AI Structured Summary
Not yet generated for this judgment
Judgment
@JUDGEMENTTAG- JUDGEMENT
Anil Verma, J
Petitioner has preferred this civil revision under Section 115 of the Code of Civil Procedure, 1908 (in short "CPC") being aggrieved by the impugned order dated 30.11.2023 passed by the 29th District Judge, Indore in RCSA No.98-A/2015, whereby the application under Section 151 of CPC filed by the petitioner has been dismissed.
Brief facts of the case are that the respondent No.1 filed a suit for declaration of title and permanent injunction against the petitioner and the respondent No.2. Mayor-in-Council of the Corporation passed the resolution No.58 dated 27.4.2013 and directed to file a civil suit against the respondent No.1 in respect of the land bearing Survey No.154, 158/1649/III, total area 15.32 acres situated at Kasba Indore, 7 Sheelnath Camp Indore. In pursuance of the said resolution, Commissioner, Municipal Corporation, Indore passed an order dated 10.9.2013. As per his direction civil suit has been filed against the petitioner. Petitioner has purchased the suit land through registered sale deed and respondent No.1 has no right, title and interest over the suit property. State Government vide order dated 19.4.2010 has permitted to change the land use of the suit land from Industrial to residential and layout has also been sanctioned on 15.3.2013 by the Town & Country Planning Department, Indore, but the building permission to the petitioner was withheld on account of the filing of civil suit. Then petitioner has preferred a representation dated 27.5.2013 before the State Government and the State Government after issuing notice to the respondent No.1 and hearing both the parties, decided the same vide order dated 11.5.2016 and cancelled the resolution No.58 dated 27.4.2013 and directed the respondent No.1 to withdraw the civil suit against the petitioner and grant building permission to the petitioner. Commissioner, Municipal Corporation, Indore also passed the order dated 28.6.2016 and directed the Dy. Commissioner (Law) to proceed on the basis of the order passed by the State Government and directed to immediately withdraw the civil suit. Proceedings of the civil suit have been stayed by the Hon'ble High Court in Civil Revision No.150/2014 filed by the petitioner against the order dated 18.6.2014 and vide order dated 5.7.2023 the High Court has directed the learned trial Court to pass appropriate order on the aforesaid documents dated 11.5.2016 and 28.6.2016 filed by the parties, in accordance with the law.
Learned counsel for the petitioner contended that petitioner has filed an application under Section 151 of CPC before the trial Court for dismissal of the suit, but after hearing both the parties the trial Court has dismissed the application on the ground that review has been sought by the respondent No.1 against the impugned order dated 11.5.2016. The impugned order passed by the trial Court is against the law and facts. Respondent No.1 being a local authority is bound over to implement the order passed by the State Government and the order dated 11.5.2016 and 28.6.2016 have not been challenged within the reasonable period. Now the present suit has become infructuous and ought to have been dismissed. Hence, he prays that the impugned order be set aside and the application filed by the petitioner under Section 151 of CPC be allowed and accordingly the suit of respondent No.1 may be dismissed with cost.
Per contra Shri Manoj Munshi, learned counsel for the respondent No.1 opposes the prayer and prays for its rejection by supporting the impugned order passed by the trial Court.
The application under Section 151 of CPC filed by the petitioner is only related between the petitioner and respondent No.1 and no relief has been sought against respondents No.2 & 3. Therefore, no need to hear respondents No.2 and 3 in respect of the aforesaid petition.
Both the parties heard at length and perused the documents filed by the parties with due care.
From perusal of the plaint filed by the respondent No.1, it appears that respondent No.1 has filed the civil suit for declaration of title and permanent injunction in respect of the suit property on the basis of the resolution No.58 dated 27.4.2013 passed by the Commissioner of Indore Municipal Corporation. Undoubtedly as per Section 421 of the M.P. Municipal Corporation Act, 1956 (in short "the Act"), State Government is the controlling authority of the Municipal Corporations and Government has the power to suspend any resolution or order passed by the Municipal Corporation in exercise of the powers under Section 421 of the Act. Petitioner being aggrieved by the Resolution No.58 dated 27.4.2013 passed by the Mayor-in-Council of the Indore Municipal Corporation, has preferred a representation dated 27.5.2013 under Section 421 of the Act before the State Government and the State Government after issuing the notice dated 14.6.2013 and 5.7.2013 to the respondent No.1 and after hearing both the parties, has passed the order dated 11.5.2016 (Annexure P/8). The State Government exercising the powers under Section 421 of the Act, acted in a quasi judicial manner and duly followed the principles of natural justice. Order dated 11.5.2016 passed by the State Government was not challenged by the respondent No.1 or any other authority before the any other legal forum or court. Therefore, respondent No.1 being a local body, is bound to implement the order passed by the State Government.
Apart from the above, it is also noteworthy that Commissioner vide order dated 28.6.2016 (Annexure P/9) has also directed the Dy. Commissioner (Law) to proceed on the basis of the order of State Government and also directed to immediately withdraw the civil suit filed by them, but it is unfortunate that despite of the such direction the respondent No.1 willfully did not comply the official order dated 28.6.2016 passed by the Commissioner, Municipal Corporation, Indore.
In view of the aforesaid orders passed by the State Government and the Commissioner, Municipal Corporation, Indore, it appears that the both controlling authority of respondent No.1 do not want to continue the above civil suit and despite the specific directions, respondent No.1 has not withdrawn the civil suit, which is still pending before the trial Court.
It is argued by learned counsel for the respondent No.1 that a review has been filed by the respondent No.1 before the State Government, which is pending, therefore, it cannot be said that the cause of action for filing the suit would come to an end, but as per the provisions of Section 421 of the Act there is no provision for any review. As per Section 421(4) of the Act, in the instant case the State Government after considering the representation, again passed the order under Section 421(1) of the Act, which was not challenged by the respondent No.1 before any appropriate court, therefore, the order passed by the State Government has attained finality and respondent No.1 is legally bound to comply the said order.
In view of the aforesaid, this Court is of the considered opinion that the State Government and the Commissioner, Municipal Corporation, Indore directed the Dy. Commissioner (Law) to proceed on the basis of the order passed by the Commissioner and also directed to immediately withdraw the civil suit filed by the respondent No.1. On the basis of the aforesaid orders, it is quite clear that now no cause of action remains in the civil suit and the dispute raised in the suit has lost its relevance in view of the aforesaid orders and the subsequent events, which have taken place during the pendency of the litigation. In the circumstances, continuing the litigation will be like flogging a dead horse. Such litigation, irrespective of the result, will neither benefit the parties in the litigation nor will serve the interests of the Union and would cause prejudice to both the parties.
The Hon'ble Apex Court in the case of Shipping Corporation of India Ltd. Vs. Machado Brothers and others reported in AIR 2004 SC 2093 has held as under:-
"25. Thus it is clear that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application under Section 151 of CPC to bring to the notice of the court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not."
On the basis of the aforesaid law laid down by the Hon'ble Apex Court, this Court is of the considered opinion that the court below erred in continuing the infructuous suit just to keep the interlocutory order. The application under Section 151 of the CPC filed by the petitioner appears to be bonafide. The trial Court has rejected the same without assigning any valid reasons. Therefore, the impugned order passed by the court below does not deserve to be sustainable and continuation of a suit, which has become infructuous by disappearance of cause of action, would amount to an abuse of process of the Court and in the interest of justice such suit should be disposed of having became infructuous. The application under Section 151 of CPC filed by the petitioner in this regard is maintainable.
For the reasons cited above, this petition is allowed and the impugned order dated 30.11.2023 is set aside. Petition under Section 151 of CPC filed by the petitioner is allowed. Consequently the civil suit RCSA No.98-A/2015 pending before the 29th District Judge, Indore is dismissed as having become infructuous.
No order as to the costs. C.C. as per rules.