Madhya Pradesh High Court
Municipal Corporation Katni vs Mahendra Kumar Champuria on 4 September, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
NEUTRAL CITATION NO. 2024:MPHC-JBP:45271
1 MA-684-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 4 th OF SEPTEMBER, 2024
MISC. APPEAL No. 684 of 2021
MUNICIPAL CORPORATION KATNI
Versus
MAHENDRA KUMAR CHAMPURIA AND OTHERS
Appearance:
Shri Prashant Singh - Advocate General with Shri Harpreet Singh Ruprah-
Additional Advocate General & Parag Tiwari- Advocate for petitioner.
Shri Jaideep Sirpurkar - Advocate for respondent Nos.1 & 16.
Shri S.P.Singh - Advocate for Respondents Nos.11-15 and Respondent Nos.17-24.
ORDER
Appellant-Municipal Corporation Katni has filed this appeal under Order 43 Rule 1(t) of Code of Civil Procedure against the order dated 25.11.2020 passed by VIII th Additional District Judge, Katni in MJC No.20/2015.
2. Brief facts of the case are as under :
"A civil suit was filed on 31.01.1988 against defendant No.1, which is Town Improvement Trust, Katni and defendant Nos.2, 3 & 4, who are employees of Town Improvement Trust. Suit was filed for permanent injunction and damages, which was registered as 55A/04 and same was dismissed by judgment and decree dated 31.01.2005. Trial Court held that suit for injunction, without any relief for declaration, is not maintainable as per Section 34 of Specific Relief Act. Plaintiffs being aggrieved by judgment and decree preferred an appeal, which was registered as Appeal No.58-A/2012. Appellate Court decreed the suit on 10.07.2015 and held that plaintiffs are owner in possession of the disputed Signature Not Verified Signed by: NEETI TIWARI Signing time: 19-09-2024 10:37:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:45271 2 MA-684-2021 land i.e. Khasra No.285/3 measuring 7.082 hectare and restrained orders were issued against respondent Nos.1 to 4 for not interfering in possession. Appellant herein filed an application before appellate Court under Order 41 Rule 21 read with Section 151 of CPC for rehearing and readmission of the appeal. Another application was filed under Section 146 read with Section 151 of CPC. In said applications, it was stated that property in question is already vested in Town Improvement Trust and Civil Court does not have jurisdiction to hear the matter. It is also submitted that Town Improvement Trust was dissolved on 01.08.1994. After dissolution of Town Improvement Trust, municipal corporation Katni was not made a party in the case. Hearing of the appeal was done violating the rights of natural justice of corporation. In these circumstances, judgment dated 10.07.2015 passed in appeal and its decree be set-aside and applicant be heard before appellate Court. Said applications filed by appellant was considered by Court and same was dismissed. Order of dismissal dated 25.11.2020 passed in MJC No.20/2015 is under challenge in this miscellaneous appeal."
3 . Learned Advocate General appearing for Municipal Corporation Katni submitted that Town Improvement Trust was dissolved on 01.08.1994 and all rights and liabilities were vested in municipal corporation Katni, therefore, appellant was necessary party. Appellate Court had committed an error in proceeding with the matter and deciding the case on its merits. Town Improvement Trust was not in existence from 1994 and judgment and decree dated 10.07.2015 is a nullity and same be set-aside. It is further submitted that it is duty of plaintiff to implead municipal corporation Katni as party in the case and appeal ought to have been dismissed as non-joinder of necessary party. It is also submitted that Town Improvement Trust Katni was also not made a party. Further, court below had committed an error in rejecting the applications on grounds of limitation as same was not filed within a period of 30 days. Trial Court ought to have adopted a liberal view Signature Not Verified Signed by: NEETI TIWARI Signing time: 19-09-2024 10:37:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:45271 3 MA-684-2021 in respect of litigation and could not have rejected the application merely on technical grounds. Property is acquired by Town Improvement Trust and compensation has already been paid. Civil Court did not have any jurisdiction to deal with civil suit and appeal. No notice was issued to municipal corporation Katni and principle of nature justice has been violated. On basis of aforesaid grounds raised, learned Advocate General appearing for municipal corporation Katni prayed for setting aside the order dated 25.11.2020 and prayer is made for allowing the applications filed under Order 41 Rule 21 read with Section 151 of CPC and application filed under Section 146 read with 151 of CPC and remanding the matter back to appellate Court to rehear the same on merits.
4. Counsel appearing for respondent relied upon Section 3 of Madhya Pradesh Town Improvement Trust Repeal Act, 1994. It is submitted by him that Repeal Act was brought into force on 01.08.1994 and Town Improvement Trust was dissolved. As per Section 3 of Repeal Act, all assets and liabilities of Town Improvement Trust Katni vested in municipalities of the area, therefore, municipalities will have all the powers to take necessary possession of and recover and deal with assets of Town Improvement Trust. Town Improvement Trust was party before the trial Court as well as before appellate Court. Counsel for Town Improvement Trust as well as for Municipal Corporation, Katni appeared and argued the case. Proper opportunity of hearing was provided. It cannot be said that rights of natural justice has been violated or there was non-joinder of necessary party in the case. Municipal corporation, Katni represented its case in suit as well as in Signature Not Verified Signed by: NEETI TIWARI Signing time: 19-09-2024 10:37:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:45271 4 MA-684-2021 appeal. Appeal which was filed before appellate Court was also delayed. No explanation has been offered for delay and no error has been committed by court below in dismissing applications filed by appellant. A well reasoned and proper order has been passed in MJC No.20/15 dated 25.11.2020. This Court may not interfere with said order and miscellaneous appeal filed by appellant be dismissed.
5. Heard learned counsel for parties.
6 . On going through facts and circumstances of the case, it is found that civil suit bearing no.55-A/2004 was filed for permanent injunction and damages. Cause title was Mahendra Kumar Vs. President Town Improvement Trust. Defendant No.1 was Town Improvement Trust and defendant Nos.2, 3 & 4 were officials of Town Improvement Trust. Said civil suit was heard and finally dismissed vide judgment and decree dated 31.01.2005 on grounds that suit for permanent injunction without seeking any declaration is not maintainable. Appeal was filed against said judgment and decree and after hearing the parties on merits, appeal was allowed and suit was decreed. Plaintiffs were held to be owner of property in possession and permanent injunction was also issued against respondent Nos.1 to 4. No second appeal was filed against judgment and decree dated 10.07.2015. Appellant preferred an application under Order 41 Rule 21 read with Section 151 of CPC and another application under Section 146 read with Section 151 of CPC. By filing said applications, prayer was made for rehearing of the appeal as judgment and decree was passed ex-parte without granting proper opportunity of hearing to municipal corporation Katni and further ground of Signature Not Verified Signed by: NEETI TIWARI Signing time: 19-09-2024 10:37:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:45271 5 MA-684-2021 non-joinder of necessary party and vesting of land with Town Improvement Trust was also taken in said application. Said applications were considered in detail in MJC No.20/2015 and applications were dismissed vide order dated 25.11.2020. On going through orders and records of the case, it is found that suit was filed on 31.01.1988 much before dissolution of Town Improvement Trust. Town Improvement Trust and its officials were made party in said suit. During pendency of suit, Town Improvement Trust was dissolved i.e. on 01.08.1994. Section 3 of Madhya Pradesh Town Improvement Trust Repeal Act, 1994 lays down as under :
3. Repeal and Savings -
(1) On the appointed day the Madhya Pradesh Town Improvement Trusts Act, 1960 shall stand repealed and all the Town Improvement Trusts shall stand dissolved.
(2) All assets and liabilities of the Town Improvement Trusts on the appointed day shall stand vested in the municipality in that area and such municipality shall have all powers necessary to take possession of, recover and deal with such assets and discharge such liabilities.
(3) Any proceedings pending immediately before the appointed day to which the Town Improvement Trust was a party shall be continued as if the Municipality was a party thereof in lieu of the Town Improvement Trust.
Provided that the proceedings pending immediately before Signature Not Verified Signed by: NEETI TIWARI Signing time: 19-09-2024 10:37:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:45271 6 MA-684-2021 the appointed day, before the Tribunal constituted under Section 73 of the repealed act shall be continued and disposed by the Court of District Judge of the concerned District where the acquired land is situated as if it is a reference made to that court under section 18 of the Land Acquisition Act 1894.
From aforesaid provision of the Act, it is clear that all the assets and liabilities of Town Improvement Trust on appointed day vested in municipalities in the area and municipalities shall have all powers to take possession of and deal with assets and discharge such liabilities. Further if any proceedings were pending before any Court of law from 01.08.1994, then said proceedings be continued as is municipality was party in lieu of Town Improvement Trust. In view of aforesaid provisions, it cannot be said that there was non-joinder of party as municipal corporation Katni stepped into the shoes of Town Improvement Trust by virtue of Section 3 of Act of 1994. In civil suit, counsel appearing for Town Improvement Trust was given hearing and officers of Town Improvement Trust and municipal corporation Katni was also represented by their lawyers. On going through the records of appeal, it is found that in suit, on 13.04.1988, Shri R.P.Garg - Advocate and Shri R.P. Urmaliya-Advocate appeared for defendants nos.1 to 4 and they continued their appearance till 26.11.1999 even after dissolution of Town Improvement Trust. None appeared after 23.12.1999, therefore, Court proceeded ex-parte. From 23.12.1999 to 31.01.2005, no application was filed by Town Improvement Trust or by corporation to get ex-parte Signature Not Verified Signed by: NEETI TIWARI Signing time: 19-09-2024 10:37:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:45271 7 MA-684-2021 order set-aside. Thereafter, final judgment and decree was passed in the case on 31.01.2005, which was under challenge in appeal No.58A/2012. In appeal also i.e. on 29.10.2005, Advocate-R.K.Urmaliya appeared for respondent No.1 i.e. Town Improvement Trust/municipal corporation Katni and in arguments also Shri S.K.Jaiswal appeared for parties. Government officials, who were now representing municipal corporation Katni were also represented by their lawyers. On 09.11.2010, Shri Gyenendra Tiwari- AGP appeared for municipal corporation Katni (Town Improvement Trust) and Respondent Nos.2 to 4, who were officials were also represented by their lawyers. On 15.12.2010 also, Shri Gyanendra Tiwari-AGP appeared for Trust and Municipal corporation and Shri S.K.Jaiswal-Advocate appeared for officers of the municipal corporation Katni. Case was listed for final arguments on 24.06.2015 and on said date also, Shri S.K.Jaiswal appeared for municipal corporation Katni. It was only on 07.07.2015 that none appeared for municipal corporation Katni. Shri Gyanendra Tiwari-AGP appeared for officials of municipal corporation Katni. Court proceeded ex- parte as none appeared for respondent no.1 and thereafter, final judgment and decree in appeal was pronounced and appeal was allowed.
7 . On going through aforesaid factual aspects of the case, it is clear that municipal corporation Katni stepped into the shoes of Town Improvement Trust. Municipal corporation Katni and officials of municipal corporation Katni were represented by their counsel in suit as well as in appeal and they were given adequate and proper opportunity of hearing. There was no non-joinder of necessary party. Applications under Order 41 Signature Not Verified Signed by: NEETI TIWARI Signing time: 19-09-2024 10:37:01 NEUTRAL CITATION NO. 2024:MPHC-JBP:45271 8 MA-684-2021 Rule 21 read with Section 151 of CPC can be allowed only if notice is not duly served or counsel are prevented by sufficient cause when appeal was called for hearing. None of these two grounds were available to appellant in the case. Further appellate Court found that appeal was also barred by limitation as same was not filed within a period of 30 days. No error can be found in the order dated 25.11.2020 passed in MJC No.20/2015. Appellant had liberty to prefer an appeal against judgment and decree dated 10.07.2015 passed in Appeal No.58-A/12.
8 . In view of aforesaid circumstances, miscellaneous appeal is dismissed.
(VISHAL DHAGAT) JUDGE nd Signature Not Verified Signed by: NEETI TIWARI Signing time: 19-09-2024 10:37:01