Madhya Pradesh High Court
Irfan Ali vs The Municipal Corporation Gwalior on 23 June, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 23 rd OF JUNE, 2023
MISCELLANEOUS PETITION No. 3270 of 2023
BETWEEN:-
IRFAN ALI S/O SHRI EHSAN ALI, AGED ABOUT 63
YEARS, OCCUPATION: AGRICULTURIST, RESIDENT OF
HAKIM SAHAB KA BADA DAULATGANJ LASHKAR,
GWALIOR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANAND V. BHARDWAJ - ADVOCATE)
AND
1. THE MUNICIPAL CORPORATION GWALIOR
THROUGH ITS COMMISSIONER, OFFICE
MUNICIPAL CORPORATION. NEAR BAL BHAWAN,
CITY CENTER, GWALIOR (MADHYA PRADESH)
2. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR, DISTRICT GWALIOR NEW
COLLECTORATE, SIROL ROAD, CITY CENTER,
GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DEEPAK KHOT - ADVOCATE FOR RESPONDENT NO.1 )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition under Article 227 of the Constitution of India has been preferred by the petitioner being aggrieved by order dated 12.05.2023 passed by VI Civil Judge Class-II, Gwalior (M.P.) in Case No.168-A/2014; whereby, an application filed by the petitioner/plaintiff under Section 151 of the Code of Civil Procedure 1908 (for short "CPC") 2 has been rejected. The petitioner further being aggrieved by order dated 29.05.2023 passed by XV District Judge, District Gwalior in Case No.MCA/91/2023; whereby, an appeal preferred by the petitioner/plaintiff under Order XLIII Rule 1(r) read with Section 151 of CPC against the order dated 12.05.2023 has also been been rejected.
2. Brief facts of the case are that the petitioner/plaintiff had filed a suit for declaration and injunction with respect to land bearing Survey No.690, ad-measuring 0.292 hectare situated at Tejendar Nath Ki Gali, Lashkar Gwalior. A written statement has been filed by defendant No.1/respondent No.1 - Municipal Corporation, Gwalior denying the facts of the case and stating therein that the land in question is earmarked for park. The petitioner/plaintiff had filed an application under Order XXXIX Rule 1 and 2 of CPC and also an application under Section 151 of CPC. The said applications were replied by defendant No.1/respondent No.2 and learned Court below dismissed the application under Section 151 of CPC and the appeal preferred against the said dismissal, also received the same fate. Hence, the present petition.
3. Learned counsel for the petitioner has vehemently argued that the land in question is recorded in the name of the petitioner/plaintiff in the revenue records vide order dated 23.04.2012 and the demarcation of the land in dispute has also been done. The land in question belongs to the ownership of the petitioner/plaintiff and he is in possession thereof.
4. It was further argued that earlier the land in question was recorded in the name of grandfather of the petitioner/plaintiff, Shri Asgar Ali and 3 after his sad demise, name of the father of the petitioner/plaintiff Shri Eshan Ali was recorded and presently, the petitioner/plaintiff is recorded as Bhumiswami on the disputed survey number.
5. It was further argued that defendant No.1/respondent No.1, under the garb of developing a park, has started raising construction over the land of the petitioner/plaintiff, therefore, the present suit came to be filed seeking relief of declaration of the land in dispute to be the ownership of the petitioner/plaintiff and injunction is also sought against defendant No.1/respondent No.1 - Municipal Corporation, Gwalior for restraining them from rasing construction over the suit land and not to interfere in the peaceful possession of the petitioner/plaintiff and also not to encroach upon the disputed land.
6 . It was further argued that as defendant No.1/respondent No.1 - Municipal Corporation, Gwalior has tried to raise construction over the suit land, the petitioner/plaintiff pressed the application under Section 151 CPC stating therein that till disposal of the injunction application, status quo with regard to the suit property be maintained between the parties but the learned Trial Court without considering the dispute between the parties in right perspective, rejected the application on some extraneous considerations which make the impugned order per se illegal and therefore, it deserves to be quashed.
7 . It was further argued that rejection of the said application was challenged by the petitioner/plaintiff in appeal but the Appellate Authority also on similar lines dismissed the appeal; thus, constrained, present 4 petition has been filed.
8. While taking exception to the impugned orders, it was contended by counsel for the petitioner that defendant No.1/respondent No.1 - Municipal Corporation, Gwalior has neither pleaded nor filed any document to demonstrate that the property in question belongs to Municipal Corporation, Gwalior which is mandatory under Sections 82 and 83 of the Municipalities Act, 1961. This fact has not been considered by both the Courts below.
9 . It was further argued that if defendant No.1/respondent No.1 - Municipal Corporation, Gwalior is not restrained from raising construction over the suit property then substantial damage as well as irreparable loss would be caused to the petitioner/plaintiff, which could not be compensated in terms of money. To bolster his submission, reliance was placed in the matters of Ramswarup Tripathi v. City Administrator, Gwalior reported in AIR 1988 MP 264; Shankarlal v. State of M.P. reported in 1978 MPLJ 419; Mukesh Vs. Deonarayan & Others reported in 1987 JLJ 572; Shobhna Sardesai v. Radhey Shyam reported in 1999 (II) MPWN 11; Leela Purohit and Co. (M/s.) & Others Vs. Arun Agarwal & Others reported in 2002 RN 54 and Vimal Kumar Suri & Others vs. Smt. Chanchal Bhaseen & Others reported in 2015 (II) MPWN 120.
10. Per contra, Shri Deepak Khot, Advocate who usually appears for Municipal Corporation, Gwalior was directed to appear in the matter and seek instructions, has orally submitted that under the directions issued by 5 this Court in one Public Interest Litigation which was numbered as Writ Petition No.207 of 1990 (PIL), the disputed land is reserved for a park meant for general public and the Municipal Corporation, Gwalior in, its written statement, has denied the ownership of the petitioner/plaintiff.
11. It was further submitted that the Municipal Corporation, Gwalior is developing the said park and in that context, certain constructions are being raised which cannot be said to be illegal.
1 2 . It was further submitted that present suit was filed by the petitioner/plaintiff on 28.08.2014 and alongwith the suit, no application under Order XXXIX Rule 1 and 2 CPC and Section 151 CPC were filed and it was only contended in the suit that respondent No.1/defendant No.1 had put a board on the said land and for its removal, a mandatory injunction was sought. Respondent No.1/defendant No.1 had filed its written statement on 22.04.2015 and the matter, later on, was fixed for plaintiff's evidence but since the evidence was not recorded, for want of prosecution the suit was got dismissed on 07.12.2016 and later on, the said suit was revived vide order dated 29.02.2020. Thereafter, applications under Order XXXIX Rule 1 and 2 CPC and Section 151 CPC were filed and since from the very inception of the suit, as there was no urgency to the petitioner/plaintiff, the present application under Section 151 CPC lost its very purpose. As application under Order XXXIX Rule 1 and 2 CPC is pending and it is listed on 27.06.2023 for its hearing, therefore, the present petition is totally misconceived.
1 3 . It was further submitted that the learned Trial Court, in its 6 impugned order, observed that from the photographs which have been produced by the petitioner/plaintiff, it cannot be ascertained that they are of the same spot, which is in dispute and whether they belong to the disputed land or not and its evaluation can only be done by way of evidence on merit; thus, the learned Trial Court has rightly rejected the said application. On the strength of above arguments, it was submitted that the petition being devoid of any substance deserves to be dismissed.
14. Heard counsel for the parties and perused the record.
15. The Hon'ble Supreme Court in the matter of K.K. Velusamy v. N. Palanisamy reported in [(2011) 11 SCC 275 ] in paragraph 10 has summarized the scope of 151 CPC which is quoted below:-
"(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked 7 in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of Court.
16. From the above enunciation it could safely be gathered that Section 151 of the CPC recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation and the scope of such power co- exists with the need to exercise such power in the facts and circumstances of the case.
81 7 . From the scope of Section 151 of CPC, as summarized by the Hon'ble Supreme Court, it is also very much clear that the inherent powers of the Court being complementary to the powers specifically conferred, a Court is free to exercise them for the purposes mentioned in Section 151 of the Code, when the matter is not covered by any specific provision in the Code. The power under Section 151 CPC is to be exercised with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the situation, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of the Court.
18. If the facts of the above case are put to test on the basis of above principles, it would be gathered that the suit was filed in the year 2014 and in the midst, it got dismissed for want of prosecution. Thereafter, it was restored and only after that, the application under Order XXXIX Rule 1 and 2 of CPC was filed on 04.05.2023 which is the remedy actually available with the petitioner and has availed and it was later on, on 06.05.2023, the application under Section 151 CPC was filed. Vide the application under Section 151 of CPC, the prayer was made that till disposal of the application under Order XXXIX Rule 1 and 2 CPC, status quo be maintained and in that regard, certain photographs were submitted to demonstrate that the respondent No.1/defendant No.1 is trying to raise construction over the suit property. Since the application under Order XXXIX Rule 1 and 2 CPC is already pending at this stage, it cannot be said that there was no remedy available with the petitioner under the Code. At 9 that juncture, learned Trial Court has rightly observed that from the photographs it is impossible to ascertain whether it pertains to the suit property or some other land and has also taken note of the objection which has been raised by the Municipal Corporation, Gwalior with regard to suit land being earmarked for park and therefore, the conclusion of the learned Trial Court that the urgency which has been shown by the petitioner/plaintiff is not reflected which would frustrate the very purpose of filing of the application under Order XXXIX Rule 1 and 2 CPC; thus, the application under Section 151 of CPC was rightly rejected. 1 9 . Likewise, the order passed by the Appellate Court does not deserve to be interfered with as it has rightly been observed that the suit was filed in the year 2014 and after a lapse of more than eight years, an application for temporary injunction under Order XXXIX Rule 1 and 2 CPC has been filed; therefore, the very conduct of the petitioner/plaintiff demonstrates that there is/was no urgency in the matter and no irreparable loss could be said to be caused to the petitioner/plaintiff.
20. The learned Appellate Court has also rightly observed that what is the status of the suit land has not been demonstrated by the petitioner/plaintiff and from the revenue records as well as the documents available on record, prima facie it appears that on the suit land a park is being constructed which would be used by general public and so far as claim of the petitioner/plaintiff is concerned that the disputed land is of his ownership can only be ascertained after taking evidence and in the light of aforesaid, as application under Order XXXIX Rule 1 and 2 CPC is already 10 pending, the learned Trial Court has rightly rejected the application filed for maintaining the status quo. The learned lower Court has also taken note of the contention of the petitioner/plaintiff that no document has been filed by respondent No.1/defendant No.1 - Municipal Corporation, Gwalior as provided under Sections 82 and 83 of the Act of 1961. As the said contention would also be subject matter of evidence and would be ascertained only at the time of adducing evidence, thus, the said contention has no force.
2 1 . So far as judgments cited by counsel for the petitioner in the matters of Ramswarup Tripathi (supra); Shankarlal (supra); Mukesh Vs. Deonarayan (supra) and Leela Purohit (supra) are concerned, they had already been discussed by the learned Appellate Court and been righlty discussed, needs no further discussion.
22. So far judgments cited in the matters of Shobhna Sardesai (supra) and Vimal Kumar Suri (supra) are concerned, the matters which pertain to decisions rendered in Misc. Appeals while rejecting the application under Order XXXIX Rule 1 and 2 CPC, are not applicable to the present case.
23. Apart from the above discussion, it has been informed that hearing on application under Order XXXIX Rule 1 and 2 CPC is to take place on 27.06.2023, therefore, this Court does not find any justifiable reason to accede to the prayer made by petitioner/plaintiff.
24. Accordingly, the petition being devoid of merit is hereby dismissed.
2 5 . It is needless to observe that the learned Trial Court while 11 deciding the application under Order XXXIX Rule 1 and 2 CPC shall not get influenced by any of the findings recorded in its earlier order deciding application under Section 151 CPC.
(MILIND RAMESH PHADKE) JUDGE pwn* PAWAN Digitally signed by PAWAN KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=b864d1ab4ace2215bfcf3ab301c34d631287f1b1cdd90b4a49f KUMAR 265f02d9d593f, pseudonym=3190AA6E1809E2BA43FFBEC416CA08028399E44A, serialNumber=61B9D129971D2EA4FD4455ED49EA436EA65E26164BE EED89153191C56E98CE21, cn=PAWAN KUMAR Date: 2023.06.26 19:09:52 +05'30'