COMMISSIONER JMC AND ANR vs HARDEV SINGH

1 This revision petition is directed against the order dated 16.03.2018 passed by the learned 1st Civil Subordinate, Judge Jammu (hereinafter to be

referred to as the ‘trial Court’) whereby the trial Court has dismissed the application of the petitioners filed under Order VII Rule 11 of Civil

Procedure Code for rejection of the plaint.

2 Briefly stated, the facts leading to the filing of this revision petiton, are as follows:

The respondent filed a suit for permanent prohibitory injunction restraining the petitioners herein from demolishing the main gate of the house of the

respondent situated at Pritam Nagar, Lane No.01, Paloura Jammu. In the plaint, it was averred that the respondent was owner in possession of land

measuring 2 marlas comprised in khasra No.491, situated at Pritam Nagar, Lane No.1, Paloura Jammu which was purchased by him vide Sale Deed

dated 24.03.2015. It was claimed by the respondent that after purchasing the said land, he had constructed the boundary wall and installed gate to the

aforesaid land. It was further contended by the respondent that on 08.12.2015, the petitioners along with some anti social elements came on the spot

and tried to demolish the main gate of the house of the respondent, but due to the intervention of the respondent and some other persons, their attempt

was foiled. On the basis of this cause of action, the aforesaid suit was filed by the respondent. The petitioners, who are defendants in the aforesaid

suit, instead of filing written statement, moved an application under Order VII Rule 11 of Civil Procedure Code for rejecting the plaint.

 The matter was considered by the trial Court and vide order dated 16.03.2018, the application aforesaid filed by the petitioners was rejected.

3 It is the order dated 16.03.2018 passed by the trial Court which has been called in question before this Court in the instant revision petition.

4 I have heard learned counsel for the petitioners and also perused the record. At the time of consideration of the application moved under Order VII

Rule 11 of Civil Procedure Code, the trial Court is only expected to rely upon the averments made in the plaint and would not look to the possible

defenses which the defendant may have to offer in opposition to the suit. Going by the averments, it is apparent that the cause of action to file the suit

accrued to the respondent only when the petitioners, without any authority of law, tried to demolish the main gate erected by the respondent on his

land. The plea of the petitioners that the civil suit was barred in terms of Section 14 of J&K Control of Building Operations Act, 1988

(hereinafter to be referred to as the ‘Act’) is not tenable for the simple reason that the petitioners had not initiated any action traceable to any

provision of the Act. For facility of reference, Section 14 of the Act is reproduced hereunder:

“14. Bar of Jurisdiction.Â

 No court shall have jurisdiction to -

(a) make any interim order whether by way of injunction or stay or in any other manner against the order of the Authority concerned or the appellate

office;.

(b) entertain any suit or proceeding in respect of demolition of any buildingâ€​.

5 From a bare reading of Section 14, it would transpire that the jurisdiction of the Civil Court is ousted only in two situations; first, where the order

challenged in the suit is passed by an authority under the provisions of the Act; and second, if the matter pertains to the demolition of the structure.

The word ‘demolition’ as referred to in Section 14 is referable to the demolition which is ordered by the authorities after following the provisions

of the Act. Admittedly, under the provisions of the Act, no demolition can be affected without first putting the occupier of the offending structure to

notice and providing him an opportunity of being heard.Â

6 Learned counsel for the petitioners fairly submitted that in the instant case, no notice as envisaged under the provisions of the Act was issued to the

respondent before directing the demolition. As a matter of fact, in the application filed by the petitioners under Order VII Rule 11 of Civil Procedure

Code, it is averred that on an earlier occasion, the petitioners had demolished the gate illegally erected by the respondent, but the same was re-erected

by him thereby necessitating the action against the respondent.Â

7 Be that as it may, it is clear that if the action is initiated under the provisions of the Act, the jurisdiction of the civil Court is clearly ousted, but if

the action is taken or threatened to be taken is not traceable to any of the provision of the Act, the jurisdiction of the civil Court vested in terms of

Section 9 of the Civil Procedure Code cannot be ousted.Â

8 Learned counsel for the petitioners laid great stress on clause (b) of Section 14 of the Act to submit that in case of demolition, the jurisdiction of the

civil Court is completely ousted. As stated above, the word ‘demolition’ used in Section 14 of the Act is not a demolition dehors the law, but a

demolition which is ordered after following the due process of law as envisaged under the provisions of the Act. Â

9 The learned trial Court has, thus, not committed any illegality in dismissing the application of the petitioners. I find no infirmity in the order of the trial

Court. Consequently, this revision petition is devoid of merit and the same is dismissed.