaint for later presentation after satisfying the compliance needed in subSection (1) of Section 80 of the CPC.

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This court while entertaining second appeal has framed question wherein it deals with provision under Section 50 of the Act of 1970 viz-a-viz Section 80 of the CPC. 14. A bare perusal of the Section 50 of the Act of 1970 indicated that nowhere it was provided that a suit of urgent nature can be filed without giving a notice. In Section 80 of CPC the exception is provided under sub-Section 2 of Section 80 of CPC thus the provision of Section 50 of the Act of 1970 are inconsistent with Section 80 of CPC. As regard to instant case is concerned, no

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application for exemption of notice was filed by the plaintiff. The alleged notice was given a day after institution of civil suit. Learned trial court without understanding the legal provision has dismissed the civil suit under Rule 11 of Order VII CPC, though the option before learned trial court was to return the plaint in case if it finds that the suit was instituted prior to expiry of 60 days as mandated under Section 50 of the Act of 1970. The plaintiff could have filed the civil suit had it been returned on 04.03.1998 therefore the trial court has committed serious error while allowing the application under Order VII Rule 11 CPC and passing an order of rejection of civil suit. Similarly the appellate court without knowing the procedural law has upheld the order passed by the trial court.

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Herein this case suit was not barred by any law rather a regulation is provided that before instituting a civil suit against the defendant Nos. 1 and 2 it is necessary for the plaintiff or aggrieved party to give a notice of 60 days. The plaintiff or aggrieved party who has given a notice can institute a civil suit thus the regulation provides for notice of 60 days before institution of suit and after giving notice, in this case the trial court which was apprised about the fact that a notice was given by the plaintiff but the suit was instituted prior to expiry of 60 days. The trial court has noted this fact in its order that the suit was prematurely instituted therefore the duty of the trial court was to return the plaint with the endorsement and after expiry of 60 days, the suit was entertainable before the trial court.

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Now after rejection of suit on 04.03.1998 we are on 29.05.2024 meaning thereby considering this appeal after 26 years and 2 months. This could be avoided by the trial court and the first appellate court by a very simple order that is to return the plaint with endorsement to institute after expiry of 60days but the trial court and the appellate court both have committed serious and grave error in the matter.

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When this application under Order VII Rule 11 CPC was disposed of on 04.03.1998 even by that date, period of 60 days was over therefore we have no option except to consider entire circumstances in the matter, so as advance the cause of justice.

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In view of discussion made hereinabove the aforesaid issue is partially decided in favour of appellant, plaintiff. 19. As a result of discussion made hereinabove the order of learned trial court and appellate court is liable to be set aside as the suit was wrongly rejected and plaint was required to be returned. Now the option before us is to direct the trial court to register the civil suit and proceed in accordance with law, assuming that the notice was served upon defendant Nos. 1 and 2, as mentioned under Section 50 of the Act of 1970.

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In view of above, instant second appeal is hereby allowed and judgment dated 04.03.1998 in civil suit No.246/1997 and civil misc. case No.46/220/1997 judgment dated 12.01.1999 in civil regular appeal No.56/1998 are hereby set aside and the civil suit is remanded and trial court is directed to re-register the civil suit and proceed in accordance with law, presuming that notice under

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Section 52 of the Act of 1970 is already served and period of 60 days is over.

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The parties are directed to appear before the learned trial court on 15.07.2024. In case any of party fails to appear, then trial court shall issue notice for appearance.

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Accordingly, instant second appeal is disposed of.

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Misc. Application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA /441

Smt Komal v. Raj Housing Board and Ors.

Case brief

What is this about?

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Smt Komal v. Raj Housing Board and Ors.

Case brief

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