Case Note & Summary
The case involves a second appeal filed by the Nagpur Improvement Trust (appellants) against the judgment in Regular Civil Suit No. 571 of 2002. The original plaintiff, Ratiram Sitaram Patil, had filed the suit challenging a notice dated 15.12.2001 issued under Section 286(2) of the City of Nagpur Corporation Act read with Section 52 of the Nagpur Improvement Trust Act, which called for demolition of unauthorized construction carried out without obtaining sanction. The plaintiff's stand was that a scheme for sanction of 1900 layouts was under progress and he was ready to pay the amount levied. During the pendency of the second appeal, the Nagpur Improvement Trust issued a Memo dated 06.09.2008 informing the plaintiff that the building was affected by DP reservation/owing to encroachment and no ownership documents were produced, and the application for regularization of Plot No. 2 and construction was rejected. The respondent's counsel submitted that this Memo had been challenged by filing a separate suit. Consequently, the subject matter of the present suit had become infructuous. The court, after hearing both sides, disposed of the second appeal as infructuous, with the observation that none of the findings recorded by the courts below shall come in the way of the parties in the separate proceedings.
Headnote
A) Civil Procedure - Infructuous Suit - Subsequent Event - Suit challenging demolition notice under Section 286(2) of City of Nagpur Corporation Act read with Section 52 of Nagpur Improvement Trust Act became infructuous when regularization application was rejected by subsequent memo - Court disposed of appeal as infructuous with observation that findings of lower courts shall not prejudice parties (Paras 3-5).
Issue of Consideration
Whether the second appeal challenging the judgment in a suit for injunction against demolition notice has become infructuous due to subsequent rejection of regularization application.
Final Decision
The second appeal is disposed of as infructuous with the observation that none of the findings recorded by the courts below shall come in the way of the parties.
Law Points
- Subsequent event rendering suit infructuous
- dismissal of appeal as infructuous
- findings not to prejudice parties
Case Details
2016 LawText (BOM) (07) 141
Second Appeal No. 176 of 2014
Shri R.O.Chhabra for appellants, Shri P.K.Mishra for respondent
Chairman, Nagpur Improvement Trust, Sadar, Nagpur; Divisional Officer, Nagpur Improvement Trust, South Zone, Hanuman Nagar, Nagpur; Assistant Engineer (Enforcement), South East Division, Nagpur Improvement Trust, Hanuman Nagar, Nagpur
Ratiram s/o Sitaram Patil
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Nature of Litigation
Second appeal against judgment in Regular Civil Suit No. 571 of 2002 challenging demolition notice under Section 286(2) of City of Nagpur Corporation Act read with Section 52 of Nagpur Improvement Trust Act.
Remedy Sought
Appellants (Nagpur Improvement Trust) sought to challenge the judgment of the lower courts in the suit filed by the respondent.
Filing Reason
The respondent had filed the suit challenging the demolition notice dated 15.12.2001 for unauthorized construction.
Previous Decisions
The suit was decreed by the trial court and the appeal was dismissed by the first appellate court, leading to the second appeal.
Issues
Whether the second appeal has become infructuous due to subsequent rejection of regularization application by Memo dated 06.09.2008.
Submissions/Arguments
Appellants' counsel argued that the Memo dated 06.09.2008 rejected the regularization application, making the suit infructuous.
Respondent's counsel submitted that the Memo was challenged by filing a separate suit, and the present suit had become infructuous.
Ratio Decidendi
A suit challenging a demolition notice becomes infructuous when the regularization application is subsequently rejected, as the cause of action changes. The court may dispose of the appeal as infructuous without adjudicating on merits, leaving the parties to pursue remedies in separate proceedings.
Judgment Excerpts
In view of above, the second appeal is disposed of with the observation that none of the findings recorded by the Courts below shall come in the way of the parties.
Procedural History
Regular Civil Suit No. 571 of 2002 was filed by the respondent challenging demolition notice dated 15.12.2001. The suit was decreed. The first appeal was dismissed. The appellants filed Second Appeal No. 176 of 2014. On 29.03.2016, the court admitted the appeal on a substantial question of law. During hearing, it was brought to notice that a Memo dated 06.09.2008 rejected the regularization application, which was challenged in a separate suit. Consequently, the present appeal was disposed of as infructuous on 28.07.2016.
Acts & Sections
- City of Nagpur Corporation Act: Section 286(2)
- Nagpur Improvement Trust Act: Section 52
