Case Note & Summary
The case involves a civil revision application filed by Damodar Dnyandeorao Sarap, the original defendant no.1, challenging an order dated 03/01/2017 passed by the Civil Judge (Junior Division), Balapur, District Akola in R.C.S. No. 61/2016. The trial court had rejected the defendant's application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint. The plaintiff, Haribhau Govindrao Pakdane, had filed the suit alleging that the defendant had made an encroachment upon a public property or open space and had made illegal and unauthorized construction on his property, causing inconvenience to the plaintiff. The defendant contended that the suit was barred by Section 53(2A) of the Maharashtra Village Panchayat Act, which provides an alternate efficacious remedy for such grievances. The learned counsel for the petitioner, Shri J.B. Gandhi, and the counsel for respondent no.2, Shri K.P. Mahalle, supported this view, relying on the case of Village Panchayat, Antora through its member Vs Wasudeo Ramchandraji Mohod and another, 2014(5) Bom.C.R. 601. The counsel for the plaintiff, Shri R.L. Khapre, argued that it was not necessary for the plaintiff to plead the nature of the property in specific words and that the suit was maintainable. The High Court, after hearing the parties, allowed the civil revision application, set aside the trial court's order, and rejected the plaint under Order 7 Rule 11 CPC, holding that the suit was barred by Section 53(2A) of the Maharashtra Village Panchayat Act.
Headnote
A) Civil Procedure - Rejection of Plaint - Order 7 Rule 11 CPC - Bar of Suit - Alternate Remedy - The court considered whether a suit for removal of alleged encroachment on public property/open space is barred by Section 53(2A) of the Maharashtra Village Panchayat Act, which provides an alternate efficacious remedy before the Village Panchayat. The court held that the suit was barred and the plaint was liable to be rejected under Order 7 Rule 11 CPC. (Paras 2-9) B) Maharashtra Village Panchayat Act - Alternate Remedy - Section 53(2A) - Encroachment on Public Property - The provision provides a complete code for redressal of grievances regarding encroachment on public property or open space or illegal construction causing inconvenience to neighbors. The court held that the civil suit is not maintainable as the plaintiff must avail the remedy under Section 53(2A) before the Village Panchayat. (Paras 3-9)
Issue of Consideration
Whether a civil suit for removal of encroachment on public property is barred by Section 53(2A) of the Maharashtra Village Panchayat Act, which provides an alternate efficacious remedy.
Final Decision
Civil Revision Application allowed. Order dated 03/01/2017 passed by Civil Judge (Junior Division), Balapur, District Akola in R.C.S. No. 61/2016 is set aside. The plaint in R.C.S. No. 61/2016 is rejected under Order 7 Rule 11 of CPC.
Law Points
- Order 7 Rule 11 CPC
- Section 53(2A) Maharashtra Village Panchayat Act
- Alternate efficacious remedy
- Bar of civil suit
