Municipal Corporation Ratlam vs Dilip Singh and Another

A.K. Gohil, J.—The applicant Municipal Corporation, Ratlam has filed these civil revisions against the order dated 12.2.1999 granting leave u/s 151 CPC to file suit against the Municipal Corporation after notices u/s 401(1) of the M.P. Municipal Corporation Act, 1956.

The brief facts for the disposal of these revisions are that on 12.2.1999, the Respondents came to know through newspaper report that the buildings which are constructed by them are being demolished for some contravention of Municipal Rules and bye-laws. After reading the newspaper, on the same day the Respondents served notices on the Municipal Corporation u/s 401(1) of the Municipal Corporation Act as notice u/s 401(1) is required to be served on the Corporation before filing a suit and also on the same day, they filed civil suits alongwith applications u/s 151 CPC praying that leave be granted and the application for injunction be heard so that they may not be put to loss. The trial Court by impugned order dated 12.2.1999, granted leave u/s 151 CPC and thereafter also granted injunction in favour of the Respondents. Subsequently, the injunction was confirmed against which the Municipal Corporation has filed Miscellaneous Appeal. The appeal was allowed and the case has been remanded back for rehearing after the expiry of the period of one month as required u/s 401(1) of the Municipal Corporation Act, The Corporation has filed a separate revision against the impugned order challenging grant of leave u/s 151 Code of Civil Procedure.

I have heard Shri Kochatta, LC for applicant and Shri S.K. Pawnekar, LC for Respondents and also perused the record.

The submission of Shri Kochatta is that since there is no provision u/s 401(1) similar to that of Sub-section (2) of Section 80, leave cannot be granted for filing a suit against the Municipal Corporation and since there is no provision under the law for granting leave, the power u/s 151 CPC cannot be exercised. The submission of Shri Pawnekar is that these civil revisions have become infructuous because the lower appellate Court has already given direction in the Miscellaneous Appeal that the same be reheard after registration of suit. After hearing the counsel for the parties, the sole question which arises for consideration before this Court is whether with the aid of provisions of Section 151 Code of Civil Procedure, leave can be granted to file a suit. Learned counsel for the applicant in support of his contention has placed reliance on a Division Bench decision in the case of Ram Krishna Parashar v. Chironji Lal Vaishya and Ors. (1977 JLJ 184), in which the Division Bench of this High Court has held that where the period of notice u/s 80 of CPC has not expired, an intending Plaintiff can file a substantive application praying for grant of a temporary injunction. Sucn an application is necessarily one under the Code of Civil Procedure, wherein inherent powers of the Court are invoked for grant of a temporary injunction. Such an order will only be operative till the party concerned is able to file a suit and is able to obtain temporary injunction from the Court in the suit itself. Meaning thereby the direction of the Division Bench was that a suit is not maintainable then independently Court can come to the rescue of a party and grant temporary injunction for a limited period under its inherent powers.

Learned counsel for the applicant has cited two more decisions of this Court in the case of Baldev Singh Bhatia v. The Commissioner, Nagar Palika Nigam, Raipur and Ors. (2001(1) MPJR 227). in which it has been held that no suit can be filed before the expiration of one month of service of notice and that Court cannot grant leave to file suit as such powers are not conferred u/s 401(1). and in the case of Municipal Corporation Murwarka-Katni, Katni v. Lalchand Jaiswal (2000(2) Vidhi Bhasvar 184 : 2000(2) MPLJ 288). in which it has also been held that without the service of notice to the Municipal Corporation u/s 401(1), the suit is not maintainable and plaint is liable to be rejected for non-compliance of Section 401(1) of the Municipal Corporation Act, It is true that when the Division Bench of this High Court decided the case of Ram Krishna Parashar (supra), at the time when there was no amendment in the CPC and Sub-section (2) of Section 80 was not inserted. Now the position has become quite different after amendment in CPC w.e.f. 1.2.1977 after the insertion of Sub-section (2) of Section 80 of the Code of Civil Procedure. In the cases where suit is filed against the Municipal Corporation, there is no analogous provision in Section 401 like Sub-section (2) in Section 80 Code of Civil Procedure. It may be true that in that case if the Court is not empowered to grant leave u/s 151 CPC then certainly the suit is not maintainable and the plaint is liable to be returned or rejected. According to this Court, the law cannot be without remedy and the party cannot be allowed to face injustice in the absence of any specific provision u/s 401 for grant of leave. It is also true that u/s 151, the Court enjoys the inherent power to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the Court. Section 94 of the CPC also provides about the supplementary proceedings. As per Section 94 of the Code of Civil Procedure, in order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed, grant a temporary injunction or make such further interlocutory order, as may appear to the Court to be just and convenient.

The Division Bench of this High Court in the case of Ram Krishna Parashar (supra) has already considered various decisions of the Supreme Court, this High Court as well as other High Courts and has held thus :

We are, therefore, clearly of the opinion that if the provisions of the CPC are not exhaustive and if it be necessary to devise a procedure, which is not prohibited by the provisions of the Code of Civil Procedure, it is open to the Court not only to devise such a procedure, but also after resorting to such procedure, it is open to the Court to exercise inherent powers for the ends of justice or to prevent an abuse of the process of the Court. In our opinion, the present situation is eminently one where devising of a procedure not prohibited by the provisions of the Code and resort to inherent powers would be absolutely necessary. As already observed by us earlier, law Courts are Courts of justice and they cannot be converted into instruments for perpetration of injustice by legal by per quibbling and from this point of view, we endorse the view as expressed by Raina, J. in State of M.P. v. Caltex (India) Ltd. and Ors. (supra). On the other hand we feel that not adopting that view will in most cases result in perpetration of injustice with open eyes. In our opinion, the law Courts in any case cannot feel themselves so helpless. Otherwise as pointed out by us earlier, the Government or the statutory Corporations would be able to non-suit a Plaintiff within the period of the statutory notice prescribed by the statute and filing of a suit thereafter would be rendered in fructuous on account of the action taken by the Government or the statutory Corporation. Similarly, we may observe that in the Civil Courts or in the High Court, Civil appeals are not permitted to be filed during summer vacations. But such appeals can be filed on the reopening day after the summer vacation. Therefore, if a party on account of urgency wants some temporary relief, he is permitted to file a miscellaneous application in the High Court for such a relief and such a case is registered as a miscellaneous civil case and is dealt with accordingly by the vacation judge and such an order passed by the vacation judge is operative till such time as the party concerned is able to file an appeal in the High Court and is able to obtain an order from the Court on an application for a temporary relief. Such a procedure has been devised in this High Court. We may observe that it is not prohibited either by the CPC or even by the rules framed by the High Court governing its own procedure. If we say so, the same analogy can be applied to subordinate Courts where such a procedure may have to be devised and a resort to inherent powers might become necessary for the ends of justice or to prevent an abuse of the process of the Court.

As a result of the discussion aforesaid, we answer the two questions as under:

(1) Where the period of notice u/s 80 of the CPC has not expired, an intending Plaintiff can file a substantive application praying for grant of a temporary injunction. Such an application is not one u/s 151, Code of Civil Procedure, but it is necessarily one under the Code of Civil Procedure, wherein inherent powers of the Court are invoked for grant of a temporary injunction. Such an order will only be operative till the party concerned is able to file a suit and is able to obtain a temporary injunction from the Court in the suit itself.

(2) The Court acting on such an application can grant a temporary injunction having resort to the inherent powers saved by Section 151 Code of Civil Procedure.

To come to the conclusion, the Division Bench judgment may provide us a guiding rule in which the Court has ruled that even without filing a suit, the Court can grant injunction simply on an application for temporary injunction having resort to the inherent power saved by Section 151 Code of Civil Procedure. Therefore, as submitted by Shri Kochatta, the Court should not have granted leave u/s 151 CPC because there is no provision for grant of such leave u/s 401. Therefore, technically the Court might have granted leave to file suit but instead of granting leave to file suit Court should have granted injunction simply on an application u/s 151 for a limited period of two months and thereafter the party may file regular suit after the expiry of the period of statutory notice and also pray for continuance of injunction granted on the application u/s 151 Code of Civil Procedure. Even this application u/s 151 can be filed without filing a suit which is maintainable independently.

Looking to the aforesaid decision, the legal position is clear, in such contingencies on the point of grant of temporary injunction. Though the aforesaid decision was rendered before the amendment in Section 80 of the CPC i.e. prior to 1.2.1977, as conceded by the learned Counsel for the Appellant, the same situation about Section 401 of the Act of 1956 exists as on today and the same analogy may be applied in the suits filed against the Municipal Corporation where a notice u/s 401 of the M.P. Municipal Corporation Act, 1956 is necessary. Accordingly, the aforesaid revisions are disposed of. Now the Court may, as has already been directed, register separate suits and decide them in accordance with law. Parties are directed to bear their own cost.