Ratul Mahanta vs Nirmalendu Saha

HELD: 1.1 A bare perusal of Section 9 CPC indicates that the courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Though in the instant case, the issue had not arisen before the Munsif while considering an application under Order VII Rule 11(d) of CPC, taking note of the fact that the High Court has invoked the said provision to consider as to whether the suit is barred and has thereafter held that the civil court has no jurisdiction and ordered rejection of plaint. The perusal of Order VII Rule 11(d) CPC would indicate that there would be a bar for the civil court to entertain the suit, if such suit is barred either expressly or impliedly by any law. Further, Order VII Rule 11(d) contemplates that from the statement contained in the plaint the suit should appear to be barred by any law, in which case the plaint shall be rejected. [Para 7][99-F-H; 100-AD]

1.2 On perusal of the contents of Section 341 of the Guwahati Municipal Corporation Act, 1971, it indicates that no civil court shall have jurisdiction to settle, decide or deal with any question which is under that part wherein Section 341 is placed and is required to be settled, decided or dealt with by the Commissioner. The Part VI under which a bar is imposed relates to Land, Buildings and Streets. Therefore, on the face of it, it indicates that the issue relating to a common drain between two private individuals residing within the limits of the Municipal Corporation is not an issue regarding which a specific bar is contemplated against approaching the civil court for relief. [Para 11][101-E-G]

1.3 The GMC Act no doubt makes provision to empower the Commissioner under certain circumstances to regulate the manner in which the use of the drain connected with the municipal drain is to be used. The provisions to that effect are contained in Sections 246, 247 and 248, in Part V of GMC Act. Perusal of the said provisions would indicate that the Commissioner is empowered by granting the authority under GMC Act to compel the owner or joint owner of a drain to permit a person who is not the owner of such drain to use that drain. In effect, the Commissioner is given the authority to create a right in favour of the property owner to drain out the water through the drain owned by any other property owner. In the instant case the appellant is not seeking for creation of such right. The case as pleaded and noticed indicates that the appellant is asserting about a right which existed and is seeking to safeguard and continue to exercise such right. The case pleaded is not to the effect that any of them own the drain but it is contended that it existed as the western boundary of all the properties in the vicinity and the respondent is seeking to alter that position and is therefore to be restrained. Whether the appellant will succeed or not will depend on the evidence that will be produced to support the pleading. [Para 12, 13][101-G-H; 102-G-H; 103-A-B]

1.4 It is seen that Sections 246, 247 and 248 of the GMC Act though referred to the ownership and the manner in which the drains connected to municipal drain are to be used and the Commissioner is given the authority to compel the owner of a drain to permit another property owner to use the same, the said provisions cannot be considered either as an express or an implied bar on the civil court to entertain a suit relating to the declaration of an existing right to use of the drain. [Para 16][106E-F]

1.5 In fact, the existence of a drain as claimed by the appellant in the plaint as on the date of purchase of the property and the same being used throughout is an issue which is to be proved based on the evidence that would be tendered in the suit. The provisions contained in Section 246, 247 and 248 of the GMC Act would be the provisions which would come to the aid of the appellant if ultimately the respondent establishes his ownership right over the drain, despite the appellant proving the existence of the drain. No doubt, the appellant could have also filed an application to the Commissioner seeking the relief to which the Commissioner could exercise his authority but that would have arisen only if the appellant had conceded to the position that the respondent is the owner of the drain. Even in such circumstance, if relief was not made available to the appellant by the Commissioner and if he was dissatisfied with the manner in which such authority was exercised by the Commissioner it would still have been open to approach the court for relief. The Advocate for respondent has in this regard contended that an appeal is provided under Section 438 of GMC Act. However, it is not considered as an alternate and efficacious remedy in a case of the present nature. The relief sought in the instant suit is in the nature of declaratory relief in an inter se dispute between the parties. The consideration by the statutory authority as provided under GMC Act is of summary nature. Further, the appeal provided is in respect of any notice issued or action taken or proposed to be taken by the Commissioner, which in effect provides the appeal remedy only to the owner of the drain against whom action is proposed. [Para 17][106-F-H; 107-A-D]

1.6 In the instant case, the averments contained in the plaint and the prayer made would disclose that the appellant is not seeking for creation of a right over the drain owned by the defendant nor is any issue raised with regard to the drain of GMC. But the case as put forth is that the property of the appellant, SD and the defendant are contiguous to one another which are shown as suit schedule ‘A’, ‘B’ and ‘C’ properties and on the western side of the property starting from the appellant’s property, there is a drain, which is shown as the boundary and it facilitates the water to flow into the GMC drain. Such relief is to be considered in the suit based on the evidence that would be tendered. Therefore, such relief is not barred under any law. [Para 18][107D-F]

1.7 It is clear that the High Court without taking note of these aspects of the matter has wrongly invoked the provisions contained in Order VII Rule 11 (d) CPC to reject the plaint, when in the instant facts there is neither express nor implied bar under any law. On the other hand, the Munsif was justified in passing the order holding the suit to be maintainable. The order passed by the High Court is set aside. [Para 19, 20][107-F-H] Shiv Kumar Chadha v. Municipal Corporation of Delhi and Others (1993) 3 SCC 161 : [1993] 3 SCR 522; Ramesh Gobindram v. Sugra Humayun Mirza Wakf

(2010) 8 SCC 726 : [2010] 10 SCR 945 – referred to.