RATUL MAHANTA Vs. NIRMALENDU SAHA

JUDGEMENT

(1.) The appellant instituted title suit No.334 of 2011 in the Court of learned Munsif No. 2, Kamrup Guwahati against the respondent herein seeking for a declaration that on the western boundary of the suit Schedule properties A, B and C there is a common public drain which can be used by the plaintiff. A declaration is also sought to the affect that the public drain on the boundary of the suit Schedule 'C property of the defendant, connected to the plaintiffs property cannot be obstructed by the defendant at any point of time. As an ancillary relief, the appellant has also sought for permanent injunction against the defendant so as to allow free flow of water in the said drain upto the main GMC drain.

(2.) The respondent having appeared, disputed the claim put forth by the plaintiff on merits. In addition, the respondent raised the issue of jurisdiction for the civil court to entertain the suit in view of the provisions contained in the Guwahati Municipal Corporation Act, 1971 ('GMC Act for short). In the said suit, since the appellant had also prayed for temporary injunction, on consideration it was granted by the trial court, of course without reference to the objection regarding jurisdiction. The respondent had therefore assailed the order of injunction by filing an appeal before the Lower Appellate Court under Section 96 (1) read with Order 43 Rule 1 of the Civil Procedure Code ('CPC for short). In the said appeal, the respondent herein who was the appellant had contended that the order dated 30.09.2011 passed by the learned Munsif was not justified since the issue relating to the maintainability of the suit vis-a-vis the provisions of the GMC Act barring the jurisdiction of the civil court goes to the root of the case. It was contended that the same was required to be considered and decided, before considering any other relief prayed in the suit. The lower appellate court in the said miscellaneous application No.33/2011 through its order dated 21.09.2012 arrived at the conclusion that the jurisdiction aspect is to be decided at the outset by the learned Munsif. Therefore, without going into the merits, the lower appellate court remanded the matter by setting aside the order impugned in the said appeal for deciding the question of jurisdiction before considering grant of any other relief.

(3.) The appellant herein claiming to be aggrieved by the said order preferred revision petition in CRP No.260/2013 before the Gauhati High Court. The learned Judge while taking note of the rival contentions, through its order dated 29.08.2013 had agreed with the decision of the lower appellate court that the jurisdiction of the civil court to entertain the suit was to be decided at the outset. The revision petition was accordingly disposed of. The parties were allowed to urge their contentions in the court of the learned Munsif.