Bombay High Court
Damodar Dnyandeorao Sarap vs Haribhau Govindrao Pakdane And Another on 21 August, 2017
Author: S.B. Shukre
Bench: S.B. Shukre
(Judgment) 2108 CRA 10-2017 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
CIVIL REVISION APPLICATION NO. 10/2017
Damodar Dnyandeorao Sarap,
Aged about 45 years, Occu: Agriculturist,
R/o. Mothi Hadd, Near Moreshwar Temple,
Wadegaon, Tq. Balapur, Distt. Akola. PETITIONER
.....VERSUS.....
1] Haribhau Govindrao Pakdane,
Aged about 87 years, Occu: Retired,
R/o. Mothi Hadd, Near Moreshwar Temple,
Wadegaon, Tq. Balapur, Distt. Akola.
2] Village Development Officer,
Grampanchayat Wadegaon, Tq. Balapur,
Distt. Akola. RESPONDE NT
S
Shri J.B. Gandhi, counsel for petitioner.
Shri R.L. Khapre, counsel for respondent no.1.
Shri K.P. Mahalle, counsel for respondent no.2.
CORAM: S.B. SHUKRE, J.
DATE : AUGUST 21, 2017.
ORAL JUDGMENT :
Heard. Rule. Rule made returnable forthwith by consent of the parties.
::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:38:14 ::: (Judgment) 2108 CRA 10-2017 2/9 2] What is challenged in the present civil application is an order passed by the Civil Judge (Junior Division), Balapur, District - Akola on 03/01/2017 in R.C.S. No. 61/2016, thereby rejecting the application filed by the petitioner, original defendant no.1, under Order 7 Rule 11 of CPC (Exh.10).
3] Shri Gandhi, learned counsel for the applicant submits that considering the pleadings in the plaint and the reliefs sought, it is manifestly clear that the suit in the present case is barred by the provisions of Section 53(2A) of the Maharashtra Village Panchayat Act (for short, "Village Panchayat Act"), which provides for an alternate efficacious remedy in a case where it is alleged that the defendant has made an encroachment upon a public property or open space or has made illegal and unauthorized construction on his property thereby causing inconvenience to the neighbor. He has placed his reliance upon the view taken by the learned Single Judge of this court in the case of Village Panchayat, Antora through its member -Vs- W asudeo Ramchandraji Mohod and another, 2014(5) Bom.C.R. 601. ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:38:14 ::: (Judgment) 2108 CRA 10-2017 3/9 4] Shri Mahalle, learned counsel for respondent no.2, original defendant no.2, supports the cause taken up in this civil revision application by the petitioner/defendant no.1 when he submits that Section 53(2A) of the Village Panchayat Act, being a complete code itself, provides an alternate efficacious remedy for redressal of the grievance raised in the present suit by the respondent no.1, original plaintiff. He has also placed his reliance upon with the same case law as learned counsel for the petitioner.
5] Shri Khapre, learned counsel for respondent no.1, original plaintiff, submits that it is not necessary for the plaintiff in a case like this to plead in so many words the nature of injury caused to him and it is enough for him to plead that the construction has been made unauthorisedly, without following the prescribed rules and that it is causing inconvenience to him or encroaching upon his right to privacy. In such a case, the law is now settled, the suit is not only maintainable, but the injury to public or even to private property holder like respondent no.1 is presumed, so submits learned ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:38:14 ::: (Judgment) 2108 CRA 10-2017 4/9 counsel for respondent no.1.
6] On going through the pleadings in the plaint, I find that there is a great substance in the argument of the learned counsel for respondent no.1 and there is no substance in the argument of learned counsel for petitioner and respondent no.2. It is well settled law that in order to examine the issue of rejection of plaint under Order 7 Rule 11 of CPC, on the ground of the suit being barred by law, what is required to be seen is only the pleadings in the plaint in their ordinary and natural sense without adding anything to or subtracting anything from those pleadings. It is also settled law that it is not permissible for the court to examine such an issue by looking into the documents which are not part of the pleadings in the plaint. Going by these principles, when one examines the plaint pleadings, one can easily find that these pleadings, understood as they stand in the plaint, do not oust the jurisdiction of the civil court. In para no.4 of the plaint, it is specifically averred that while raising the construction on his own plot, the petitioner did not leave any open space on the southern ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:38:14 ::: (Judgment) 2108 CRA 10-2017 5/9 as well as western side of the plot and that this construction has resulted in closing the drainage of the roof water flowing from the construction made by respondent no.1. It is also pleaded that some portion of the offending construction is penetrating the property of respondent no.1 and it has been carried out by demolishing the north-west corner of his house and erecting one column at this place. There is also a pleading to the effect that this construction made by the petitioner has encroached upon the right to privacy of the plaintiff.
7] Now, these pleadings when understood in their plain and ordinary sense, convey that there is a grievance which can be properly adjudicated upon only by the civil court and not by any public authority as prescribed under Section 53 of the Village Panchayat Act. Some of the reliefs claimed in the plaint are about permanent injunction and mandatory injunction which could not be granted by the public authority and granted only by a civil court.
8] In the case of Village Panchayat -Vs- ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:38:14 ::: (Judgment) 2108 CRA 10-2017 6/9 W asudeo Mohod (supra), a notice had been issued by the Gram Panchayat for demolishing of the construction over suit site. In order to restrain the Gram Panchayat from acting upon this notice, a civil suit was filed by the plaintiff in that case against Gram Panchayat and in the backdrop of this fact it was found by this court that alternate efficacious remedy under Section 53 of the Village Panchayat Act was available to the plaintiff therein and therefore it was held that the civil suit was barred in view of the availability of the alternate efficacious remedy expressly provided under Section 53(2A) of the said Act. In the instant case, the facts are quite different. The facts disclose allegations of inconvenience and injury to the right of the plaintiff i.e. respondent no.1, to enjoy his property in accordance with law. It is true that in the plaint pleadings nothing is averred about the easementary rights, but as held by this court in the case of J iwanlal Pokardas Motwani
-Vs-
State of Maharashtra and others , 2004(1) Mh.L.J. 265, in such cases, inconvenience and legal injury is a matter of presumption and can be presumed by the Caetano court. Similar is the ratio of the case of Fatima ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:38:14 ::: (Judgment) 2108 CRA 10-2017 7/9 Joao -Vs- Village Panchayat of Merces and another , 2000 (Supp. 1) Bom.C.R. 814, decided by the Division Bench of this court. The facts of the case, as just discussed, would show that they are governed by the ratio of these two cases of J iwan lal and Fatima, and not by the ratio of the case of Village Panchayat -Vs- W asudeo Mohod (supra), and therefore, I find that the plaint in the instant case cannot be rejected under the provisions of Order 7 Rule 11 of CPC.
9] Even in the case of Hari R am
-Vs- Jyoti P rasad and another , AIR 2011 S UPREME COURT 952 , the Hon'ble Apex Court has held that, "whenever there is a hindrance to access and movement in the road, the wrongful act resulting therefrom is continuing one and therefore as long as a wrong or injury is continuing, there would be a case for filing of the suit for mandatory injunction and for removal of encroachment". The Hon'ble Apex Court has also held that, "even in such a case the person who has been affected can file a suit and it is not necessary that there should be a representative suit". In the instant case, the injury alleged by the respondent ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:38:15 ::: (Judgment) 2108 CRA 10-2017 8/9 no.1 is not in respect of something done by the petitioner on a public road or on a public property, still R the ratio of the case of Hari am , can be applied to the facts of instant case. The reason being that when a civil suit can be filed for setting right the public injury caused by some encroachment without resorting to alternate remedy available under Municipal or Panchayat Act, a civil suit filed for removal of private injury resulting from encroachment on public or other property and infringement of building sanction can also be likewise filed. Therefore, I do not think that the impugned order rejecting the application filed under Order 7 Rule 11 of CPC, can be said to be illegal or perverse. 10] There is also an argument canvassed on behalf of the respondent no.2 that the notice as required under Section 180 of the Village Panchayat Act, has not been issued in this case before filing of the suit against respondent no.2. There is no dispute about non-issuance of notice under Section 180 of the said Act, but considering the fact that no relief has been claimed against respondent no.2, the notice under Section 180 of ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:38:15 ::: (Judgment) 2108 CRA 10-2017 9/9 the said Act would not be required in the instant case. Therefore, argument is rejected.
11] In the result, I find no illegality or perversity in the impugned order. There is no merit in the application. It deserves to be dismissed. Civil Revision Application stands dismissed.
12] Parties to bear their own costs.
JUDGE
Yenurkar
::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:38:15 :::