Sanjay Misra, J. -
Heard Sri Ashutosh Srivastava learned Counsel for the revisionist.
AIR (1)-46
2. This revision has been filed under section 115 of the Code of Civil Procedure against the order dated 15.11.2008 passed in Original Suit No. 521 of 2008 by the Civil Judge, Senior Division, Saharanpur whereby while deciding issue No. 1 the Court has held that it does not have jurisdiction to entertain the suit and has further recorded that in case the plaintiff revisionist wants to raise the issue before the appropriate authority the plaint can be returned to him.
3. At the out set learned Counsel for the petitioner has placed reliance upon a decision of the Hon'ble Supreme Court in Abdulla Bin Ali and others v. Calappa and others1985 (11) ALR335 (SC) to state that the jurisdiction of the Court depends on the allegations made in the plaint and not on the written statement. He has further referred to a decision of a learned Single Judge of this Court in Umesh Chandra Saxena v. The First Additional Civil Judge (Senior Division) Allahabad2003 (50) ALR 385 for the same proposition by stating that the forum and jurisdiction of the suit is not dependant upon the defence taken by the defendant but on the allegations made in the plaint. He has referred to Municipal Board, Faizabad v. Edward Medical Hall, Faizabad and others, AIR 1976 Alld. 349 for the very same proposition. The law cited by learned Counsel for the revisionist cannot be disputed that a suit brought under section 9 of the Code of Civil Procedure cannot be thrown out unless the allegations made in the plaint are such that the suit is not maintainable before the Civil Court.
4. In the present case the Trial Court has not thrown out the suit of the plaintiff on the basis of the averments made in the written statement. It has only considered the allegations made in the plaint. Reference to an objection taken regarding jurisdiction cannot be inferred to mean that the plaintiff has been unsuited only on the basis of the averments made in the written statement. An issue as issue No. 1 was framed as to whether the Court has jurisdiction to hear the suit. The Trial Court has not considered any application filed by the defendants under Order VII CPC or other provisions objecting to the jurisdiction of the Court. It was only after the defendant has put in appearance and filed his written statement that issues were framed on the propositions of fact and law where the parties were at variance. The Trial Court was deciding the issue No. 1 as a preliminary issue and therefore it cannot be held that the Trial Court could not consider the question of jurisdiction only because it was taken by the defendants in the written statement primarily because while deciding an issue the case of the plaintiff as taken in the plaint and that of the defendant taken in his written statement is to be considered. After issues are framed under Order XIV of the Code of Civil Procedure the defendant has a right to canvass his defence before the Trial Court. In the present case admittedly an issue has been decided, may be as a primarily issue. There is no bar under the procedure prescribed or any law that the Court cannot consider the written statement and the defence of the defendants while deciding an issue framed under Order XIV of the Code of Civil Procedure. It is only when a question of jurisdiction is being decided that the plaint allegations are to be considered. The plaint allegations, if they confer jurisdiction on the Court, have to be tested after the written statement has been filed and if found to be incorrect or unfounded the suit can be dismissed. Therefore there is a difference in the stages of consideration. The first is at the stage of filing of the plaint/suit and the second is at the time of trial and final decision.
5. The submission made by learned Counsel for the revisionist is also that in the plaint or in the relief claimed therein he has not at all claimed any relief against a notice under section 27 of act but the relief claimed is that the defendant should not interfere or demolish the premises in question otherwise that in accordance with law or at least till the premises in question is acquired in accordance with law. No doubt such a relief has not been claimed in the plaint and the averments made in the plaint do not refer to the provisions of the U.P. Urban Planning and Development Act nor it mentions any notice under section 27 of the Act therefore the suit was entertained and the defendants were noticed. It was after the defendants were noticed and they filed their written statement that they came with a plea that the demolition alleged to be a cause of action for bringing the suit was in pursuance of a notice under section 27 of the U.P. Urban Planning and Development Act. It was on this plea made by the defendant in the written statement and the proposition of fact and law were at variance that the issue No. 1 was framed. After the issues are framed they have to be decided on the materials from which they have been framed. In case an issue relating to jurisdiction of the Court arises or an issue of a bar to the suit created by any law is framed it requires to be decided on the materials from which such issue has been framed. This is the second stage when the issue of jurisdiction is considered. At this stage of the suit the law relating to the provisions of Order VII Rule 10 to Rule 13 CPC cannot be made applicable to say that the objection to jurisdiction or bar created by any law can be considered only by ignoring the written statement and looking to the plaint allegations alone. Order XIV CPC clearly provides that the Court shall after reading the plaint and the written statement frame and record the issues and may examine witnesses or documents before framing issues.
6. The jurisdiction of the Civil Court to entertain a suit depends on the allegations made in the plaint. After trial if it is found that the allegations are incorrect or unfounded the suit can be dismissed. Such dismissal would be upon decision on an issue framed under Order XIV CPC. While deciding an issue it would be within the competence of the Court to consider the cause of action in the plaint and the substantive relief sought by the plaintiff. When the plaint seeks such relief as to confer jurisdiction on the Court to try the suit and upon trial such allegations regarding cause of action made in the plaint are found to be incorrect and unfounded the suit can be dismissed. In the present case precisely the Trial Court has considered issue No. 1 and found the allegations made in the plaint to be incorrect and unfounded and the cause of action for bringing the suit was actually the notice under section 27 of the U.P. Urban Planning and Development Act 1973, which was never pleaded but was necessarily to be considered at the trial after the stage of framing of issues.
7. Learned Counsel has also placed reliance upon a decision of a learned Single Judge in Allahabad Development Authority and another v. Sri Ram Prakash Pandey and another 2002 (46) ALR 735 and has placed reliance on paragraph 15 of the said judgment. In the aforesaid decision which was given in a Second Appeal the Court found that section 27 of the U.P. Urban Planning and Development Act provided for service of notice of demolition of a building but there was no procedure prescribed therein nor there is any provision for producing evidence therefore the remedy provided under section 27 of the Act cannot be said to be an adequate remedy so as to infer that the jurisdiction of the Civil Court is barred. The aforesaid conclusion was given by the learned Single Judge in light of the law laid down by the Hon'ble Supreme Court in the case of Dhulabhai v. State of Madhya Pradesh AIR 1969 SC 78 wherein it was laid down that where the statute gives a finality to the orders of the special Tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit.
8. In the present case there is no denial regarding the existence of section 27 (2) of appeal in the U.P. Urban Planning and Development Act. Section 28 further gives power to stop development and there is a forum of an appeal and it also provides that the orders passed by the said Appellate Authority/Tribunal shall be final. No doubt against such order of the Tribunal a civil suit would lie because the Hon'ble Supreme Court has clearly held that such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. Consequently the learned Single Judge while considering the issue in Allahabad Development Authority v. Sri Ram Prakash Pandey has dealt with the provision of section 27 of the Act to hold that it does not provide adequate remedy to do what a Civil Court would normally do in suit. Such reasoning would relate to the bar provided under section 27 (4) where jurisdiction of the Civil Court is sought to be taken away. While the law is settled that where adequate remedy is not provided in the statute to do what a Civil Court would normally do in a suit the jurisdiction of the Civil Court is not barred. Therefore when an appeal is provided under section 27 (2) and the procedure provided under the various sub-sections of section 27 is not an adequate remedy the bar sought to be created, of the jurisdiction of the Civil Court, under section 27 (4) of the Act cannot prevent a party from invoking the jurisdiction of the Civil Court against an order passed in appeal maintained under section 27 (2) of the Act. The bar to jurisdiction of the Courts is provided in section 27(4) of the Act against the decision in an appeal and when there is no adequate remedy provided under the provisions to do what could normally be done by a Civil Court then a suit under section 9 of cpc is maintainable. While applying the law laid down by the Hon'ble Apex Court section 27 (4) can only be read in relation to section 27 (2) and cannot be applied to the proceedings of section 27 (1) where against if a civil suit is held to be maintainable then the statutory provision of appeal becomes redundant. Harmonious interpretation is to be made of the statute and it cannot be read so as to make the very provisions unworthy of enforceability or worthy of being ignored.
9. The Trial Court while deciding the issue No. 1 has clearly recorded that the jurisdiction of the Civil Court is barred under the provisions of section 27 (4) of U.P. Urban Planning and Development Act 1973 against a notice under section 27 thereof. Jurisdiction of the Civil Court cannot be barred after an appeal under section 27(2) has been decided since the procedure provided therein is not an adequate remedy to do what a Civil Court could normally do in a suit.
10. In view of the aforesaid circumstances no material irregularity or illegality can be found in the impugned order which requires any interference in a-Revision filed under section 115 of the Code of Civil Procedure.
11. The Revision has no force it is accordingly rejected. No order is passed as to costs.
Revision Rejected.
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