Case Note & Summary
The petitioner, Omkar Pandit Bankar, filed a civil revision application challenging two orders passed by the Civil Judge, Junior Division, Jamner in Regular Civil Suit No.30 of 2011. The first order dated 14th March 2011 allowed an application under Section 91 of the Code of Civil Procedure, 1908 (CPC) filed by respondent nos.1 to 3 (Ashok Laxman Jadhav, Suklal Baliram Bari, and Kiran Ratan Jadhav), granting them permission to institute a suit against the petitioner and respondent no.4 (Gram Panchayat Pahur Kasabe). The second order dated 21st March 2011 rejected the petitioner's application under Order VII Rule 11 CPC for rejection of the plaint. The suit property was city survey no.2016, Gram Panchayat Property No.791 admeasuring 239.25 square feet situated at Mauje Pahur Kasabe, Taluka Jamner, District Jalgaon. Respondent nos.1 to 3 contended that the suit property was owned by the Gram Panchayat and used for public purposes, including ingress and egress, and that the petitioner had started unauthorized construction, causing public nuisance. They sought a declaration that the petitioner had no right to carry out new construction or repairs and a decree for demolition. The petitioner argued that the suit was not maintainable and that the plaint should be rejected. The High Court, after hearing arguments, dismissed the revision application, upholding the trial court's orders. The court found that the permission under Section 91 CPC was properly granted as the applicants had sufficient interest and the suit property was used for public purposes. The rejection of the Order VII Rule 11 application was also upheld as the plaint disclosed a cause of action and was not barred by law.
Headnote
A) Civil Procedure Code - Section 91 CPC - Permission to Sue for Public Nuisance - The trial court granted permission under Section 91 CPC to three private persons to institute a suit alleging unauthorized construction on Gram Panchayat property causing public nuisance. The High Court upheld the permission, holding that the applicants had sufficient interest as residents and that the suit property was used for public purposes. (Paras 1-3)
B) Civil Procedure Code - Order VII Rule 11 CPC - Rejection of Plaint - The petitioner's application for rejection of plaint was rejected by the trial court. The High Court affirmed, finding that the plaint disclosed a cause of action and that the suit was not barred by law. (Para 1)
Issue of Consideration
Whether the trial court was justified in granting permission under Section 91 CPC to respondent nos.1 to 3 to institute a suit for public nuisance and in rejecting the petitioner's application under Order VII Rule 11 CPC for rejection of plaint.
Final Decision
The civil revision application is dismissed. The orders dated 14th March 2011 and 21st March 2011 passed by the Civil Judge, Junior Division, Jamner are upheld.
Law Points
- Section 91 CPC
- Order VII Rule 11 CPC
- Public Nuisance
- Suit by Private Persons
- Gram Panchayat Property
- Maintainability of Suit
Case Details
2023 LawText (BOM) (01) 29
Civil Revision Application No.96 of 2011
Mr.M.M. Bhokarikar for Petitioner, Mr. R.V. Gore for respondent nos.1 to 3, Mr.V.P. Latange for respondent no.4
Shri Ashok Laxman Jadhav, Shri Suklal Baliram Bari, Shri Kiran Ratan Jadhav, The Gram Panchayat Pahur Kasabe
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Nature of Litigation
Civil revision application challenging orders granting permission under Section 91 CPC and rejecting application under Order VII Rule 11 CPC.
Remedy Sought
Petitioner sought setting aside of the order granting permission under Section 91 CPC and the order rejecting his application under Order VII Rule 11 CPC.
Filing Reason
Petitioner challenged the trial court's orders allowing respondent nos.1 to 3 to institute a suit for public nuisance and rejecting his application for rejection of plaint.
Previous Decisions
Trial court allowed application under Section 91 CPC on 14th March 2011 and rejected application under Order VII Rule 11 CPC on 21st March 2011.
Issues
Whether the trial court was justified in granting permission under Section 91 CPC to respondent nos.1 to 3 to institute a suit for public nuisance?
Whether the trial court was justified in rejecting the petitioner's application under Order VII Rule 11 CPC for rejection of plaint?
Submissions/Arguments
Petitioner argued that the suit was not maintainable and the plaint should be rejected under Order VII Rule 11 CPC.
Respondent nos.1 to 3 contended that the suit property was Gram Panchayat property used for public purposes and unauthorized construction caused public nuisance, justifying permission under Section 91 CPC.
Ratio Decidendi
Permission under Section 91 CPC can be granted to private persons who have sufficient interest in the public nuisance, and the plaint cannot be rejected under Order VII Rule 11 if it discloses a cause of action and is not barred by law.
Judgment Excerpts
This civil revision application is filed by the original defendant no.1 for challenging the order dated 21st March, 2011 passed by learned Civil Judge, Junior Division, Jamner below Exhibit-24 in Regular Civil Suit No.30 of 2011 as well as order dated 14th March, 2011 passed by learned Civil Judge, Junior Division, Jamner on an application made under Section 91 of the Code of Civil Procedure 1908.
Respondent nos.1 to 3 filed an application under section 91 of CPC, thereby contending that the respondent no.4 – Gram Panchayat was trying to alienate the suit property without following any due process and the petitioner has started carrying out unauthorized construction on the suit property.
Procedural History
Respondent nos.1 to 3 filed an application under Section 91 CPC before the Civil Judge, Junior Division, Jamner, which was allowed on 14th March 2011. Thereafter, they instituted Regular Civil Suit No.30 of 2011. The petitioner filed an application under Order VII Rule 11 CPC for rejection of plaint, which was rejected on 21st March 2011. The petitioner then filed the present civil revision application challenging both orders.
Acts & Sections
- Code of Civil Procedure, 1908: Section 91, Order VII Rule 11
