Sheikh Ibrahim Vs. Smt. Shameem Begum - Court Judgment

Excerpt:
- madhya pradesh municipal corporation act (23 of 1956)section 91 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k.seth, jj] public nuisance - suit for injunction - held, section 91(i) of the c.p.c. is not exhaustive of the remedies that are available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. the remedy of the corporation and any other person under sub-section (5) of section 307 of the act of 1956 is independent of the provisions of section 91 of the c.p.c. and not only the corporation but any other person can apply to the district court for injunction or removal or alteration of a building on the ground that the provisions of the act of 1956 or the bye-laws made thereunder have been contravened. sections 41(j) & 4 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth, jj] relief of injunction held, the reliefs under the specific relief act, 1963 are granted for the purpose of enforcing individual civil rights as will be clear from section 4 of the specific relief act. 1963. accordingly, injunction under part iii of the specific relief act, 1963 is granted to the plaintiff either to prevent a breach of an obligation in favour of the plaintiff, or to compel the performance of an obligation in his favour. unless, therefore, there is an obligation in favour of the plaintiff which needs to be enforced, the court cannot grant injunction. hence, it is provided in section 41(j) of the specific relief act. 1963 that an injunction cannot be granted when the plaintiff has no personal interest in the matter. the provisions of the specific relief act, 1963 do not apply to the right conferred on the corporation and any other person under sub-section (5) of section 307 of m.p. municipal corporation act, 1956. under the provisions of the act of 1956, every building must comply with the provisions of the act of 1956 and the byelaws made thereunder and hence if there is any breach of the provisions of the act of 1956 or the bye-laws made thereunder, sub-section (5) of section 307 of the act of 1956 confers a right not only on the corporation but also any other person to apply to the district court for an injunction for removal or alteration of a building on the ground that there has been the contravention of the provisions of the act of 1956 or the bye-laws made thereunder. this remedy under sub-section (5) of section 307 of the act of 1956 is independent of and different from the remedies under the specific relief act. 1963. section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth,jj] injunction for removal or alternation of any building-locus standi to claim - held, the word any which has diverse meanings, therefore, has to be interpreted depending on the context and the subject matter of statute in which it is used. there are various other provisions in the act of 1956 and the byelaws made thereunder relating to buildings within the area of the corporation which have to be complied with. legislature has., therefore, to provide for some remedy if the provisions of the act of 1956 or the byelaws thereunder in respect of a building are violated. it is only for this reason that under sub-section (5) of section 307 of the act of 1956, a right has been conferred not only on the corporation but on any other person to apply to the district court for injunction for removal of a building or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. hence, not only the corporation but every other person has been given the right to apply to the district court for injunction for the removal or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. the context and the subject-matter of the statute in which the word any has been used is thus, wide enough to include all persons other than the corporation or every other person other than the corporation or any other person other than the corporation. - suraj jit choudhary, air 1982 sc 1397. i may profitably quote their lordships :a plain reading of the explanation clearly indicates that if any appeal against an ex-parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex-parte decree under order 9 rule 13 will be entertained. the language used in the explanation clearly suggests that where there has been an appeal against a decree passed ex-parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under order 9 rule 13 for setting aside the ex-parte decree.orderdipak misra, j.1. the non-applicant as plaintiff filed civil suit no. 42-a/96 in the court of first civil judge, class-ii, jabalpur for ejectment of the present applicant. the said civil suit was decreed ex-parte. thereafter, the judgment-debtor, the petitioner herein, filed an application under order 9 rule 13 of the code of civil procedure (in short the cpc) for setting aside the ex-parte judgment and decree which formed the subject-matter of mjc no. 2/99. the court below rejected the said application as there was absence of sufficient cause. feeling aggrieved the present petitioner filed misc. civil appeal no. 22/99 which met with similar fate. hence, this revision.2. i would have addressed myself to the merits of the civil revision but mr. gupta, learned counsel for the decree-holder/non-applicant pointed out that against the judgment and decree passed by the first civil judge, class-ii, jabalpur a regular appeal has been filed under section 96(2) of the code forming the subject-matter of civil appeal no. 78-a/99 and the said appeal has been dismissed on 6-1-2000 on the ground of limitation. submission of mr. gupta is that the explanation of order 9 rule 13 of the code gets attracted in the facts and circumstances of the case.mr. kohli, learned counsel for the petitioner, per contra, has contended that the dismissal of the appeal will not attract the mischief of the explanation inasmuch as the same was dismissed on the ground of limitation and more so, second appeal has already been preferred by the judgment-debtor.3. at this juncture, it would be useful to refer explanation of order 9 rule 13 of the code. it read as under :'explanation : where there has been an appeal against a decree passed ex-pane under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree.'on a bare reading of the aforesaid provision it is abundantly clear that when the first appeal has been dismissed on the ground of limitation, an application under order 9 rule 13 would not lie. this view of mine gets fortified by the decision rendered in the case of smt. rani choudhary v. suraj jit choudhary, air 1982 sc 1397. i may profitably quote their lordships :'a plain reading of the explanation clearly indicates that if any appeal against an ex-parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex-parte decree under order 9 rule 13 will be entertained. the words used in the explanation are clear and unambiguous. the language used in the explanation clearly suggests that where there has been an appeal against a decree passed ex-parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under order 9 rule 13 for setting aside the ex-parte decree. an appeal may be disposed of on various grounds. it may be disposed of after proper hearing on merits and this is usually the normal way of disposal of an appeal. an appeal may be disposed of also for non-prosecution thereof. though the dismissal of an appeal on the ground of non-prosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for non-prosecution results in the disposal thereof. an appeal may also be dismissed on the ground of limitation, if condonation of delay in filing the appeal is not allowed by the court. an appeal may also be liable to be dismissed for non-compliance with any condition relating to the filing of the appeal and also for other reasons. an appellant is also entitled to withdraw the appeal and the withdrawal of the appeal also results in the disposal of the appeal, though in such a case, no merits of the appeal are adjudicated upon. the language used in the application makes it clear that the withdrawal of an appeal is considered to the disposal of the appeal, as contemplated in the explanation. it is significant to note that though an appeal may be disposed of on very many grounds the legislature has thought it fit to provide in the explanation that only when an appeal against an ex-parte decree is disposed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of the application under order 9 rule 13 for setting aside the ex-parte decree will not apply. the legislature must be presumed to know that there are various ways of disposal of an appeal. the legislature has, however, thought it fit to provide that when an appeal has been preferred against an ex-parte decree, the disposal of the appeal on any ground excepting the solitary ground of disposal of the appeal by the withdrawal of the same by the appellant, will create a bar to the maintainability of an application under order 9 rule 13. by specifically providing in the explanation that the disposal of any appeal from the ex-parte decree on any ground other than the solitary ground of withdrawal of the appeal by the appellant, the legislative intent is made manifestly clear that in all other cases of the disposal of the appeal on any other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under order 9 rule 13 and no application will lie under order rule 13 for the setting aside of an ex-parte decree.'4. at this juncture, mr. kohli, learned counsel for the petitioner has drawn my attention to the full bench decision of this court rendered in the case of smt. archana kumar and anr. v. purendu prakash mukherjee and anr. (l.p.a. no. 250/96) = 2000 (3) mpht 35 (fb), wherein it has been held that a regular appeal and proceedings under order 9 rule 13 of the code can continue simultaneously. i may hasten to add the full bench was not dealing with the case of this nature. the full bench was in seisin of the matter whether the regular first appeal is maintainable once an application under order 9 rule 13 of the code is rejected. in the present case, it is the converse, that is to say, when regular first appeal has been dismissed efforts are being made to prosecute the proceedings arising out of order 9 rule 13 of the code.5. in view of my proceeding analysis the present civil revision is not maintainable. contention of mr. kohli that, a second appeal is pending is of no assistance to him.6. in the result, the civil revision, being devoid of substance, stands dismissed.

Judgment:
ORDER

Dipak Misra, J.

1. The non-applicant as plaintiff filed Civil Suit No. 42-A/96 in the Court of First Civil Judge, Class-II, Jabalpur for ejectment of the present applicant. The said Civil suit was decreed ex-parte. Thereafter, the judgment-debtor, the petitioner herein, filed an application under Order 9 Rule 13 of the Code of Civil Procedure (in short the CPC) for setting aside the ex-parte judgment and decree which formed the subject-matter of MJC No. 2/99. The Court below rejected the said application as there was absence of sufficient cause. Feeling aggrieved the present petitioner filed Misc. Civil Appeal No. 22/99 which met with similar fate. Hence, this revision.

2. I would have addressed myself to the merits of the civil revision but Mr. Gupta, learned counsel for the decree-holder/non-applicant pointed out that against the judgment and decree passed by the First Civil Judge, Class-II, Jabalpur a regular appeal has been filed under Section 96(2) of the Code forming the subject-matter of Civil Appeal No. 78-A/99 and the said appeal has been dismissed on 6-1-2000 on the ground of limitation. Submission of Mr. Gupta is that the Explanation of Order 9 Rule 13 of the Code gets attracted in the facts and circumstances of the case.

Mr. Kohli, learned counsel for the petitioner, per contra, has contended that the dismissal of the appeal will not attract the mischief of the Explanation inasmuch as the same was dismissed on the ground of limitation and more so, second appeal has already been preferred by the judgment-debtor.

3. At this juncture, it would be useful to refer Explanation of Order 9 Rule 13 of the Code. It read as under :

'Explanation : Where there has been an appeal against a decree passed ex-pane under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this Rule for setting aside that ex-parte decree.'

On a bare reading of the aforesaid provision it is abundantly clear that when the First Appeal has been dismissed on the ground of limitation, an application under Order 9 Rule 13 would not lie. This view of mine gets fortified by the decision rendered in the case of Smt. Rani Choudhary v. Suraj Jit Choudhary, AIR 1982 SC 1397. I may profitably quote Their Lordships :

'A plain reading of the Explanation clearly indicates that if any appeal against an ex-parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex-parte decree under Order 9 Rule 13 will be entertained. The words used in the Explanation are clear and unambiguous. The language used in the Explanation clearly suggests that where there has been an appeal against a decree passed ex-parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under Order 9 Rule 13 for setting aside the ex-parte decree. An appeal may be disposed of on various grounds. It may be disposed of after proper hearing on merits and this is usually the normal way of disposal of an appeal. An appeal may be disposed of also for non-prosecution thereof. Though the dismissal of an appeal on the ground of non-prosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for non-prosecution results in the disposal thereof. An appeal may also be dismissed on the ground of limitation, if condonation of delay in filing the appeal is not allowed by the Court. An appeal may also be liable to be dismissed for non-compliance with any condition relating to the filing of the appeal and also for other reasons. An appellant is also entitled to withdraw the appeal and the withdrawal of the appeal also results in the disposal of the appeal, though in such a case, no merits of the appeal are adjudicated upon. The language used in the application makes it clear that the withdrawal of an appeal is considered to the disposal of the appeal, as contemplated in the Explanation. It is significant to note that though an appeal may be disposed of on very many grounds the Legislature has thought it fit to provide in the Explanation that only when an appeal against an ex-parte decree is disposed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of the application under Order 9 Rule 13 for setting aside the ex-parte decree will not apply. The Legislature must be presumed to know that there are various ways of disposal of an appeal. The Legislature has, however, thought it fit to provide that when an appeal has been preferred against an ex-parte decree, the disposal of the appeal on any ground excepting the solitary ground of disposal of the appeal by the withdrawal of the same by the appellant, will create a bar to the maintainability of an application under Order 9 Rule 13. By specifically providing in the Explanation that the disposal of any appeal from the ex-parte decree on any ground other than the solitary ground of withdrawal of the appeal by the appellant, the legislative intent is made manifestly clear that in all other cases of the disposal of the appeal on any other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under Order 9 Rule 13 and no application will lie under Order Rule 13 for the setting aside of an ex-parte decree.'

4. At this juncture, Mr. Kohli, learned counsel for the petitioner has drawn my attention to the Full Bench decision of this Court rendered in the case of Smt. Archana Kumar and Anr. v. Purendu Prakash Mukherjee and Anr. (L.P.A. No. 250/96) = 2000 (3) MPHT 35 (FB), wherein it has been held that a regular appeal and proceedings under Order 9 Rule 13 of the Code can continue simultaneously. I may hasten to add the Full Bench was not dealing with the case of this nature. The Full Bench was in seisin of the matter whether the regular First Appeal is maintainable once an application under Order 9 Rule 13 of the Code is rejected. In the present case, it is the converse, that is to say, when regular First Appeal has been dismissed efforts are being made to prosecute the proceedings arising out of Order 9 Rule 13 of the Code.

5. In view of my proceeding analysis the present civil revision is not maintainable. Contention of Mr. Kohli that, a second appeal is pending is of no assistance to him.

6. In the result, the civil revision, being devoid of substance, stands dismissed.