Madhya Pradesh High Court
Baldev Singh Bhatia vs The Commissioner, Nagar Palika Nigam ... on 30 June, 2000
Equivalent citations: 2001(5)MPHT206, AIR 2001 (NOC) 66 (MP), 2001 A I H C 2136
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. The sole point involved in this revision petition is whether the refusal of prayer to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as 'the Code') by the learned Second Additional District Judge, Raipur in Civil Suit No. 21-A/99 is justified.
2. A brief reference to the factual aspects as stated by the parties would suffice.
3. The non-applicant No. 3, Saddruddin Farista, instituted the aforesaid suit for declaration that the lease hold rights in respect of the suit plot are valid and subsist and the letters dated 2-4-99 and 11-6-99 issued by the Defendant No. 1, Municipal Corporation, Raipur, are without any legal authority and sanction, and further for permanent injunction restraining the defendants from invalidating, interfering with or disturbing the lease hold interest of the plaintiff in respect of the suit plot without due process of law. It is setforth in the plaint that the defendant No. 1 owns the plot No. 11/2 in Block No. 94 admeasuring an area of 1250 sq. ft. situate at Old Bus Stand, G.E. Road, Raipur and this parcel of land was let out to one Rajab AH at the rate of Rs. 50/- per month. After the death of said Rajab Ali the said land was given on lease to the plaintiff at the same rate of rent under an agreement dated 15-6-79. It is also putforth in the plaint that on 16-2-71 the defendant No. 1 had granted permission in writing to the predecessor in title, Rajab Ali, to let out the said plot on a sub lease, and accordingly, Rajab Ali created sub lease in favour of M/s Caltex (India) Limited. After the sub lease was granted in favour of M/s Caltex (India) Limited, the said company had put the defendant No. 2 in possession of the said land to run a petrol pump over there. It is also pleaded that by virtue of the provision as contained in Sections 7 and 9 of the Caltex (Acquisition of Shares of Caltex Oil Refining (India) Ltd. & of the undertakings in India of Caltex (India) Ltd. Act, 1977 read with Notification issued by Government of India, Ministry of Petroleum & Chemicals, New Delhi, in the year 1977 the Hindustan Petroleum Corporation came into existence and acquired all the rights of the sub-lessee created by Rajab Ali Farista. According to the plaintiff he has not contravened any condition of the lease granted to him and the lessor has regularly been accepting the rent from the plaintiff. It is also putforth that Hindustan Petroleum Corporation is a sub tenant of the plaintiff and there has been recognition as such. It is averred that on 12-4-99 the plaintiff received a registered letter dated 2-4-99 issued by the defendant No. 1, the Municipal Corporation, Raipur, alleging that the plaintiff instead of using the suit plot for his own business has sub-leased to the defendant No. 2 resulting in the breach of the lease dated 15-6-79 granted to him by the defendant No. 1 and the plaintiff was asked to show cause why the lease should not be revoked. The plaintiff sent a written reply on 16-4-99 to the defendant No. 1 by registered post with acknowledgment due wherein he claimed to be the sub-lessee in respect of the suit plot. After making many an averment the plaintiff eventually, made the prayers as have already been indicated earlier. After the suit was admitted, the defendant, Baldev Singh Bhatia, filed an application under Order VII Rule 11 of the Code of Civil Procedure contending, inter alia, that the suit against the Municipal Corporation is not maintainable without service of notice as required under Section 401 of the Madhya Pradesh Municipal Corporation Act, 1956 and further that the plaintiff has valued the suit differently for jurisdiction and court-fees which is not permissible under Section 8 of the Suits Valuation Act and, therefore, the plaint should be rejected.
4. A reply was filed by the plaintiff stating therein that the plaintiff has already served a notice under Section 401 of the Municipal Corporation Act, and therefore, there is proper statutory compliance. It was also putforth in the reply that the Court by order dated 3-7-99 has held that the suit was properly valued and was within the jurisdiction of the Court, and hence, was not further questionable. It was also stated that Section 8 of the Suits Valuation Act is not applicable and the plaintiff has rightly valued the suit.
5. The learned Trial Judge upon hearing the learned counsel for the parties came to hold that before presentation of the plaint, notice under Section 401 was served on the Municipal Corporation but before expiry of the time the suit was filed after obtaining leave from the Court. As far as second aspect is concerned the Trial Court came to hold that the plaintiff has rightly valued the suit differently for the purpose of jurisdiction and court-fees. While holding so the Court below also kept the issue open by permitting the defendants to raise the plea in the written statement.
6. I have heard Mr. Alok Aradhe, learned counsel for the applicant, Mr. Ajit Singh, learned counsel for the non-applicant No. 1, Mr. Bishma Kinger, learned counsel for the non-applicant No. 2, and Mrs. K. Menon, learned counsel for the non-applicant No. 3.
7. It is not disputed at the Bar that the suit was filed before stipulated time as enjoined under Section 401 of the Municipal Corporation Act. It is appropriate at this juncture to reproduce Section 401 of the Municipal Corporation Act it reads as under:--
"401. Notice, limitation and tender of amends in suit against Corporation, etc.-- (1) No suit shall be instituted against the Corporation, the Standing Committee, or any Corporation officer or servant, or any person acting under the direction of the Corporation, the Standing Committee or any municipal officer or servant, in respect of any act done or purporting to have been done in pursuance or execution or intended execution of this Act, or in respect of any alleged neglect or default in the execution of this Act or any rule or bye law made thereunder until the expiration of one month next after notice in writing has been delivered or left at the Chief Corporation office or at the residence of such officer, servant or person standing with adequate particulars,--
(a) the cause of action;
(b) the name and residence of the intending plaintiff and of his advocate, pleader or agent, if any, for the purpose of the suit; and
(c) the relief which he claims.
(2) Every such suit shall be commenced within six months next after the accrual of the cause of action, and the plaint therein shall contain a statement that a notice has been delivered or left as required by Sub-section (1).
(3) If the Corporation or any person to whom any notice is given under Sub-section (1) has tendered sufficient amends to the plaintiff before the suit is instituted, the suit shall be dismissed.
(4) If the defendant in any such suit is the Commissioner or any other Corporation officer or servant, payment of any sum or part thereof payable by him in or in consequence of the suit may, with the sanction of the Standing Committee, be made from the Municipal Fund."
On a plain reading of the aforesaid provision it is luminously clear that two types of limitations have been provided under the aforesaid section, namely, no suit can be instituted until the expiration of one month next after notice in writing has been delivered and such a suit has to be filed within six months after the accrual of the cause of action.
8. The moot question that arises for consideration is whether the plaintiff could have instituted the suit before expiration of one month. In this context, I may profitably refer to Section 319 of the M.P. Municipalities Act, 1961. It reads as under:-
"319. Bar of suit in absence of notice.-- (1) No suit shall be instituted against any Council or any Councillor, officer or servant thereof or any person acting under the direction of any such Council, Councillor, officer or servant for anything done or purporting to be done under this Act, until the expiration of two months next after a notice, in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a Council delivered or left at its office, and, in the case of any such member, officer, servant or person as aforesaid, delivered to him or usual place of abode; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) Every such suit shall be dismissed unless it is instituted within eight months from the date of the accrual of the alleged cause of action.
(3) Nothing in this section shall be deemed to apply to any suit instituted under Section 54 of the Specific Relief Act, 1877 (I of 1877)."
On a bare reading of the aforesaid provision it is apparent that sub section 3 makes it absolutely clear that nothing in Section 319 shall be deemed to apply to any suit instituted under Section 54 of the Specific Relief Act, 1877. Thus, it is quite different from the language used in the Municipal Corporation Act. That apart, in the language of Section 401 of the Act there is no provision for grant of leave as has been envisaged under Section 80 of the Code of Civil Procedure. Sub-section 2 of Section 80 of the Code reads as under :
"(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in repect of any act purporting to be done by such public officer in this official capacity, may be instituted, with the leave of the Court, without serving any notice as required by Sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of Sub-section (1)."
Thus, in the aforesaid Sub-section the Court has jurisdiction to grant leave to the plaintiff to file a suit without serving any notice as required under Sub-section but the Court is not authorised to grant any relief in the suit interim or otherwise except after giving the Government or Public Officer the reasonable opportunity of showing cause. Be that as it may, there is provision for grant of leave to institute the suit. It is to be noted that this provision has been inserted by the Code of Civil Procedure (Amendment Act, 1976) (104 of 1976). Prior to that suit was to be filed after service of notice of two months. If a suit is filed before expiration of two months it is not maintainable. In this context, I may refer to the decision rendered in the case of Bihari Chowdhary and Anr. v. State of Bihar and Ors., AIR 1984 SC 1043 wherein their Lordships have held as follows:--
"The effect of the Section is clearly to impose a bar against the institution of a suit against the Government or a public officer in respect of any act purported to be done by him in his official capacity until the expiration of two months after notice in writing has been delivered to or left at the office of the Secretary to Government or Collector of the concerned district and in the case of a public officer delivered to him or left at his office, stating the particulars enumerated in the last part of Sub-section (1) of the section. When we examine the scheme of the section it becomes obvious that the section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay. The Government unlike private parties, is expected to consider the matter covered by the notice in most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the period of two months allowed by the section as to whether the claim is just and reasonable and the contemplated suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim should be resisted by fighting out the suit if and when it is instituted. There is clearly a public purpose underlying the mandatory provision contained in the section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months' time to Government or a public officer before a suit can be instituted against them. The object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.
4. When the language used in the Statute is clear and unambiguous, it is the plain duty of the Court to give effect to it and considerations of hardship will not be a legitimate ground for not faithfully implementing the mandate of the legislature."
After referring to various decisions of Privy Council and earlier decisions of certain High Courts their Lordships further expressed thus :-
"6. It must now be regarded as settled law that a suit against the Government or a public officer, to which the requirement of a prior notice under Section 80, C.P.C. is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable."
(Emphasis supplied) In my considered view, the ratio laid down in the aforesaid case applies in full force to the case at hand. The finding of the learned Trial Judge that leave was granted before expiry of one month by the Court, and therefore, the suit is maintainable is not correct. The Court had no authority to grant leave to file the suit before expiration of one month as such provision is not envisaged in Section 401 of the Municipal Corporation Act, 1956.
9. The next question relates to question of court-fees. The plaintiff has filed the suit for declaration and permanent injunction. The relief prayed for by the plaintiff has been enumerated in great detail at the beginning. True it is, it is open to the plaintiff to value the suit for declaration according to his own choice but in the present suit the plaintiff has valued the suit at the rate of Rs. 1,00,620/- and has added the consequential relief of injunction. Though the plaintiff is at liberty to put the valuation but the same valuation should not be arbitrary or capricious. It is to be borne in the mind that the plaintiff is seeking lease hold right in respect of an area in question. I may refer to the decision rendered in the case of Sathappa Chettiar v. Ramnathan Chettiar, 1958 SCR 1021 = AIR 1958 SC 245 wherein the Apex Court held as under:--
"If the scheme laid down for the computation of fees payable in suits covered by the several Sub-sections of Section 7 is considered, it would be clear that, in respect of suits falling under Sub-section (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of Court-fees."
In the case of Badrilal v. State, 1963 JLJ 674 the Division Bench has held as under:-
"9 ....... We agree that there are cases where there is a difference between the value of the thing affected by the action and the value of the relief sought in respect thereof. But we are of the view that, speaking generally where the relief sought itself has a real money value which can be objectively ascertained, that value of the relief and any other value ascribed to it is arbitrary and unreasonable. So, we think that where a plaintiff is sought to be made liable either under a deed or a decree for a specified amount and he seeks to avoid that liability, the value of the relief is the extent of loss, to which but for the suit he would be subjected and from which the wants to be received. So, in Ratansingh v. Raghurajsingh, ILR 1945 Nag. 975 at p. 988, a Division Bench of this Court stated:
"The decision of the Judicial Commissioner's Court and the High Court has been that where the plaintiff wants to escape liability under a deed or a decree for a particular amount, he must pay ad valorem Court-fee on the amount of such liability and he cannot be permitted to put an arbitrary valuation of the relief under Section 7(iv)(c) of the Act."
I am conscious that in the present case the petitioner is not trying to escape any liability in law. However, the petitioner/plaintiff claims that the non-applicants/defendants be restrained from interfering with his lease-hold interest in the suit-land by a decree for permanent injunction without taking recourse to due process prescribed by the law. It is obvious that the property involved in the suit is capable of valuation as the plaintiff himself has put its value at Rs. 1,00,620/-. Thus, the value of the thing affected has already been objectively ascertained by the petitioner. This is the valuation of the relief to the petitioner as he wants to retain the possession of demise by getting a decree for permanent injunction. Division Bench pointed out that generally speaking, the 'value of thing affected' should be the value of the relief to the plaintiff. It was also conscious of the fact that above provision is not universally true. In exceptional cases the 'value of thing affected' may not be the value of relief. It may be pointed by way of illustration that the Court Fees Act as amended in Madhya Pradesh itself had reduced the value of court-fee for relief for possession in cases where the suit is in respect of agricultural property, by requiring the plaintiff to pay court fee at the rate of twenty times the land revenue. Here, the value of relief is not the same as the 'value of thing affected'. That apart, there may be a relief in respect of intangible immovable property like copy right or infringement of trade mark. They may affect the property worth crores involved but the relief for permanent injunction in such cases of abstract rights are incapable of valuation on the foundation of 'thing affected'. It is, however, considered opinion of this Court that the general rule should apply to this case and the market value of the land shall govern the value of court fees to be paid under Section 7(iv)(d) of the Court Fees Act. This would be the valuation also for the purpose of jurisdiction under Section 8 of Suits Valuation Act, but he has exercised his option to value the suit at Rs. 1,00,620/- and there is consequential relief. In view of this I am of the considered opinion that he has to pay the Court fees on the valuation as putforth by him.
10. As both the grounds raised by the defendants have substantial force the plaint should have been rejected by the learned Trial Judge. As it has not been so done, I am not inclined to reject the plaint but direct that the plaint should be returned to the plaintiff to refile after following the due procedure of law.
11. The civil revision is accordingly disposed of.