DAYANAND Vs. STATE

JUDGEMENT

(1.) It is a revision petition challenging the order of the Additional District Judge, Ramganj Mandi (Kota) who returned the claim of the petitioners (plaintiffs) holding that the suit was not of urgent nature inasmuch as notice u/S. 80, CPC and 271 of the Municipalities Act ought to have been served upon the respondents-State and the Municipality prior to institution of the suit, but failed to do so.

(2.) Shri Mahesh Sharma, learned counsel for the petitioners contended that as per S. 271 of the Municipalities Act no prior notice is required to institute a suit for permanent injunction except for declaration, inasmuch as in a suit for twin reliefs, i.e. seeking permanent injunction and declaration against the State and the Municipality, which are independent of each other, each of them could be claimed separately and independently in one suit, either by denying or accepting one of them and in these circumstances, the trial Court ought not to have returned the suit for permanent injunction but only suit for declaration ought to have been return thereby it committed material illegality with irregularity by returning the plaint in toto. Second contention urged on behalf of the petitioners is that without framing the issues the trial Court could not have returned the plaint for want of prior notice u/S. 80, CPC or 271 of the Municipalities Act as such a dispute is an issue of fact inasmuch as the respondent-State and AEN PWD both have not at all raised an objection as to such a notice in their written statement.

(3.) Shri Sharma cited decisions in (1) Dhian Singh v. Union of India (AIR 1958 SC 274). (2) State of Bihar v. Panchratna Devi, AIR 1980 Patna 212, (3) Vasant Ambadas v. Bombay Municipality, AIR 1981 Bom 394. (4) Gowardhandas v. Calcutta Municipality, AIR 1970 Cal 539, whereas Shri Rajesh Mootha appearing on behalf of the State and the Municipality while placing reliance upon decisions in (1) State of Madras v. C.P. Agencies, AIR 1960 SC 1309 and (2) Ebrahimbhai v. State, AIR 1975 Bom 13, vociferously contended that the impugned order is perfectly legal warranting no interference in exercise of revisional jurisdiction of this Court u/S. 115 CPC.