The averments in the plaint nowhere disclose as to how
and in what manner the action of the applicant/defendant in
issuing the notice under Section 260 of the said Act is null and
void. The material facts showing as to how the action impugned
is in breach or contrary to any specific statutory provisions of the
said Act, are absent. It is not stated anywhere in the plaint as to
how the action proposed to be taken is not in good faith. The
averment that the notice issued under Section 260 of the said Act
is without granting any opportunity of hearing to the
nonapplicant/plaintiff is futile and illusory, for the reason that
the notice itself provides the nonapplicant/plaintiff an
opportunity to furnish an explanation in respect of an
unauthorized construction. Perusal/reading of the notice also
makes the averment that the notice is absolutely vague, as futile
and illusory. The plaint averments nowhere disclose as to how
the proposed demolition is without following due procedure of
law. The averments in the plaint fail to disclose the material facts
as to how the conduct of the applicant/defendant is mala fide,
highhanded or disclose colourable exercise of power. The entire
reading of plaint as a whole makes it absolutely clear that the
material facts investing the Civil Court with the jurisdiction to
entertain, try and decide the suit are totally absent and hence the
suit is liable to be dismissed under Order VII, Rule 11(a) and (d)
of the Civil Procedure Code. The Trial Court has, therefore,
committed an error of law in holding that such questions can be
gone into in the suit.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Bhalchandra s/o Govind Mahashabde,
Versus
The Commissioner,
Akola Municipal Corporation,
Akola.
Coram : R.K. Deshpande, J.
Date of Pronouncing the Judgment : 2942013
In Regular Civil Suit No.902 of 2012 challenging the
1.
Judgment :
communication dated 3102012 and the notice dated 29102012
issued by the applicant/defendant Akola Municipal Corporation
under Sections 260 and 267 of the Maharashtra Muniicipal
Corporation Act, calling upon the nonapplicant/plaintiff to
furnish an explanation as to why an unauthorized construction
carried out by him should not be pulled down, the Trial Court, on
412013, has rejected the application under Order VII, Rule 11
of the Civil Procedure Code by an order dated 412013, claiming
dismissal of suit on the ground that there is a bar of jurisdiction of
the Civil Court under Section of the said Act to entertain, try and
decide the suit. Hence, the original defendant Akola Municipal
Corporation has preferred this civil revision application.
Though the provisions of the Bombay Provincial
2.
Municipal Corporation Act are referred to in the communication
and the notice challenged in the suit, the learned counsels
appearing for the parties admit that it is a notice under
Section 260 of the Maharashtra Municipal Corporation Act. The
Trial Court has held that the plaint allegations are not sufficient
to draw an inference that the suit is barred by particular
provisions of the said Act. It has further been held that the suit is
barred by the provision of Section 433A of the Maharashtra
Municipal Corporations Act can be a defence of the
applicant/defendant and such a defence and the defences
disclosed in the application cannot be taken into consideration for
the purpose of rejection of the plaint under Order VII, Rule 11 of
the Civil Procedure Code.
The questions of law, which arise for consideration of
3.
ig
this Court, are – (i) Whether a suit challenging the notice of
pulling down unauthorized construction, issued under
Section 260 of the Maharashtra Municipal Corporations Act, is
barred under the provision of Section 433A of the said Act?, and
(ii) Whether a suit is liable to be dismissed under Order VII,
with such questions, the law laid down by the Apex Court and
this Court need to be seen.
Rule 11(a) and (b) of the Civil Procedure Code? Before dealing
4.
The learned counsels appearing for the parties have
relied upon the decision of the Apex Court in the case of Dhruv
Green Field Ltd. v. Hukam Singh and others, reported in
(2002) 6 SCC 416, and the decision of this Court in Qari
Mohammed Zakir Hussain & others v. Municipal Corporation of
In the decision of the Apex Court in the case of Dhruv
5.
Greater Mumbai & others, reported in 2002(2) Bom.C.R. 98.
Green Field Ltd., cited supra, the Apex Court has laid down that
the question as to whether the jurisdiction of Civil Court is
barred, must be answered on the basis of the following
principles :
“(1)
If there is express provision in any special Act
barring the jurisdiction of a civil court to deal with
matters specified thereunder the jurisdiction of an
ordinary civil court shall stand excluded.
(2)
If there is no express provision in the Act but an
examination of the provisions contained therein leads to
a conclusion in regard to exclusion of jurisdiction of a
civil court, the court would then inquire whether any
adequate and efficacious alternative remedy is provided
under the Act; if the answer is in the affirmative, it can
safely be concluded that the jurisdiction of the civil court
is barred. If, however, no such adequate and effective
alternative remedy is provided then exclusion of the
jurisdiction of the civil court cannot be inferred.
(3)
Even in cases where the jurisdiction of a civil
court is barred expressly or impliedly, the court would
nonetheless retain its jurisdiction to entertain and
adjudicate the suit provided the order complained of is a
nullity.”
It is thus apparent that if there is express provision in any special
Act barring the jurisdiction of the Civil Court to deal with the
matters specified thereunder, the jurisdiction of the ordinary Civil
Court shall stand excluded. It has been held that even in cases
where the jurisdiction of the Civil Court is barred expressly or
impliedly, the Court would nonetheless retain its jurisdiction to
entertain and adjudicate the suit; provided the order complained
of is a nullity.
In the decision of this Court in the case of Qari
Mohammed Zakir Hussain, cited supra, it has been held that even
if the jurisdiction of the Civil Court is specifically excluded, the
Civil Court shall have jurisdiction to examine into the issues
where the provisions of the Act have not been complied with, or
statutory Tribunal has not acted in conformity with the
fundamental judicial procedure. It has further been held that if
the suit proceeds on the premises that the offending act has been
done not in good faith, then there is no bar for such a suit. The
suit complaining that the offending action is mala fide and in
transgression of authority, would not be barred.
7.
Now, Section 433A of the Maharashtra Municipal
Corporations Act creating a bar of jurisdiction of the Civil Court,
being relevant, is reproduced below :
“433A. Bar of jurisdiction – Save as otherwise provided
in this Act, any notice issued, order passed or direction
issued by the Designated Officer, under sections 260,
261, 264, 267 or 478 shall not be questioned in any suit
or other legal proceedings.”
Undoubtedly, if the plaintiff comes before the Civil Court
alleging that a notice issued under Section 260 of the said Act is
illegal in any manner and seeks a declaration to that effect, then
the bar of jurisdiction to try such a suit under Section 433A of the
said Act shall operate. However, nonetheless, the inherent
jurisdiction of a Civil Court in a suit challening the notice under
Section 260 of the said Act, on the limited grounds, viz. that the
act of issuance of such notice is nullity, or that while issuing such
notice, the mandatory provisions of the said Act have not been
complied with, or that the Authority issuing such a notice has not
acted in conformity with the fundamental judicial procedure, or
that it is an abuse of exercise of power, or that the offending act
has not been done in good faith, remains intact, in view of the
aforestated law laid down in judicial pronouncement. The Civil
Court is not precluded of its inherent jurisdiction to entertain and
decide such challenge to a notice under Section 260 of the said
Act, on such limited grounds, particularly when there is no forum
available under the said Act to ventilate such grievances in
respect of it. Hence, the question of law at Serial No.(i) is
answered accordingly.
8.
Now coming to the question of law at Serial No.(ii), the
principles of law laid down by the Apex Court in the case of
Sopan Sukhdeo Sable and others v. Assistant Charity
Commissioner and others, reported in (2004) 3 SCC 137, need to
be seen. The Apex Court has considered the question of
compliance of clauses (a) and (d) of Rule 11 under Order VII of
the Civil Procedure Code, in para 8 of the said decision. In
paras 10 to 14, the principles underlying the said provisions
ig
enunciated by several decisions of the Apex Court, are discussed.
Hence, the same are reproduced below :
“10.
In Saleem Bhai v. State of Maharashtra it was
held with reference to Order 7 Rule 11 of the Code that
the relevant facts which need to be looked into for
deciding an application thereunder are the averments in
the plaint. The trial court can exercise the power at any
stage of the suit – before registering the plaint or after
issuing summons to the defendant at any time before the
conclusion of the trial. For the purposes of deciding an
application under clauses (a) and (d) of Order 7 Rule 11
of the Code, the averments in the plaint are germane:
the pleas taken by the defendant in the written statement
would be wholly irrelevant at that stage.
11.
In I.T.C. Ltd. v. Debts Recovery Appellate
Tribunal it was held that the basic question to be
decided while dealing with an application filed under
Order 7 Rule 11 of the Code is whether a real cause of
action has been set out in the plaint or something purely
illusory has been stated with a view to get out of Order 7
Rule 11 of the Code.
12.
The trial court must remember that if on a
meaningful and not formal reading of the plaint it is
manifestly vexatious and meritless in the sense of not
disclosing a clear right to sue, it should exercise the
power under Order 7 Rule 11 of the Code taking care to
see that the ground mentioned therein is fulfilled. If
clever drafting has created the illusion of a cause of
action, it has to be nipped in the bud at the first hearing
by examining the party searchingly under Order 10 of
the Code. (See T. Arivandandam v. T.V. Satyapal).
13.
It is trite law that not any particular plea has to
be considered, and the whole plaint has to be read. As
was observed by this Court in Roop Lal Sathi v.
Nachhattar Singh Gill only a part of the plaint cannot be
rejected and if no cause of action is disclosed, the plaint
as a whole must be rejected.
14.
In Raptakos Brett & Co. Ltd. v. Ganesh
Property it was observed that the averments in the plaint
as a whole have to be seen to find out whether clause (d)
of Rule 11 of Order 7 was applicable.”
It is thus apparent that the relevant facts, which need to be looked
into for deciding an application under Order VII, Rule 11 of the
Civil Procedure Code, are the averments in the plaint, which are
germane, and the pleas taken by the defendant in the written
statement would be wholly irrelevant. The basic question to be
decided is whether a real cause of action has been set out in the
plaint or something purely illusory has been stated with a view to
get out of Order VII, Rule 11 of the Code. If on meaningful and
not formal reading of the plaint it is manifestly vexatious and
meritless in the sense of not disclosing a clear right to sue, the
power under Order VII, Rule 11 can be exercised; provided the
grounds mentioned therein subsist. The averments in the plaint
have to be considered as a whole to find out whether clause (d) of
Rule 11 under Order VII is attracted or not.
9.
Para 20 in the decision of Sopan Sable's case, cited
supra, discussing the distinction between the material facts and
particulars, is also relevant and the same is reproduced below :
“20.
There is distinction between “material facts”
and “particulars”. The words “material facts” show
that the facts necessary to formulate a complete cause of
action must be stated. Omission of a single material fact
leads to an incomplete cause of action and the statement
or plaint becomes bad. The distinction which has been
made between “material facts” and “particulars” was
brought by Scott, L.J. in Bruce v. Odhams Press Ltd. in
the following passage: (All ER p. 294)
“The cardinal provision in Rule 4 is that
the statement of claim must state the material
facts. The word 'material' means necessary for
the purpose of formulating a complete cause of
action; and if any one 'material' statement is
omitted, the statement of claim is bad; it is
'demurrable' in the old phraseology, and in the
new is liable to be 'struck out' under R.S.C.
Order 25 Rule 4 (see Philipps v. Philipps); or 'a
further and better statement of claim' may be
ordered under Rule 7.
The function of 'particulars' under Rule 6
is quite different. They are not to be used in
order to fill material gaps in a demurrable
statement of claim – gaps which ought to have
been filled by appropriate statements of the
various material facts which together constitute
the plaintiff's cause of action. The use of
particulars is intended to meet a further and
quite separate requirement of pleading,
imposed in fairness and justice to the
defendant. Their function is to fill in the
picture of the plaintiff's cause of action with
information sufficiently detailed to put the
defendant on his guard as to the case he had to
meet and to enable him to prepare for trial.”
The dictum of Scott, L.J. in Bruce case has been quoted
with approval by this Court in Samant N. Balkrishna v.
George Fernandez and the distinction between
“material facts” and “particulars” was brought out in
the following terms: (SCC p. 250, para 29)
“The word 'material' shows that the facts
necessary to formulate a complete cause of
action must be stated. Omission of a single
material fact leads to an incomplete cause of
action and the statement of claim becomes bad.
The function of particulars is to present as full
a picture of the cause of action with such
further information in detail as to make the
opposite party understand the case he will have
to meet.”
Rule 11 of Order 7 lays down an independent remedy
made available to the defendant to challenge the
maintainability of the suit itself, irrespective of his right
to contest the same on merits. The law ostensibly does
not contemplate at any stage when the objections can be
raised, and also does not say in express terms about the
filing of a written statement. Instead, the word “shall”
is used, clearly implying thereby that it casts a duty on
the court to perform its obligations in rejecting the
plaint when the same is hit by any of the infirmities
provided in the four clauses of Rule 11, even without
intervention of the defendant. In any event, rejection of
the plaint under Rule 11 does not preclude the plaintiffs
from presenting a fresh plaint in terms of Rule 13.”
In order to formulate a complete cause of action, all material facts
need to be pleaded. Omission to plead a single material fact
would lead to an incomplete cause of action, and the statement or
the plaint becomes bad. In such a situation, the provision casts a
10.
duty on the Court to perform its obligations in rejecting the plaint.
A plea of bar to jurisdiction of the Civil Court to
entertain and decide the challenge to a notice under Section 260
of the said Act on the limited grounds, has to be considered
having regard to the contentions raised in the plaint, the
averments disclosing the cause of action, and the reliefs sought
for therein. All such averments must be considered as a whole
and not in isolation. The plaint must contain all such statements
of material facts, as are necessary to invest such jurisdiction with
the Civil Court. The statements of facts must be very clear and
specific and not vague. The absence of a single material fact of
jurisdiction, would entail the consequences of dismissal of suit, as
barred by Section 433A of the said Act.
In the light of the aforesaid law laid down by the Apex
11.
Court, I have gone through the averments made in the plaint. In
para 4 of the plaint, it is admitted that the showcause notice was
issued under Section 260 of the said Act on 3102012, which is
the subject matter of challenge. It is averred that the
applicant/defendant has passed the said order without granting
any opportunity of hearing to the non applicant/plaintiff. Hence,
the order is null and void. In para 6, it is averred that in fact there
is no unauthorized construction made by the
nonapplicant/plaintiff on the suit property, and the perusal of the
notice will show that the said notice is absolutely vague. In
para 9 of the plaint, it is averred that the applicant/defendant has
not given any prior notice to the nonapplicant/plaintiff for taking
such an action, and hence it is against the wellsettled principles
of law and natural justice. In para 11, it is averred that the act of
the applicant/defendant is illegal, unauthorized and against the
provisions of the Bombay Provincial Municipal Corporation Act,
and there is no necessity of any notice under Section 487 of the
said Act. The relief claimed is that the notice dated 29102012
be declared as void, illegal and without substance. The relief of
permanent injunction is claimed restraining the
applicant/defendant from acting on the basis of such a notice.
Perusal of the communication dated 3102012, placed
12.
by the nonapplicant/plaintiff on record along with the plaint and
challenged as being null and void, shows that the
nonapplicant/plaintiff is merely called upon to stop the alleged
unauthorized construction carried out without permission of the
applicant/defendant and to submit the papers regarding ownership
of the property and sanctioned plan. The notice
dated 29102012 issued under Section 260 of the Bombay
Provincial Corporation Act clearly discloses the specific area of
unauthorized construction. The notice is absolutely clear and
without any ambiguity. It calls upon the nonapplicant/plaintiff to
show cause as to why such an unauthorized construction should
13.
not be pulled down within a period of fifteen days.
The averments in the plaint nowhere disclose as to how
and in what manner the action of the applicant/defendant in
issuing the notice under Section 260 of the said Act is null and
void. The material facts showing as to how the action impugned
is in breach or contrary to any specific statutory provisions of the
said Act, are absent. It is not stated anywhere in the plaint as to
how the action proposed to be taken is not in good faith. The
averment that the notice issued under Section 260 of the said Act
is without granting any opportunity of hearing to the
nonapplicant/plaintiff is futile and illusory, for the reason that
the notice itself provides the nonapplicant/plaintiff an
opportunity to furnish an explanation in respect of an
unauthorized construction. Perusal/reading of the notice also
makes the averment that the notice is absolutely vague, as futile
and illusory. The plaint averments nowhere disclose as to how
the proposed demolition is without following due procedure of
law. The averments in the plaint fail to disclose the material facts
as to how the conduct of the applicant/defendant is mala fide,
highhanded or disclose colourable exercise of power. The entire
reading of plaint as a whole makes it absolutely clear that the
material facts investing the Civil Court with the jurisdiction to
entertain, try and decide the suit are totally absent and hence the
suit is liable to be dismissed under Order VII, Rule 11(a) and (d)
of the Civil Procedure Code. The Trial Court has, therefore,
committed an error of law in holding that such questions can be
gone into in the suit.
For the reasons stated above, the civil revision
14.
application is allowed. The order dated 412013 passed below
Exhibit 12 in Regular Civil Suit No.902 of 2012, by the learned
2nd Joint Civil Judge, Junior Division, Akola, is hereby quashed
and set aside, and Regular Civil Suit No.902 of 2012 is dismissed
under Order VII, Rule 11(a) and (d) of the Civil Procedure Code,
being barred by the provisions of Section 433A of the
Maharashtra Municipal Corporations Act. No order as to costs.
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