RATUL MAHANTA VS. NIRMALENDU SAHA

A.S. BOPANNA, J (TWO JUDGE BENCH)

[CIVIL APPEAL NO. 4627 OF 2021]

AUGUST 10, 2021

LAW POINT- Despite there being the bar of jurisdiction of the civil courts under the Special Act, except for the disputes arising to the limited extent, all other issues are maintainable before the civil court.

FACTS

The appellant (Ratul Mahanta) filed suit in the court of learned Munsif No.2 Kamrup, Guwahati against the respondent (Nirmalendu Saha) where the dispute was over the common public drain which flows out through the western  side  of  the  schedule property of A, B and C.  Here  respondent  purchased  this  schedule  area  which  was south of the property of the appellant. He obstructed the  flow  of  drainage  which stopped its flow to the main Guwahati Municipal Corporation (GMC) drain.

The learned munsif passed the order of injunction under order 39 (1) and (2) of CPC against the respondent to immediately remove the obstruction within 10 days. Thereafter, the respondent filed an appeal under section 96 of CPC in the lower trial court and put the question over the jurisdiction of the civil court, second, appoint a commission officer to inspect the area. Here the lower trial court remanded the case by setting aside the order in the said appeal for firstly deciding the question of jurisdiction before considering grant of any other relief.

The learned Judge, through the order dated 06.06.2014 has held that the jurisdiction of this civil court would stand ousted by implication and the party can claim relief under the procedure prescribed under the GMC Act only. In that background, the order dated 16.11.2013 impugned in the revision petition was set aside, the suit was held not maintainable and liberty was reserved to the appellant to ventilate his grievance under the relevant provisions of the GMC Act, if so advised. Accordingly, the plaint in title suit No.334/2011 was ordered to be rejected. The appellant therefore claiming to be aggrieved by the order dated 08.04.2014 passed by the Gauhati High Court is before the Supreme Court in appeal.

SUBMISSION OF PETITIONER

The learned counsel for the petitioner while assailing the  order  impugned  has contended that the lower appellate court in  the  first  instance  and  the  High  Court  in the present round have erred in arriving at the conclusion that the suit is not maintainable. It is contended that  the  reasoning  adopted  by  the  High  Court  to consider the present case to be covered under Order VII Rule 11(d) of  the  Civil Procedure  Code  and  to  bar  the  civil  suit  is not justified.  It is contended that there  is no bar contemplated to approach the civil court  for the  nature  of relief sought  in the suit, either under the GMC Act or under any other law for the time being in force

SUBMISSION OF RESPONDENT

The High Court was justified in invoking the provision contained in Order VII Rule 11(d) of the Civil Procedure Code to hold that the civil court did not have jurisdiction to entertain the instant suit. In that view, the rejection of the plaint ordered is justified. The appellant is not left without a remedy and the alternate forum is allowed to be invoked. In such circumstance, the order impugned does not call for interference.

OBSERVATION OF HON’BLE SUPREME COURT

The point for consideration is as to whether the existence of such provision in GMC Act would impliedly bar a civil suit. For answering the said question, it would be appropriate to refer to the decision in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi and Others (1993) 3 SCC 161 which in fact was also taken note by the learned Munsif. The relevant consideration made therein is as hereunder:

” In the olden days the source of most of the rights and liabilities could be traced to the common law. Then statutory enactments were few. Even such enactments only created rights or liabilities but seldom provided forums for remedies. The result was that any person having a grievance that he had been wronged or his right was being affected, could approach the ordinary civil court on the principle of law that where there is a right there is a remedy – ubi jus ibi remedium.

With the increase in the number of taxing statutes, welfare legislations and enactments to protect a class of citizens, a trend can be noticed that most of such legislations confer decision making powers on various authorities and they seek to limit or exclude court’s power to review those decisions. The result is that the power of the court under Section 9 of the Code is being denuded and curtailed by such special enactments, in respect of liabilities created or rights conferred.

The Court in the judgments referred to above has upheld the ouster  of  the jurisdiction of the court on examination of two questions – (1) whether the right or liability in respect whereof grievance has been made, had been created under an  enactment and it did not relate to a pre-existing common law right? (2) Whether the machinery provided for redressal of the grievance in respect of infringement of such right or imposition of a liability under such enactment, was adequate and complete? The ouster of the jurisdiction of the court was upheld on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided therein was adequate.

In spite of the bar placed on the power of the court, orders passed under  such statutes can be examined on “jurisdictional question”.

Further, this Court in the case of Ramesh Gobindram vs. Sugra Humayun Mirza Wakf (2010) 8 SCC 726, while examining the  bar of civil court as contemplated under Section 85 of the Wakf Act, 1995 had drawn a distinction that such power would apply only in respect of the issues arising under certain provisions of Act i.e., Section 6, 7 and 83 of the Wakf Act, 1995 and had held that a suit before a civil court would be maintainable for other reliefs notwithstanding the creation of the Wakf tribunal under the Act, unless the dispute falls within the four corners of the powers vested in the Tribunal. Therefore, despite there being the  bar of jurisdiction of the civil courts under the Act, as noted, except for the disputes arising to the limited extent all other issues were held to be maintainable before the civil court. The relief sought in the instant suit is in the nature of declaratory relief in an inter se dispute between the parties. The consideration by the statutory authority as provided under GMC Act is of summary nature. Further, the appeal provided is in respect  of any notice issued or action taken or proposed to be taken by the Commissioner, which in effect provides the appeal remedy only to the owner of the drain against whom action is proposed.

Further as already noted, in the instant case the averments contained in the plaint and the prayer made would disclose that the appellant is not seeking for creation of a right over the drain owned by the defendant nor is any issue raised with regard to the drain of GMC. But the case as put forth is that the property of the appellant, Ms. Suwola Devi and the defendant are contiguous to one another which are shown as suit schedule ‘A’, ‘B’ and ‘C’ properties and on the western side of the property starting from the appellant’s property, there is a drain, which is shown as the boundary and it facilitates the water to flow into the GMC drain. Such relief is to be considered in the suit based on the evidence that would be tendered. Therefore, such relief is not barred under any law.

It is clear that the High Court without taking note of these aspects of the matter has wrongly invoked the provisions contained in Order VII Rule 11 (d) of the Civil Procedure Code to reject the plaint, when in the instant facts there is neither express nor implied bar under any  law. On  the  other hand, the learned Munsif was justified in passing the order dated 16.11.2013 in T.S. No. 334/2011 holding the suit to be maintainable

DECISION– The order dated 06.06.2014 passed by the Gauhati High Court at Guwahati in CRP No.128/2014 is set aside. The plaint in title suit No.334/2011 is restored to the file of the learned Munsif No.2 Kamrup Guwahati. The appeal is accordingly allowed with no order as to costs.

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