HM Journal

Ratul Mehanta v. Nirmalendu Saha

Introduction

The case is concerned with order 39  rule 1 and rule 2 and Section 96 (1)  of Civil procedure court and sets out the jurisdiction of the lower court.
Order 39 rule1 talks about the temporary injunction in any matter and order 39 rule 2 talks about the injunction to restrain or stop repetition or continuance of breach of contract or injury.
Section 96 (1) states that there lies an appeal from every decree passed by any court which exercises its original jurisdiction, the court authorises to hear appeals from the decision of such court.

Facts of the case at lower Court.
Here 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.

What happened at Guwahati High Court ?

The appellant filed a revision petition in CRP No. 260/ 2013 before the Guwahati high court. The learned judges of the concerned court had agreed with the decision of the lower appellate court that at first, the jurisdiction of civil court to decide the case was to be decided. Accordingly, the court allowed the parties to urge their contention in the court of learned munsif.

Instance of re-hearing of the case at the court of learned Munisf and appeal at High court

The learned munisf heard the contention of the parties and held that the bar contemplated under the GMC Act does not apply to the present fact of the case. Accordingly, the learned munsif held that the civil court has jurisdiction to trial the suit between the parties.

The respondent thereafter, claiming to be aggrieved by the order, preferred a revision petition before the Guwahati High Court where the learned judge held that the party can claim relief as per the GMC act only. Subsequently, the appellant filed an appeal before this court only.

Observation of High Court over the Jurisdiction of Civil Court.

1. The learned counsel of both the parties had contended their thoughts in the court. The point which was of concern in the case was its nature and relief prayed. The court referred to para 9 of CPC – “ The court shall have the jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred” and order VII rule 11(d) of CPC which was invoked by high court itself- “ Where the suit appears from the statement in the plaint to be barred by any law”.

2. Then the learned court brought the attention to the sale deed of schedule A, B and C which indicates that the last part of the western boundary contained a water exhaust drain which is connected to the public drain of GMC.

3. The question which arose here was to ascertain whether the nature of the relief prayed falls exclusively within the ambit of GMC act and whether the relief prayed in civil court is barred by any provision contained in the GMC act and as per the section 9 of the CPC.

4. Regarding this question, it became necessary for the court to have a look over Section 341 of the GMC act which provides for the bar of jurisdiction of the civil court. Section 341 states that – “ Save as otherwise expressly provided no civil court shall have jurisdiction to settle, decide or deal with any question, which is by or under this part required to be settled, decided or dealt with by the Commissioner.” Here this section bares the civil court from interfering in the matter which is related to part 6 of the GMC act which includes the matter – Land, building and Streets. So, here in this case the dispute was over the common drain between the two private individuals which doesn’t come into the ambit of part 6 and hence Section 341.

5. The GMC act although empowers the commissioner under certain circumstances to look into the matter which is related to the use of drain connected with the municipal drain. The concerned sections are  Section 246 ( it gives obligation to owner or joint owner of drain to allow the use of it to other ) Section 247 ( How right of use of a drain may be obtained by a person other than the owner) Section 248  ( Commissioner may authority person other than the owner of a drain to use the same or declare him to be a joint user thereof ).

6. In the present case, the appellant is not seeking for creating of any rights, instead, the appellant is asserting to safeguard and to continue the exercise of existing right. This case is concerned with the fact that there is a drain which respondent is trying to alter its position which is needed to be restrained. It is nowhere concerned with sections 246, 247 and 248.

7. The learned court gave the reference of Shiv Kumar Chadha v. Municipal Corporation of Delhi and others[1] and Ramesh Gobindram v. Sugra Humayun Mirza Wakf [2]while examining the bar of the civil court.

8. The learned court also observed and said that the appellant could have also filed an application to the commissioner for remedy but it could be possible in that case only if the respondent had conceded the ownership of the drain. The court also remarked that even if in this case, the appellant was not made satisfied with the relief, then the appellant can approach to court for relief.

9. GMC act also provides for the relief of appeal under section 438, this was contended by the learned advocate of the respondent, here the court made the point that it doesn’t consider as an alternate and efficacious remedy in a case of present nature. The court remarked that the relief sought in the present case of declaratory in nature. The consideration by the statutory authority as provided under the GMC act is of summary nature.

Judgement of Guwahati High Court

The learned Judges held that the civil court is having the jurisdiction to entertain the case whose relief is declaratory by nature and justified the order of learned munsif in determining the jurisdiction of the civil court. The court gave the next date of 1.09.2021 to the parties to appear in the court of learned munisf where the suit shall be considered on its merits

References:-

1.https://main.sci.gov.in/supremecourt/2014/28589/28589_2014_43_1502_29202_Judgement_10-Aug-2021.pdf

2. https://indiankanoon.org/doc/96083492/

Editor:- Aashay Sundaram

College- Gautam Buddha University

Semester- 3rd


[1] (1993) 3 SCC 161

[2] (2010) 8 SCC 726

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