Allahabad High Court: In a petition filed by Nagar Panchayat challenging the order dated 08-11-2023 passed by Civil Judge (Junior Division) in a suit, rejecting the application filed by the it under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (‘CPC’) as well as the order passed by District Judge, in Civil Revision, dismissing the revision filed against the order dated 08-11-2023, Manish Kumar Nigam, J. has held that no illegality has been committed by the courts below in rejecting the application under Order 7 Rule 11 CPC filed by Nagar Panchayat on the ground that the suit is barred by Section 326 of the Municipalities Act, 1916, as notice under Section 326 of the U.P. Municipalities Act, 1916 is not mandatory if it will defeat the purpose of the injunction suit.
The respondents instituted a suit for permanent prohibitory injunction restraining the Nagar Panchayat from raising constructions and obstructing the right of way of the respondents.
The Nagar Panchayat contended that the suit is barred by Section 326 of the U.P. Municipalities Act, 1916 (‘Act, 1916’) as they have not received any notice as required under the Act, 1916. Further, the land in dispute belongs to Nagar Panchayat and the respondent has other ‘rasta’ to approach the road. Therefore, no suit for injunction is maintainable that too without giving notice to them as mandated under the Act 1916. Thus, the courts below have erred in law in rejecting the application of the Nagar Panchayat under Order 7 Rule 11 C.P.C.
The respondent contended that the question whether the suit is barred by Section 326 cannot be considered in an application under Order 7 Rule 11 C.P.C. and the application of the Nagar Panchayat was rightly rejected by the courts below.
Issue: Whether the suit filed by the respondents is barred for want of notice under Section 326 of U.P. Municipalities Act, 2016 as the respondents has not given any notice under Section 326 of the U.P. Municipalities Act, 1916 and as such the plaint is to be rejected, in view of Order 7 Rule 11 CPC (d).
Analysis:
The Court took note of the provisions of Section 326 of the U.P. Municipalities Act, 1916, which provides that no suit shall be instituted against a Municipality, or against a member, officer or servant of a Municipality, in respect of an act done in its official capacity, until the expiration of two months next after notice in writing has been given.
Further, it took note of sub-Clause 4 of Section 326, which provides that nothing in this sub-Section shall construe to apply to a suit, wherein the only relief claim is an injunction of which the object would be defeated by giving of notice or the postponement of the commencement of the suit or proceedings.
The Court reiterated that at a notice has to be given before instituting a suit against the Nagar Palika (Municipality) in view of the provisions of Section 326 of the Act, 1916, unless the case is covered by the exception given in sub-Clause 4 of Section 326.
After referring to Haji Ahmad Raza v. Municipal Board of Allahabad, 1952 SCC OnLine All 71 , the Court said that the exception given in sub-Section 4 has a very restricted meaning. Even in case of injunction, a notice is necessary to be given to the Board or its officer or servant covered by Sub-Section 1. Where the object of the suit would be defeated by giving notice in an injunction suit, such notice need not be given.
The Court further said that the ‘rasta’ in dispute is the only ‘rasta’ available to the respondent to approach the road. In case the aforesaid ‘rasta’ is obstructed by raising constructions by the Nagar Panchayat, the purpose of the suit would be defeated. Therefore, the Court held that no illegality has been committed by the courts below in rejecting the application under Order 7 Rule 11 CPC filed by Nagar Panchayat on the ground that the suit is barred by Section 326 of the Municipalities Act, 1916.
It added that, the contention of the respondent that the question whether suit is barred by Section Act, 1916 cannot be considered at the stage of deciding the application under Order 7 Rule 11, is misconceived.
Further, the Court noted that Order VII Rule 11(d) CPC provides that the plaint shall be rejected “where the suit appears from the statement made in the plaint to be barred by any law”. Thus, it said that to decide whether the suit is barred by law, it is the statement in the plaint will have to be construed. The Court while deciding such an application, must give due regard only to the statements made in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case.
It also added that at the time of deciding the application under Order 7 Rule 11 CPC, the Court has to look into only the averments made in the plaint. The case set up by the defendant in his written statement or in an application under Order 7 Rule 11 CPC cannot be looked into.
Moreover, the Court said that the case set up by the Nagar Panchayat can be considered only after framing an issue and considering the evidence led by both the parties at the time of deciding the said issue during trial and not at the stage of considering the application under Order 7 Rule 11 CPC.
Thus, it opined that the Courts below have rightly rejected the application under Order 7 Rule 11 CPC.
[Executive Officer Nagar v Stainli Khan, 2024 SCC OnLine All 279, Order dated 01-02-2024]
Advocates who appeared in this case:
Counsel for Petitioner: Advocate Ashok Kumar Tiwari
Counsel for Respondent: Advocate Dinesh Kumar Yadav, Advocate Atmaram Nadiwal
