Case Note & Summary
The appellant, Pratapsingh Raoji Rane, filed a suit for mandatory injunction against the respondents, Jitendra Zoiba Rane and others, alleging encroachment on his plots. The trial court and first appellate court dismissed the suit on the ground that the appellant failed to comply with Order 7 Rule 3 of the Code of Civil Procedure, 1908, by not filing a plan or sketch identifying the encroachment. The appellant filed a second appeal before the Bombay High Court at Goa, which was admitted on two substantial questions of law: whether non-compliance of Order 7 Rule 3 CPC is fatal, and whether the appellate court's finding that the plaintiff's evidence cannot be considered in the absence of a plan/sketch is perverse. During the hearing, the court noted that there was no dispute regarding ownership of the plots; the only dispute was about the demarcation line. The court observed that the courts below had already found that the appellant's ownership was established, yet they non-suited him solely on the ground of non-compliance of Order 7 Rule 3. The High Court held that Order 7 Rule 3 is directory and not mandatory, and non-filing of a plan is not fatal if the property can be identified by other evidence. The court found the appellate court's finding perverse and set aside the concurrent findings. The matter was remanded to the trial court for fresh disposal in accordance with law, with a direction to decide the suit within six months. The court also discharged the surveyor who had submitted a report as per earlier directions.
Headnote
A) Civil Procedure Code - Order 7 Rule 3 - Non-Compliance - Fatal or Not - The provision requiring description of property sufficient for identification is directory; non-filing of plan/sketch is not fatal if the property can be identified by other evidence on record. Held that the courts below erred in non-suiting the appellant solely on ground of non-compliance of Order 7 Rule 3 CPC (Paras 5-6). B) Civil Procedure Code - Order 7 Rule 3 - Perversity of Finding - The Appellate Court's finding that plaintiff's evidence cannot be considered in absence of plan/sketch is perverse. Held that such finding is unsustainable as the ownership of plots was established and the dispute was only about demarcation line (Paras 5-6).
Issue of Consideration
Whether non-compliance of Order 7 Rule 3 CPC is fatal to a suit for mandatory injunction; whether the finding of the Appellate Court that plaintiff's evidence cannot be taken into account in the absence of plan/sketch to plaint is perverse.
Final Decision
The appeal is allowed. The impugned judgment and decree of the Appellate Court is quashed and set aside. The matter is remanded to the trial court for fresh disposal in accordance with law. The trial court is directed to decide the suit within six months from the date of appearance of the parties. The surveyor is discharged.
Law Points
- Order 7 Rule 3 CPC is directory
- not mandatory
- non-compliance is not fatal if property can be identified by other evidence
- perversity of finding that plaintiff's evidence cannot be considered without plan/sketch
