MANU/MP/0937/2012

Equivalent Citation: 2012(2)JLJ272

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

Second Appeal No. 1441 of 2005
Decided On: 29.02.2012
Appellants: Rashik Hasan
Vs.
Respondent: Nagar Nigam, Bhopal and Ors.
Hon'ble Judges/Coram:
A.K. Shrivastava, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Smt. Shobha Menon with Ku. Surabhi Ahirwar
For Respondents/Defendant: Pratush Tripathi for Respondent No. 1 and Rakesh Jain
for Respondent No. 2
Case Note:
Civil - Grant of permission to sue - Injunction - Order 7 Rule 11 and Order
39 Rules 1 and 2 and Section 151 of Code of Civil Procedure, 1908 (CPC);
Section 67 of Krishi Upaj Mandi Adhiniyam, 1972 ('Adhiniyam') - Courts
below allowed Application of second Defendant under Order 7 Rule 11 and
Section 151 of CPC praying that suit of Plaintiff-Appellant for declaration
and injunction in respect to suit property was not maintainable because
before expiry of statutory period of two months, suit which had been filed
was pre-mature and was barred by law and hence it be dismissed - Hence,
this Appeal - Whether trial Court erred in substantial error of law by not
granting permission permitting Plaintiff to sue before expiry of statutory
period under Section 67 of Adhiniyam - Held, before expiry of statutory
period of notice of two months, if an Application under Section 151 of CPC
was filed by Plaintiff praying to grant temporary injunction even prior to
expiry of statutory period - Courts could not shut its eyes and were not
powerless not to pass suitable order till notice period expires and it could
grant such temporary injunction in favour of Plaintiff looking to urgency,
not under Order 39 Rules 1 and 2 of CPC but under inherent powers of
Court as envisaged under Section 151 of CPC - Statutory notice period of
one month against Municipal Corporation was already expired when suit
was filed on 1st August 2003, but statutory period of two months under
Section 67 of Adhiniyam was not expired on date of filing of suit since said
notice was given by Plaintiff to Mandi Samiti only on 28th July 2003 - If
looking to urgency of matter, necessary Application in that regard was
submitted by Plaintiff, Court was not powerless and it could grant necessary
permission to institute suit and to pass necessary order granting temporary
injunction under inherent powers if Application was otherwise deserves to
be allowed on touchstone and principles of granting temporary injunction -
Thus trial Court ought to have accorded its permission to Plaintiff to sue
Defendant No. 2 Mandi Samiti before expiry of statutory period of two
months - Hence trial Court had committed grave error in rejecting

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Application under Section 151 of CPC of Plaintiff seeking permission to file
suit before expiry of statutory period of two months as envisaged under
Section 67 of Adhiniyam - Appeal allowed.
Ratio Decidendi
"If temporary injunction cannot be issued, certainly Court shall well
empowered to grant such an injunction by exercising inherent powers."
ORDER
A.K. Shrivastava, J.
1. The unsuccessful plaintiff having lost from two Courts below has taken the shelter
of this Court by filing this appeal under section 100 CPC. No exhaustive statements of
fact are required to be narrated for the purpose of disposal of this appeal. The
plaintiff-appellant filed a suit for declaration and injunction in respect to the suit
property, the description whereof has been mentioned in the plaint. According to the
plaintiff the suit property was purchased by him on 28.5.1992 vide registered sale-
deed from Pushpa Mayoor Grih Nirman Sahkari Samiti, Bhopal through its President
Nawab Khan. The possession of the suit property was also delivered to him. The
plaintiff thereafter took NOC from Nazul Department and on 8.11.2001 deposited a
sum of Rs. 26,700/- for development charges etc. in the office of Municipal
Corporation, Bhopal (defendant No. 1) (hereinafter referred to as the Corporation).
The plaintiff submitted requisite application for construction of house in the office of
Municipal Corporation which was allowed on 7.1.2003. The necessary charges were
also deposited by him. Thereafter the plaintiff moved necessary permission for
construction of the house in the Corporation.
2 . Further it has been pleaded by the plaintiff in the plaint that necessary building
material has been collected at the site by him and the construction work has started.
But on 21.6.2003 employees of second defendant Krishi Upaj Mandi Samiti (in short,
'Mandi Samiti') with the help of police personnel arrived at the spot and informed the
plaintiff that the permission of the house construction granted in favour of plaintiff
has been cancelled and asked him not to raise any construction. According to
plaintiff, till the date of filing of the suit he has not received any order of cancellation
to construct the house nor he has been informed that any complaint is made against
him. Even if the permission order to construct the house has been cancelled by the
Corporation, the same is in contravention to the principles of natural justice because
without issuing any notice to the plaintiff, in an arbitrary manner the permission
order has been cancelled. The plaintiff hence sent a notice by registered AD post
under section 401 to the Corporation and also sent notice by registered AD post
under section 67 of the Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as
the 'Adhiniyam').
3. It is also pleaded by the plaintiff that during the pendency of the notice period he
also submitted an MJC which has been registered as 24/2003 and with the permission
of the Court plaintiff is filing the present suit. It is also pleaded in the plaint that
without providing any opportunity to the plaintiff, on the complaint made by the
Mandi Samiti, permission for construction of the house granted in his favour on
4.2.2003 has been set aside on 9.5.2003 which is illegal and void because the same
has been cancelled without affording opportunity of hearing to the plaintiff. Hence, a
decree of injunction has been sought by the plaintiff against the defendants that they

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should not interfere in his possession on the suit property. A declaratory decree has
also been sought that order dated 9.5.2003 of the Corporation cancelling the order to
construct the building in favour of plaintiff be declared as null and void.
4. An application under section 151 CPC was filed by the plaintiff that earlier to filing
of the suit which was filed on 1.8.2003, an application was submitted by him on
25.6.2003 before the same Court in which the civil suit has been filed and the said
application was registered as MJC 24/2003. The statutory period of one month notice
under section 401 of M.P. Municipal Corporation Act, 1956 (in short, the Act) has
been expired on 23.7.2003 and, therefore, plaintiff is seeking permission to sue the
present civil suit. In the said application under section 151 CPC it has also been
averred by plaintiff that to Mandi Samiti also a notice by registered AD post was sent
on 28.7.2003 and a copy of the notice is also being filed along with the application
under section 151 CPC. But looking to the urgency of the suit because the Mandi
Samiti also took part in MJC Case No. 24/2003 as he was also non-applicant No. 2 in
the said case, permission be granted to the plaintiff to sue the defendants before the
expiry of the statutory period against defendant No. 2 for the ends of justice. In the
application under section 151 CPC, it has been prayed by plaintiff that by closing the
MJC 24/2003, permission be granted to the plaintiff to sue defendants prior to expiry
of the notice period given to defendant No. 2 Mandi Samiti. The plaintiff also filed an
application for issuance of temporary injunction against defendants praying that they
be restrained from interfering in his possession.
5. The defendant No. 1 Municipal Corporation filed written statement and refuted the
plaint averments. The Corporation also filed reply of temporary injunction application
but did not file any reply of plaintiff's application filed under section 151 CPC. The
Mandi Samiti (defendant No. 2) also filed reply to the application for issuance
temporary injunction of the plaintiff but no reply of application under section 151 CPC
was filed. However, an application under Order 7 rule 11 read with section 151 CPC
was filed by the Mandi Samiti praying that the suit is not maintainable because before
the expiry of statutory period of two months, as envisaged under section 67 of the
Adhiniyam, the suit which has been filed on 1.8.2003 was pre-mature and is barred
by law and hence it be dismissed.
6. The learned trial Court heard the parties on the plaintiff's application under section
151 CPC, his another application for issuance of temporary injunction as well as
application under Order 7 rule 11 CPC of Mandi Samiti and by a common order dated
11.11.2003 allowed the application of second defendant under Order 7 rule 11 CPC
by dismissing the suit to be barred under the law and further dismissed the
application of plaintiff under section 151 CPC and another application under Order 39
rules 1 and 2 CPC.
7. The plaintiff thereafter filed first appeal before learned first appellate Court which
has also been dismissed by the impugned judgment and decree.
8 . In this manner this second appeal has been filed by the appellant-plaintiff which
has been admitted by this Court today i.e. 29.2.2012 on the following substantial
questions of law :
(i) Whether learned trial Court erred in substantial error of law by not
granting permission permitting plaintiff to sue before the expiry of the
statutory period under section 67 of the Mandi Adhiniyam?
(ii) Whether looking to the facts and circumstances of the case, on filing an

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 application under section 151 CPC by the plaintiff seeking permission to file
suit before expiry of the notice period, the learned trial Court ought to have
granted permission to plaintiff to file suit?
9 . The contention of Smt. Shobha Menon, learned senior counsel for the appellant-
plaintiff is that the plaintiff already sent a notice to the Krishi Upaj Mandi and if the
notice period was not expired, looking to the urgency of the case because Mandi
Samiti was trying to take illegal possession of the suit property which is owned by
the plaintiff, therefore the learned trial Court ought to have granted permission to the
plaintiff in that regard. Having not done so, the learned trial Court erred in
substantial error of law in dismissing the suit to be not maintainable and the same
error has been committed by learned first appellate Court.
10. On the other hand Shri Pratush Tripathi, Learned Counsel for respondent No. 1
and Shri Rakesh Jain, Learned Counsel for respondent No. 2 argued in support of the
impugned judgment. Shri Jain, Learned Counsel for respondent No. 2 further submits
that because the notice under section 67 of the Mandi Adhiniyam was sent only on
28.7.2003 and the suit was filed on 1.8.2003 therefore, the suit was not maintainable
and was barred. In support of his contention, Learned Counsel has placed heavy
reliance on the Single Bench decision of this Court Baldev Singh Bhatia v. The
Commissioner, Nagar Palika Nigam, Raipur and others [MANU/MP/0420/2000 :
2001(5) MPHT 206], and Division Bench judgment of this Court Municipality,
Raghogarh v. Gas Authority of India and others [2006(1) JLJ 42].
11. Having heard Learned Counsel for the parties, I am of the view that this appeal
deserves to be allowed.
Regarding substantial questions of law framed:
1 2 . By Act 104 of 1976 the Civil Procedure Code was amended with effect from
1.2.1977. Section 80 CPC was also amended by introducing and adding certain new
provisions including sub-section (2) to section 80. Under this clause, a suit to obtain
an urgent or immediate relief against the Government or any public officer in respect
of any act purporting to be done by such public officer in his official capacity, may be
instituted, with the leave of the Court, without serving any notice as required in sub-
section (1).
13. On 28.4.1973 i.e. four years earlier to the amendment of the CPC on 1.2.1977,
the Division Bench of this Court in Ram Krishna Parashar v. Chironji Lal Vaishya and
others [MANU/MP/0160/1973 : 1977 JL J 184], has laid down the law that if a notice
under section 80 CPC has been given and two months' period has not been expired, a
person cannot left to be remedyless and looking to the urgency of the case necessary
permission should have been granted to him to file an application praying a
substantive prayer to issue temporary injunction under inherent powers before the
expiry of statutory period of two months. The said decision was passed by the
Division Bench on reference and the Division Bench answered the questions which
were referred to them as under :
(i) Where the period of notice under section 80 of the Code of Civil Procedure
has not expired, an intending plaintiff can file a substantive application
praying for grant of a temporary injunction. Such an application is not one
under section 151 CPC, but it is necessarily one under the Code of Civil
Procedure, wherein inherent powers of the Court are invoked for grant of a
temporary injunction. Such an order will only be operative till the party

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 concerned is able to file a suit and is able to obtain a temporary injunction
from the Court in the suit itself.
(ii) The Court acting on such an application can grant a temporary injunction
having resort to the inherent powers saved by section 151, CPC.
14. Looking to the urgency of the case, and the public authorities may not take law
in their own hands and to save the interest of the plaintiff from such an illegal action
of the public authorities, when there was no provision in the CPC, the Division Bench
of this Court understood the pains of the sufferer and laid down the law that before
the expiry of the statutory period of notice of two months, if an application under
section 151 CPC is filed by the plaintiff praying to grant temporary injunction even
prior to the expiry of the statutory period. Courts cannot shut its eyes and are not
powerless not to pass a suitable order till the notice period expires and it can grant
such a temporary injunction in favour of the plaintiff looking to the urgency, not
under Order 39 rules 1 and 2 CPC but under inherent powers of the Court as
envisaged under section 151 CPC. The law Courts are Courts of justice and I am not
having any hesitation to say that they cannot be converted into instruments for
perpetration of injustice and in this context I may profitably place reliance on State of
M.P. v. Caltex (India) Ltd. and two others [1969 JLJ Note 101]. It appears that one of
the cause to legislate section 80(2) CPC w.e.f. 1.2.1977 is to enable the Court to
permit a person to institute the suit with the leave of the Court even without serving
any statutory notice as required by sub-section (1) and after giving notice to the
Government or public officer and after providing reasonable opportunity to them, can
grant necessary relief of temporary injunction.
15. More than 50 years ago, a four Judges Bench of Supreme Court Manohar Lal
Chopra v. Raj Bahadur Rao Raja Seth Hiralal [MANU/SC/0056/1961 : AIR 1962 SC
527], has laid a law of land by overruling certain decisions of High Court that if
circumstances to grant temporary injunction are not proved in the application under
Order 39 rules 1 and 2 CPC, Courts are not powerless and can issue injunction by
exercising inherent powers under section 151 CPC. Thus, if a temporary injunction
cannot be issued under Order 39 rules 1 and 2 CPC, certainly the Courts are well
empowered to grant such an injunction by exercising inherent powers under section
151 CPC.
16. If the necessary relief could have been granted to the plaintiff against the State
Government when the statutory notice period was not expired, and this was so held
by the Division Bench in Ram Krishna Parashar (supra), why the same analogy and
principles of law cannot be applied for Krishi Upaj Mandi constituted under the
Adhiniyam. On bare perusal of the plaint as well as the findings of learned two Courts
below it is gathered that statutory notice period of one month against the Municipal
Corporation under section 401 was already expired when the suit was filed on
1.8.2003, but the statutory period of two months under section 67 of the Mandi
Adhiniyam was not expired on the date of filing of the suit since the said notice was
given by the plaintiff to Mandi Samiti only on 28.7.2003. But, this would not mean
that plaintiff should be left like an orphan and to wait up to the expiry of the period
of notice of two months and indirectly permit the Mandi Samiti to take law in their
hands and to take possession of the suit property. According to me, a citizen cannot
be left remedyless, hence, the analogy and the principles laid down in the decision of
Division Bench Ram Krishna Parashar (supra), should also be made applicable to the
Krishi Upaj Mandi. If looking to the urgency of the matter, necessary application in
that regard was submitted by the plaintiff, the Court was not powerless and it could

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grant necessary permission to institute the suit and to pass necessary order granting
temporary injunction under the inherent powers if the application was otherwise
deserves to be allowed on the touchstone and principles of granting temporary
injunction.
17. In the instant case along with the plaint, an application under section 151 CPC
was moved by the plaintiff seeking permission from the learned trial Court that before
the expiry of the statutory period of notice under section 67 of the Adhiniyam, he be
permitted to file suit and news of polls looking to the urgency of the case because the
defendant No. 2 (Mandi Samiti) by taking law in their own hands and by joining their
hands with the police authorities are trying to take illegal possession from the
plaintiff, necessary order on the said application if it is found to be otherwise
required to be allowed, should have been passed. In the said application of seeking
permission to file suit, it is also averred by the plaintiff that earlier to filing of the
suit he also filed an MJC because notice period sent to Municipal Corporation did not
expire and in these proceedings Mandi Samiti was also arrayed as non-applicant No.
2. Hence, in the application it has been prayed that by closing that MJC case
24/2003, permission be granted to the plaintiff to file a suit before expiry of the
statutory notice period of two months as envisaged under section 67 of the Mandi
Adhiniyam.
1 8 . Looking to the entire gamut, facts and circumstances, pleadings and the
applications, I am of the view that learned trial Court ought to have accorded its
permission to the plaintiff to sue defendant No. 2 Mandi Samiti before the expiry of
the statutory period of two months. The learned trial Court illegally rejected the said
application and by dismissing the said application, the application of temporary
injunction of plaintiff has also been dismissed holding that because suit is not
maintainable, therefore, plaintiff is not having any prima facie case and allowed the
application under Order 7 rule 11 CPC filed on behalf of Mandi Samiti (defendant No.
2) by dismissing the suit.
19. The decision of learned Single Bench of this Court Baldev Singh Bhatia (supra),
relied by Learned Counsel for respondent No. 2 is not applicable in the present case
because the Division Bench's decision Ram Kirshna Parashar (supra), was not taken
into account. Similarly, the Division Bench decision of Municipality, Raghogarh
(supra), is also not applicable in the present case because in that case firstly a writ
petition which was got dismissed, on the same cause of action a civil suit was filed
and on merit it was found that there was no urgency in the matter. However, in the
present case, on going through the averments made in the plaint as well as the
averments made in plaintiff's application for issuance of temporary injunction as well
as other material placed on record, I am satisfied that permission should have been
granted to the plaintiff to file suit before expiry of the statutory period of two months
as envisaged under section 67 of the Adhiniyam against the Mandi Samiti (defendant
No. 2).
20. The substantial questions of law are thus answered that learned trial Court has
committed a grave error in rejecting the application under section 151 CPC of plaintiff
seeking permission to file suit before expiry of the statutory period of two months as
envisaged under section 67 of the Adhiniyam. The said application is hereby allowed
and the plaintiff is hereby permitted to file suit before the expiry of the statutory
period. Since during pendency of the lis, the said period has already been expired,
learned trial Court shall now hear the suit on merit and it is hereby further held that
for the aforesaid reasons, the suit of plaintiff shall not be dismissed on the ground

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that before expiry of the statutory period the same has been filed.
21. In the light of the reasons which I have assigned hereinabove, the application
under Order 7 rule 11 CPC filed by the Mandi Samiti (defendant No. 2) is hereby
dismissed. The temporary injunction application of plaintiff was rejected by learned
trial Court because the suit itself was not found to be maintainable and, therefore,
learned trial Court is hereby directed to hear the application of temporary injunction
of plaintiff afresh on its own merit. Till the application is decided, the interim order
passed by this Court maintaining status quo on 1.7.2005 shall continue.
2 2 . The parties are hereby directed to appear before the learned trial Court on
2.4.2012 and no separate notice shall be issued to any of the parties in that regard.
The learned trial Court shall make all its endeavour to decide the suit as early as
possible preferably within a period of six months from 2.4.2012.
2 3 . Registrar (Judicial) is hereby directed to send the record to the learned trial
Court posthaste so as to reach that Court much prior to 2.4.2012. The appeal is
accordingly allowed to the extent indicated hereinabove. However, parties are hereby
directed to bear their own costs.
Let a copy of this order be kept in the record of CONC No. 667/2011.
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