Court No. - 36
Case :- WRIT - C No. - 60512 of 2014 Petitioner :- Surendra Pal Singh Respondent :- Shashipal Singh Counsel for Petitioner :- Rajeshwar Singh Counsel for Respondent :- S.C.,Mrs Alka Srivastava,Santosh Kumar Srivastava
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the records.
The present petition is directed against the order of rejection of application filed under Order 7 Rule 11 of the Code of Civil Procedure in Original Suit No.636 of 2013 (Shashipal Singh Vs. Surendra Pal Singh). Both the orders of the trial court as also the revisional court are under challenge in the present petition with the assertion that the courts below have committed illegality in ignoring the bar created by Section 331 of the U.P. Z.A. & L.R. Act' 1950 in maintaining a suit for the relief, which can be claimed before the revenue court.
On a pointed query made by the Court, as to how the relief claimed in the aforesaid suit are barred by Section 331 of the Act' 1950, no plausible answer could be given by the learned counsel for the petitioner.
A perusal of the application under Order 7 Rule 11 CPC filed by the petitioner indicates that no such objection had been taken therein. Only objection taken in the application under Order 7 Rule 11 CPC was that no cause of action arose for institution of the suit in as much as, any power of measurement with regard to a public drain or chak road, lies with the revenue officer only. The suit has been instituted without disclosure of any cause of action in the plaint and hence cannot be entertained.
A perusal of the plaint indicates that the relief of mandatory injunction with regard to the tractorable passage A,B,C,D of width 11 feet and 140 meter long, shown in red colour in the sketch map in an elevated form in its original conditions, connecting Khekra Fakarpur public road passing through the land occupied by the defendant, has been sought with the plea that the defendants by cutting and removing the earth from the said passage, had malafidely created an obstruction in the way of the plaintiff and has intended to grow crop in the passage to permanently deprive the plaintiff of his right to pass through the same either by himself or through tractor. It is further categorically stated that the plaintiff has no access to his land and has been deprived to take care of his orchard standing for the last 18 days. In case, the defendants was not restrained from obstructing the said passage, the plaintiff would suffer irreparable loss and injury as all the mango trees in the orchard, which usually takes 15 to 20 years to mature, cannot be nurtured and would dry. There was an imminent threat of destruction of the entire orchard and the plaintiff was deprived to grow wheat in the orchard. It has further been stated that the defendant had taken undue advantage of this, by obstructing the land of the plaintiff and removing the earth from his land. It was, therefore prayed from the civil court that the defendant be directed to restore the tractorable passage to the plaintiff to its earlier position as soon as possible and to restore plaintiff's land by filling the earth/soil of digged away area.
Further a perusal of the plaint indicates that the description of the suit land has been given in the plaint map.
The defendant/petitioner had filed his written statement on 17.10.2013 and alongwith the same they also moved an application under Order 7 Rule 11 CPC for rejection of the plaint.
Having noted the plaint averments and the nature of relief being sought by the plaintiff, this Court is of the considered view that the suit seeking mandatory injunction on the plea that the plaintiff, has a right of way which had been obstructed by the defendant by digging the land from which the plaintiff has access to his field and orchard can very well be maintained before the civil court. The relief of mandatory injunction can very well be granted in case, the plaintiff is able to make out such a case by leading cogent evidence.
It is further well settled that every suit of civil nature can be maintained before the civil court and the plea of ouster of jurisdiction of the civil court on the basis of any statutory provision cannot be taken lightly. Strict construction has to be provided by the court to such a provision in the statute and the specific plea relating to ouster of jurisdiction of civil court, has to be examined in the light of the statutory provision, itself.
A perusal of column III as contained in schedule II of the U.P. Z.A. & L.R. Act' 1950, it is clear that no such suit has been provided therein for the grant of relief as prayed by the plaintiff from the civil court.
The contention of the learned counsel for the petitioner at this stage that a suit can be maintained under Section 176 of the Act' 1950 is found wholly misconceived and cannot be entertained by this Court any further.
In so far as the plea of the defendant in the application under Order 7 Rule 11 CPC that the measurement could be done only by the revenue authority, the provision as contained in section 20-25 of the U.P. Revenue Code 2006 are only summary proceeding.
The relief of mandatory injunction, as prayed from the civil court in any case cannot be granted by the revenue authority in exercise of power under the said provisions.
Before parting with the judgement, it would be relevant to note that there is no interim order in the present petition staying further proceeding of the suit and both the counsels for the parties are not aware of the stage of suit.
Be that as it may, for the reasons given above, no interference is required in the order impugned.
Noticing the fact that the suit is of the year 2013, the Court of Civil Judge (S.D.), Baghpat is hereby directed to proceed with the Original Suit No.636 of 2013 (Shashipal Singh Vs. Surendra Pal Singh) and make an endeavour to decide the same as expeditiously as possible preferably within a period of six months from the date of submission of certified copy of this order without granting any unnecessary adjournment to any of the parties.
Subject to the above observations, the present petition is dismissed.
Order Date :- 23.1.2019 Himanshu