Chhedilal and Anr. Vs. Rajaram (deceased) through his L.R's. and Anr. (13.08.2007 - ALLHC) - Court Judgment

Pankaj Mithal, J.

1. The defendants-appellants have preferred this appeal against the judgment, order and decree dated 15.1.1975, passed in Civil Appeal No. 316 of 1963, arising from Original Suit No. 806 of 1970, between Rajaram and Anr. v. Municipal Board, Mauranipur and Ors. and has prayed that the impugned judgment, order and decree of the lower appellate court be set aside and that of the trial court be restored.

2. Before adverting to the factual matrix of the present case, it is proper and relevant to point out that previously the present plaintiff-respondent No. 1 Rajaram had filed another Suit No. 1089 of 1966 against the present defendants-appellants for permanent injunction restraining them from operating the oil expeller (kollhu) and the flour mill (chakki) from the ahata in question on the ground that it created public nuisance. The said suit was re-numbered as Original Suit No. 32 of 1969 and af^et contest was dismissed by the judgment and order dated 30.7.1971.

3. It was held that the said ahata, thernour mill and the oil expeller are situate within the busy market area where large number of other similar kind of business units are going on. The noise and vibration if any created by the running of the machines of such units is so insignificant looking to the area in which they are located that it create no actionable nuisance.

4. The plaintiff-respondent No. 1 Rajaram (since deceased now represented by his heirs and legal representatives) then instituted Original Suit No. 806 of 1970 for mandatory injunction directing the defendant-respondent No. 2 herein, i.e., Municipal Board, Mauranipur, district Jhansi to cancel the licence granted to the defendants-appellants Chhedilal and Shyam Behari to run a flour mill and an oil expeller from ahata Municipal No. 1458 situate: in Mauranipur, district Jhansji.

5. The aforesaid suit was filed with the allegations that the plaintiff-respondent No. 1 is the owner of the House No. 1459. Adjoining to it, on its western side is ahata bearing Municipal No. 1458 of which the defendants-appellants are tenants. One of the defendant-appellant i.e., Chhedilal had obtained a licence from the Municipal Board to run a flour mill and an oil expeller from the said ahata in the year 1966 but the same was cancelled on 17.3.1969 in view of the interim injunction granted by the civil court in the earlier suit. However, again licence to the same effect has been granted in 1969 which is liable to be cancelled as it has been issued in contravention of the municipal bye-laws.

6. The suit was contested by the defendants-appellants by stating that the licence was duly issued by the Municipal Board in accordance with the bye-laws. The plaintiff-respondent No. 1 had preferred an appeal against the grant of said licence before the Commissioner of the division which was rejected whereupon the matter was allowed to rest. The earlier Suit No. 1089 of 1966, Rajaram v. Shyam Bihari renumbered as Original Suit No. 32 of 1969, instituted by the plaintiff-respondent No. 1 restraining the defendants appellants from running the flour mill in the said ahata was dismissed vide judgment and order dated 30.7.1971. Therefore, the present suit is barred by time and principle of res judicata.

7. The Court of first instance on the basis of pleadings framed necessary issues. The main and relevant issues were as under:

1. Whether the licence granted to the defendant Nos. 2 and 3 (appellants) by the defendant No. 1 Municipal Board is in contravention of the municipal bye-laws;

2. Whether the suit is barred by the principle of res Judicata; and

3. Whether the suit is barred by time.

8. Apart from the above issues, there were two other issues with regard to valuation and payment of court fees and as to the relief to which the plaintiff-respondent No. 1 is entitled to under law.

9. The trial court dismissed the suit vide judgment and order dated 11.10.1973 holding that the suit is barred by Section 11, C.P.C., but the suit was held to be within time and a further finding was returned that the licence granted to the defendant-appellants to run a flour mill and the oil expeller is in violation of the municipal bye-laws.

10. Aggrieved by the judgment and order of the trial court the plaintiff-respondent No. 1 preferred Civil Appeal No. 316 of 1973. The lower appellate court held that the suit is not barred by Section 11. C.P.C. and thus allowed the appeal and passed a decree of mandatory injunction directing the respondent No. 2 Municipality Board to cancel the licence of the defendant-appellant to run the flour mill and the oil expeller. The finding of the trial court that the licence issued to the defendant-appellant was in contravention of bye-laws was upheld as no cross-objections against the said finding was preferred by the defendant-appellant in appeal. Thus, the suit was decreed.

11. Heard Sri V.K.S. Chaudhary, senior advocate assisted by Sri Om Prakash Mishra for the defendants-appellants and Sri A.N. Bhargava for the plaintiff-respondent No. 1. The respondent No. 2 Municipal Board is a formal party against whom no relief has been claimed and probably therefore, it has gone unrepresented.

12. At the outset Sri Bhargava, learned Counsel for the plaintiff-respondent No. 1 submitted that this second appeal does not involve any substantial question of law and is therefore, liable to be dismissed. Sri Chaudhary in reply submitted that this is a second appeal of the year 1975 which stands admitted and, therefore, substantial question of law is not necessary to be framed in deciding the same.

13. In view of the submissions, a very interesting question of law had arisen which in itself is a substantial question of law, i.e., whether the formulation of a substantial question of law is necessary in second appeals which have been preferred and presented before the enforcement of C.P.C. (Amendment) Act, 1976 (104 of 1976) w.e.f. 1.2.1977.

14. Prior to the enforcement of the above amendment, second appeal under Section 100, C.P.C. was maintainable on the following grounds:

(a) the decisions being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or detect in the decision of the case upon the merits;

(2) An appeal may lie under this section from an appellate decree passed ex parte.

15. In other words, it meant that the second appeal would be maintainable to the High Court even on a question of law. The framing of substantial question of law before deciding the second appeal was made mandatory vide Section 37, C.P.C. Amendment Act, 1976 w.e.f. 1.2.1977 (hereinafter referred to as an Amendment Act). However, Section 97 (2) (m) of the Amendment Act, provides as under:

(m) the provisions of Section 100 of the Principal Act, as substituted by Section 37 of this Act, shall not apply to or affect any appeal from an appellate decree or order which had been admitted, before the commencement of the said Section 37, after hearing under Rule 11 of Order XLI ; and every such admitted appeal shall be dealt with as if the said Section 37 had not come into force.

16. A plain reading of Section 97(2)(m) of the Amendment Act indicates that the amendment introduced by Section 37 of the said Act with regard to framing of substantial question of law before deciding second appeals would not apply to the second appeals which have been admitted before the enforcement of the aforesaid Section 37 and every such admitted appeal shall be decided as if the amendment brought about by Section 37 had not come into force. In other words, the amendment brought about by Section 37, C.P.C. is not to come in way of deciding the second appeals which have been admitted before the enforcement of the Amendment Act and therefore, no substantial question of law is required to be framed in second appeal which have been admitted prior to 1.2.1977.

17. The case law in Govindraju v. Mariamman 2005 (1) AWC 787 (SC) and Ram Sakhi Devi v. Chhitra Devi and Ors. 2005 (3) AWC 2497 (SC), cited by Sri Bhargava in support of his submission that formation of the substantial question of law is a sine qua non for exercising jurisdiction under Section 100, C.P.C. are not applicable to the facts and circumstances of the present case as in none of the above two authorities the position of law which existed prior to the enforcement of the Amendment Act, has been considered and taken into account. Both the cases deals with the position of law in respect of second appeals preferred subsequent to the enforcement of the Amendment Act. No other decision has been placed before me to demonstrate that framing of substantial question of law before deciding the second appeal is mandatory even in second appeals which have been preferred and admitted prior to the enforcement of the Amendment Act.

18. The present appeal is undisputedly an appeal which was preferred and admitted prior to 1.2.1977 when Amendment Act had not come into force. Therefore, in my opinion it is not at all mandatory to frame a substantial question of law in a second appeal which has been preferred and admitted prior to 1.2.1977. Such appeals are to be decided as per the law which was then existing as if the amendment vide Section 37 of the Amending Act had not been enforced.

19. Now on merits of the second appeal.

20. The first argument of Sri Chaudhary is that the civil suit for mandatory injunction directing the Municipal Board to cancel the licence is not maintainable and, therefore, the judgment, order and decree of the lower appellate court is completely without jurisdiction and a nullity. The U.P. Municipalities Act, 1916 (hereinafter referred to as the Municipalities Act) provides for a complete mechanism for the cancellation of the licences and therefore, civil suit is impliedly barred. Sri A. N. Bhargava in opposition contended that no such plea with regard to the maintainability of the suit or jurisdiction of the civil court was raised by the defendants-appellants in the courts below and as such no issue in this regard was framed.

21. In the absence of the pleadings-and the issue on the point, the defendants-appellants cannot be permitted to raise the same for the first time in second appeal. In rejoinder Sri Chowdhary submitted that the maintainability of the suit goes to the very root of the jurisdiction of the Court and is purely a legal issue in which no factual aspect is involved and, therefore, there is no bar under law in raising the same for the first time even in the second appeal.

22. Generally, the parties are not allowed to depart from the facts originally pleaded by them. However, new plea which is purely of a legal nature is some times permissible to be raised afterwards and even in appeal or second appeal.

23. In Yeshwant Deorao v. Walchand Ramchand : [1950]1SCR852 , the Supreme Court relying upon the observations of Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh (1892) AC 473, observed that a question of law raised for the first time in a court of appeal can be entertained when it does not involve question of fact. The Supreme Court quoted the observations of Lord Watson in Connecticut Fire Insurance Co. (supra), with affirmance as under:

When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less advantageous position than the courts below.

24. The same view has been expressed by the Privy Council in Official Liquidator of M.E. Moola Sons, Ltd. v. Perin R. Burjorjee . In this case also much reliance was placed upon the observation of Lord Watson in the case of Connecticut Fire Insurance Co. (supra), and it was held that a question of law which does not involve any questions of fact can be permitted to be raised for the first time in the Court of last resort. In Ram Kristo Mandal and Anr. v. Dhankisto Mandal : [1969]1SCR342 , it has been held that the point of pure law apparent on the face of the record which involve no further development by evidence may be taken in second appeal, even though it may not have been raised in the courts below. Further in Kedar Lal Seal and Anr. v. Hari Lal Seal : [1952]1SCR179 , the Apex Court while interpreting the nature of pleadings in the light of Order VI, Rule 2, C.P.C. observed that the Court should be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, howsoever clumsily or inartistically the plaint may be worded.

25. Accordingly, the position of law that emerges is that a point of law may be taken at any time provided that for its decision no fresh finding of fact is necessary. In other words, if the facts are admitted or if the findings of the Court on facts are enough for the decision of the point of law raised, the court of law is bound to hear the point of law so raised and if necessary give effect to it.

26. The case laws Kaveripatnam Subbaraya Setty Annaiah Setty Charities Trust v. S.K. Viswanatha Setty 2004 (4) AWC 3611 (SC) and Babu Ram alias Durga Prasad v. Indra Pal Singh (dead) by L.Rs. : [1998]3SCR1145 , provides that a plea which had not been taken earlier cannot be raised in second appeal particularly in absence of material to substantiate the same. These rulings are of no help to the plaintiff-respondent inasmuch as in both the above cases the new plea which was sought to be raised was dependent upon factual aspects and material was required to substantiate the pleas, therefore, the Supreme Court held that such pleas, if any, not taken earlier cannot be taken in second appeal.

27. The Supreme Court in the case of Urban Improvement Trust, Jodhpur v. Gokul Narain and Anr. : AIR1996SC1819 , has observed as under:

The civil court granted decree of eviction. When objection was raised in execution the executing Court rejected the same. On appeal, this Court had held that a decree passed by a Court without jurisdiction over the subject-matter or on any other ground which goes to the root of its exercise of jurisdiction or inherent jurisdiction, is a nullity. A decree passed by such a Court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party.

28. In another case Kesar Singh and Ors. v. Sadhu : [1996]1SCR1017 , the Supreme Court reiterated that when the matter goes to the root of the jurisdiction the plea of nullity of the decree can be raised even in execution.

29. In view of the above settled legal position there is no second opinion that a legal plea which goes to the root of the jurisdiction of the Court and renders the decree a nullity can be taken at any stage of the proceedings including execution provided there is no dispute on facts which requires evidence. The said plea on the face of it does not involve any factual aspect or evidence to adjudicate the same. Therefore, the defendants-appellants are not barred from taking the above plea for the first time in the second appeal.

30. The plea that the jurisdiction of the civil court is impliedly barred in respect of cancellation of the licence granted by the municipal board is a plea which is purely legal in nature and no material is required to substantiate the same except for considering the various provisions of the law. The said plea involves the question of the jurisdiction of the Court. Therefore, in my opinion there is no harm in permitting the defendant-appellant to raise the same for the first time in second appeal.

31. Now it has to be examined as 'to whether a civil suit for cancelling the licence granted by Municipal Board is maintainable or not.

32. In this connection it would be relevant to refer certain provisions of the U.P. Municipalities Act, 1916. Section 60 of the aforesaid Act provides for the functions of the Municipal Board that may be discharged by the Executive Officer. It includes the power to grant and issue any licence other than a licence for a slaughter house or hackney carriage and also the power to suspend or withdraw any such licence. Section 61 of the Municipalities Act provides for an appeal to the board from the order of the executive officer in respect of a licence.

33. A further appeal has been provide against the decision of the Board to an officer to be appointed by the State Government for the purpose which happens to be the Commissioner of the Division. Section 318 of the Municipalities Act, provides that any person aggrieved by any order or direction made by a Board under the powers conferred upon it by or under bye-laws made under heading 'G' of Section 298 of the Municipalities Act may appeal to the officer appointed by the Government within 30 days. Under heading 'G' of Section 298 of the Municipalities Act, the Board is competent to frame bye-laws for the purposes likely to cause a public nuisance and it is in exercise of this power that the bye-laws have been framed under which the licence was granted to the defendant-appellants. Section 319 of the Municipalities Act makes a provision for a reference to the High Court if during course of hearing of an appeal under Section 318 of the Municipalities Act any question arises as to the illegality of the apprehension, direction, notice or order.

34. Thus a bare perusal of the aforesaid provisions of the Municipalities Act clearly demonstrates that a specific remedy of an appeal has been provided under the Municipalities Act for getting the licence cancelled alleged to have been issued illegally. The plaintiff-respondent No. 1 in the present case did apply for the cancellation of the licence of the defendants-appellants before the Commissioner. However, his appeal was dismissed on 29.10.1969 with the observation that the appeal lay before the Municipal Board. However, the plaintiff-respondent No. 1 for reasons best known to him failed to avail the said remedy and allowed the licence to remain intact. After being unsuccessful in getting the licence cancelled/revoked through the mechanism provided under the Municipalities Act, he resorted to the civil proceedings and instituted the present suit.

35. It is settled legal position that jurisdiction of the civil court to entertain a suit is plannery in nature unless ousted by an expressly or impliedly under any law. Section 9, C.P.C. provides as under:

9. Courts to try all civil suits unless barred.-The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred.

36. Therefore, Section 9, C.P.C. itself provides that though the civil courts have jurisdiction to try all suits it will have no jurisdiction, if the same is ousted expressly or by implication of law. It is also settled proposition of law that if a decree is passed by a Court having no jurisdiction it would be a nullity and the question of nullity can be raised at any stage including execution.

37. In the case of State of Bihar v. Dhirendra Kumar and Ors. the Supreme Court while dealing with the competence of the civil court in entertaining a suit with regard to the validity of the Sections 4 and 6 of the Land Acquisition Act held that the civil court has no jurisdiction inasmuch as Land Acquisition Act is a complete code in itself meant to serve public purpose and therefore, by necessary implication the power of the civil court to take cognizance of the suit under Section 9, C.P.C. stands excluded. The relevant portion of the Supreme Court decision is reproduced herein below:

Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under Section 9 of C.P.C. stands excluded, and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4 and declaration under Section 6 except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable. When such is the situation, the finding of the trial court that there is a prima facie triable issues is unsustainable. Moreover, possession was already taken and handed over to Housing Board. So the order of injunction was without jurisdiction.

38. The same view was expressed by the Supreme Court in the case of Laxmi Chand and Ors. v. Gram Panchayat, Kararia and Ors. : AIR1996SC523 . Here also the Supreme Court was ceased with the issue of jurisdiction of the civil court to take cognizance of a civil suit questioning the validity of the Land Acquisition proceedings. The Supreme Court ruled as under:

3. The crucial question that arises for consideration is whether the High Court was right and justified in interfering with the acquisition. It is seen that out of the extent of Ac. 3.589, the claim of the respondents is only Ac. 0.240 dec. In other words, only around 1162 sq. yards. All others had accepted the award, a few of them under protest. It is common knowledge that possession would always be taken under a memo and handing over also would be under a memo. It is a recognised usual practice in all the acquisition proceedings. By operation of Section 17(1) even before award could be made, the Land Acquisition Officer is entitled to take possession of the land. He did so. The time mentioned in Sections 9 stood expired by them. Even otherwise, award was made on November 2, 1976. By operation of Section 16 of the Act right, title and interest in the land vested in the Government absolutely free from all encumbrances. Thereby the Government became the absolute owner with effect from April 12, 1976. This Court in the case of Satendra Prasad Jain and Ors. v. State of U.P. and Ors. : AIR1991SC2153 , had held that one possession has been taken validity of the notification under Section 4(1) and declaration under Section 6 cannot be gone into and Section 11A does not apply.

39. Further in the case of S. Vanathan Muthuraja v. Ramalingam alias Krishnamurthy Gurukkal and Ors. : [1997]3SCR581 , it was noted that the jurisdiction of the civil court is to try all suits of civil nature except where it is expressly barred. It also lays down that when the, jurisdiction Is conferred upon a Tribunal and the law gives finality to the orders of the Tribunal the jurisdiction of the civil court is excluded.

40. In view of the above legal position the Municipalities Act which provides for a complete mechanism for the redressal of the dispute arising therein especially with regard to grant and cancellation of licences, the jurisdiction of the civil court under Section 9 of the C.P.C. stands excluded by necessary implication and the civil court is not competent to entertain any suit directing the Municipal Board to cancel the licence granted.

41. Apart from the above Section 41(h) of the Specific Relief Act, 1963 provides that an injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceeding. The relief for cancellation of the licence to operate chakki and the kollhu can certainly be availed by the plaintiff-respondent by way of appeal under the provisions of the Municipalities Act. Therefore, the suit for mandatory Injunction directing the municipal board to cancel the licence so granted was not even maintainable and the courts below were not competent to grant any injunction in this regard.

42. To conclude it is held that the suit itself was not maintainable for lack of jurisdiction on part of the civil court therefore, the decree is nothing but non est and a nullity. It is therefore, liable to be set aside.

43. In view of the above reasoning that the civil suit was not competent, there is no necessity for me to dwell with other disputes such as the suit being barred by time, principle of res judicata the effect of non-filing of the cross objection and issuance of licence in contravention of the bye laws.

44. In the ultimate analysis the appeal is allowed. The judgment, order and decree passed by the lower appellate court dated 15.1.1975 in Civil Appeal No. 316 of 1973, Rajaram v. Municipal Board and Ors. is set aside and the suit is dismissed as not maintainable. No orders as to costs.