Rajasthan High Court - Jodhpur
Punjilal Damor And Ors vs Chouhan Hari Singh S.S.P. And Ors on 29 August, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 61/2018
1. Punjilal Damor Son Of Masur Damor, Resident Of Valmiki
Colony, Dungarpur, Tehsil And District Dungarpur.
2. Bharat Damor Son Of Heeralal Damor, Resident Of New
Village Gobar, Tehsil Seemalvada, District Dungarpur
3. Amritlal Damor Son Of Pratap Damor, Resident Of New
Village Gobar, Tehsil Seemalvada, District Dungarpur
----Petitioners
Versus
1. Chouhan Hari Singh Seva Sansthan Peeth, District
Dungarpur Through Its Secretary Karnveer Singh
Chauhan Son Of Hari Singh Chauhan, Age About 28
Years, Resident Of District Dungarpur.
2. Registrar Societies, Dungarpur Through Sub-Registrar
Cooperative Societies, Dungarpur.
3. Government Of Rajasthan Through District Collector,
Dungarpur.
----Respondents
For Petitioner(s) : Mr. Manish Shishodia
For Respondent(s) : Mr. K.P. Raj Singh
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 29/08/2018 This revision petition is directed against order dated 05.03.2018 passed by Civil Judge, Dungarpur, whereby, the application filed by the petitioners under Order VII, Rule 11(d) CPC has been rejected.
The respondent-plaintiff filed a suit for declaration, permanent & mandatory injunction against the petitioners and (2 of 5) [CR-61/2018] also impleaded the Registrar Societies and the State Government through Collector as party defendants.
The petitioners filed application under Order VII, Rule 11 CPC, inter alia, questioning the maintainability of the suit in absence of notice under Section 80 CPC and a reference was made to provisions of Section 143 of the Co-operative Societies Act, 1965 ('the Act').
Reply to the application was filed contesting the averments made therein and it was submitted that the application under Section 80(2) CPC has been filed with the suit and leave has been granted by the Court.
The trial court after hearing the parties, came to the conclusion that permission in this regard was granted by this Court on 09.02.2017 and thereafter the suit has been registered. The Court was also of the opinion that as the relief claimed in the plaint essentially did not pertain to defendant Nos. 4 & 5 and they were merely proforma parties, even otherwise, the provisions have no application and, consequently, rejected the application.
It is submitted by learned counsel for the petitioners that the trial court committed error in coming to the conclusion that permission under Section 80(2) CPC has already been granted. A copy of the order-sheet dated 09.02.2017 has been produced on record to indicate the nature of leave granted. Further submissions have been made with reference to the averments made in the plaint that specific allegations have been made against defendant Nos.4 & 5 and the relief has also been claimed against them and, therefore, it cannot be said that the provisions of Section 80 CPC would have no application and/or that the trial court had already granted permission in this regard. It was (3 of 5) [CR-61/2018] prayed that the revision petition be allowed, the order impugned be set aside and the plaint be rejected.
Learned counsel for the respondents supported the order impugned. It was submitted that the petitioners have no locus standi to question the compliance/non-compliance of Section 80 CPC. Further submissions have been made that by order dated 09.02.2017 permission has already been granted by the trial court and, therefore, the objections raised in this regard have no substance.
Reliance has been placed on judgment in C Arjun Rao v. Dr. T. Ramamohana Rao & Anr. : 2003 (4) ALD 450.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
From the averments made in the plaint, specifically para 7 as well as relief claimed, apparently it cannot be said that defendant Nos.4 & 5 were mere proforma parties.
A look at the order-sheet dated 09.02.2017 also indicates that an order has been passed in a wholly mechanical manner as the same reads as follows:-
"...../kkjk 80 CPC zckn vuqefr ntZ jft- gksosA"""
The provisions of Section 80(2) CPC requires 'leave of the Court' for maintaining a plaint without serving a notice as required by Sub-section (1). Provision for grant of leave, wherever they appear in any statute, envisage that if a leave is granted, the order should reflect application of mind by the Court to the requirements of the Section, however, the order passed by the trial court is wholly cryptic and does not reflect any application of mind. The above aspect is also fortified from the observations made in the order impugned wherein the Court has come to the (4 of 5) [CR-61/2018] conclusion that defendant Nos.4 & 5 were merely proforma parties. If in the opinion of the Court, defendant Nos.4 & 5 were mere proforma parties, there was no necessity to grant leave.
However, the submissions made by learned counsel for the respondents, pertaining to lack of locus standi of the petitioners to raise the issue regarding alleged non-compliance of Section 80 CPC has substance.
It has been laid down by Division Bench of this Court on a reference made in this regard, in relation to requirement of prior notice under Section 271 of the Rajasthan Municipalities Act, 1959, in Suresh Chandra v. Hanuman Prasad : D.B. Civil Second Appeal No. 173/1986 on 09.09.2005 as under:-
"In the case of Bishandayal & Others Vs. State of Orissa & Others (2001) 1 SCC 555, their Lordships of the Hon'ble Supreme Court held that there cannot be two views that the proposition that the notice under Section 80 of the CPC can be waived.
As a result of the aforesaid discussion we answer the question referred to the Division Bench by the learned Single Judge as under, (1) Section 271 of the Act aforesaid is not a provision of public policy but one for the benefit of the municipality or the persons mentioned therein. (2) Giving of notice is a condition precedent to exercise jurisdiction. But, this being a mere procedural requirement, the same does not go to the root of jurisdiction in true sense of the term.
The indication is clear that the requirement of notice on expiry of a particular period has no jurisdictional effects.
(3) Looking to this nature of the provision of the notice the same is capable of being waived by the defendants and on such waiver the court gets a jurisdiction to entertain and try the suit. (4) The question whether in fact there is waiver or not would necessarily depend on facts of each case, and is liable to be tried by the same court if raised."
A perusal of the above would indicate that the issue/objection in this regard can only be raised by the parties for whose protection the provision has been enacted either in CPC and/or in various other provisions and as the same has no (5 of 5) [CR-61/2018] jurisdictional effect other party to the suit cannot question the maintainability of the suit on account of alleged non-compliance of provisions of the CPC/Act, inasmuch as, the said non-compliance can always be waived by the party for whose protection the provisions have been enacted. However, the said aspect can only be determined when the protected party puts in appearance and/or file its objection and/or written statement.
In view thereof, in so far as the present revision petition filed by the petitioners is concerned, the same has no substance and the same is, therefore, dismissed.
However, in case any objection, pertaining to compliance of provisions of Section 80 CPC is raised by defendant Nos. 4 & 5, the trial court would determined the same in accordance with law.
(ARUN BHANSALI),J A.K. Chouhan/-39 Powered by TCPDF (www.tcpdf.org)