Madhya Pradesh High Court
Nagar Palika Nigam Gwalior vs Bhagwan Das Gupta on 28 March, 2025
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
FIRST APPEAL No. 60 of 2000
BETWEEN:-
NAGAR PALIKA NIGAM GWALIOR THROUGH
COMMISSIONER NAGAR PALIKA NIGAM,
GWALIOR (M.P.)
(BY SHRI J.D. SURYAVANSHI- LEARNED SENIOR COUNSEL WITH SHRI
P.D. BIDUA- LEARNED COUNSEL AND SHRI KUNAL SURYAVANSHI-
LEARNED COUNSEL FOR THE APPELLANT)
..............APPELLANT
AND
BHAGWANDAS GUPTA, S/O BADRIPRASAD, AGED
ABOUT 38 YEARS, OCCUPATION-BUSINESS, R/O
HEM SINGH KI PARADE JAMBURKHANA,
LASHKAR, GWALIOR (M.P.)
............RESPONDENT
(BY SHRI N.K. GUPTA- LEARNED SENIOR COUNSEL WITH SMT. RASHI
KUSHWAHA- LEARNED COUNSEL FOR THE RESPONDNET)
Reserved on : 26/03/2025
Delivered on : 28/03/2025
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JUDGMENT
1. The appellant, Municipal Corporation, Gwalior, has filed this appeal
challenging the judgment and decree, dated 14.07.1999 passed by learned 8 th
Additional District Judge, Gwalior, in Civil Suit No.14-A of 1992 whereby the
suit for declaration of title and permanent injunction filed by respondent no.1 has
been decreed.
2. For convenience, the respondent no.1 is referred as plaintiff and appellant is
referred as defendant in this judgment. The suit property would mean building/
Farm House constructed over Municipal No.48/993/1, Hem Singh ki Pared,
Jambur Khana, Lashkar, Gwalior.
PLAINTIFF’S CASE
3. The case as pleaded by plaintiff in plaint is that the land bearing Survey
No.1361 (6 biswa), 1362 (1 bigha 2 biswa), 1363 (15 biswa), 1364 (12 biswa),
1365 (16 biswa), 1366 (12 biswa), 1367 (4 biswa), 1369 (11 biswa) total ad-
measuring 4 bigha 18 biswa situated at Hem Singh ki Pared, Mama ka Bazar,
Lashkar, Gwalior, was initially owned by one Mahadev son of Narayan Rao. It is
pleaded that Mahadev had a decree of title in his favour passed in Case No.148/59
on 9.7.1959. It is further pleaded that Mahadev son of Narayan Rao sold the
aforesaid land alongwith Farm House constructed thereon to plaintiff’s elder
brother Naresh Kumar vide registered sale deed, dated 30.7.1959. After having
purchased the aforesaid land with Farm House, it is pleaded that the plaintiff and
his family started residing in the house and cultivating the land.
4. It is further pleaded in the plaint that on dispute having arisen in the family,
the plaintiff and his brother Ramesh Chand had earlier filed a Civil Suit No.9-A of
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1984 against their elder brother Naresh Kumar which was decided vide judgment,
dated 23.09.1987, by the court of First Civil Judge, Class-2, Gwalior wherein the
property was declared to be the joint family property and each brother was
declared to have 1/3rd share therein. Thus, the plaintiff claims to be the owner in
possession of suit property by virtue to sale deed, dated 30.07.1959. The plaintiff
has further pleaded that the suit property is registered in municipal register as
House No.993/1, Ward No.48 and the defendant Corporation is recovering
Rs.900/- per year as property tax. Further, it is pleaded that the Corporation itself
granted permission to construct boundary wall surrounding his plot and also
issued a certificate certifying plaintiff’s title over the suit property.
5. It is further pleaded by plaintiff that on account of political rivalry, certain
persons in collusion with employees of Municipal Corporation, got the impugned
notice, dated 29.08.1992, issued under the seal of Commissioner alleging
violation of Section 293 of Municipal Corporation Act (in short ‘Act’) and
threatened to demolish the alleged unauthorized construction. It is pleaded that the
plaintiff immediately gave reply to the said notice on 10.09.1992 stating that no
new construction has been made by him and there is no violation of Section 293
of the Act on his part. He also raised issue of jurisdiction of the officer to have
issued the said notice. The plaintiff also served a notice under Section 401 of the
Act to defendant Corporation. The employees of defendant Corporation are bent
upon to damage his property and, therefore, the present suit for declaration and
permanent injunction was filed.
DEFENDANT’S CASE
6. The defendant Corporation denied the plaint allegations by filing written
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statement. It is the case of Corporation that land bearing Survey No.1361 & 1396
situated at Hem Singh ki Pared, Mama ka Bazar, Lashkar, Gwalior, is not owned
and possessed by plaintiff and on the contrary the suit land is the property of
Corporation because it is registered as Nazul in column 2 of khasra of samvat
2040. Denying plaintiff’s title, it was pleaded that Mahadev did not have right to
sell land to the plaintiff’s brother because it is the Corporation land. It was further
pleaded that the cases on which the plaintiff has relied upon are not binding upon
it because Corporation is not a party in these cases. It is pleaded that the plaintiff
has raised unauthorized construction and the Corporation has right to remove such
construction.
TRIAL COURT JUDGMENT
7. The learned Trial Court, after taking oral and documentary evidence of
parties, has decreed the suit holding that the plaintiff is the owner in possession of
suit property and he has not made any change in the building and has only carried
out repairs. It is also held that the defendant Corporation has no right to issue
notice to the plaintiff.
SUBMISSIONS OF APPELLANT’S COUNSEL
8. The learned Senior Counsel on behalf of the defendant Corporation,
challenging the judgment and decree passed by the Trial Court, submitted that
finding recorded by learned Trial Court that plaintiff is owner in possession of suit
property by virtue of sale deed, dated 21.07.1959, (Ex. P/1) is perverse inasmuch
as the plaintiff failed to prove that his vendor Mahadev was competent to sell the
property. It is further argued that the execution of sale deed is not proved by
examining the attesting witnesses of the deed. It is also argued that in the sale
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deed there is no mention of building constructed over the land which means that
the building has been constructed after the sale for which there is no permission
obtained from Corporation. The learned Senior Counsel also submitted that the
learned Trial Court erred in placing reliance upon judgment and decree relied
upon by plaintiff inasmuch as the defendant Corporation is not party in those
proceeding. It is further argued by him that even though the suit property is only
the Farm House, the decree has been passed in relation to entire land and building
mentioned in para 2 of the plaint. He further submits that the plaintiff has failed to
implead the State Government as party in the suit and on defendant’s application
the State Government has been impleaded as respondent in this appeal vide order,
dated 29.01.2019. He submits that the suit is liable to be dismissed in view of
provisions of Order I Rule 3-B(1)(b) of Code of Civil Procedure. He placed
reliance upon judgment rendered by this Court in the cases of Omkar Singh and
others Vs. Mansingh and others reported in 1993 JLJ 485, Lallu & Anr. Vs.
Kallu & Anr. reported in 2000(I) MPJR 58 & Vishamdevi and Ors. Vs.
Rajendra Dayal and Ors. reported in 2015 Supreme (M.P.) 415.
SUBMISSIONS OF RESPONDENT’S COUNSEL
9. Refuting the aforesaid, the learned senior counsel for respondent submitted
that the challenge to the plaintiff’s title over the suit property at the instance of
Municipal Corporation is impermissible inasmuch as the Corporation has failed to
establish that it is the property of Municipality. He further submits that in the year
1984, the Corporation itself has permitted the plaintiff to raise construct boundary
wall surrounding the land vide Ex. P/2 which shows that it accepts plaintiff’s title.
Referring to Ex. P/8, he submits that the Corporation is recovering property tax
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from the plaintiff and, therefore, is stopped from challenging his title. Further
referring to statement of sole defendant witness, he submits that the witness has
not uttered a word about the factum of property belonging to defendant and has
also not questioned plaintiff’s title.
10. The learned senior counsel further submits that the actual dispute arose
when the notice Ex.P/6 under Section 293 of the Act was issued under the seal of
Commissioner without conducting any enquiry and without affording opportunity
to him to explain. He submitted that the plaintiff submitted detailed reply to the
said notice stating that there is no new construction raised by him and the
structure is existing right from the date he has purchased the property in the year
1959 which is established from the recitals of sale deed, dated 21.07.1959, (Ex.
P/1). To corroborate this fact, he referred to Ex. P/2 which is the permission
granted by Corporation to plaintiff to construct boundary wall alongwith which
there is a map Ex. P/3 annexed which establishes existence of structure over the
land. Referring to para 7 of statement of DW-1, he submits that the permission to
construct boundary wall was granted as per map Ex. P/3.
11. The learned senior counsel further submitted that the plaintiff served
statutory notice under Section 401 of the Act to which there was no reply given by
the defendant and, therefore, adverse inference is required to be drawn against it.
He also submitted that if the plaintiff had encroached upon Government land, the
Government would have taken action against him for removal of encroachment.
However, no such action was taken which shows that his construction is not
unauthorized.
12. Regarding title of Corporation over suit property, learned senior counsel
submitted that the Tehsildar vide order, dated 25.11.1992, (Ex. P/5) has already
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held that the Corporation has no right, title or interest over the suit property. He
submits that Tehsildar was competent to pass said order under the provisions of
M.P. Land Revenue Code. He also referred to testimony of DW-1 who has not
stated anything about property belonging to defendant Corporation. Stating that
the order passed by Tehsildar would operate as res-judicata, the learned counsel
placed reliance upon judgment of Apex Court in the case of Ishwar Dutt Vs.
Land Acquisition Collector and Another reported in (2005) 7 SCC 190 and
judgment of this Court in the case of Smt. Triveni Bai Gupta Vs. Smt. Vimla
Devi Jain and others reported in 2011(2) MPHT 87.
13. Refuting the contention of appellant’s counsel regarding maintainability of
suit in view of Order 1 Rule 3-B(1)(b) of CPC, the respondent’s counsel submitted
that the plaintiff has not prayed for any relief against the State Government and
suit property being a house, provisions are not applicable. He relied upon
judgment of this court in the case of Dagariya Hagariya through L.Rs. Vs.
Suban and State of M.P. reported in 2005 (1) M.P.H.T. 388 and Ramsingh
Nihal Singh Rajput Vs. Gulab Rani wd/o Babulal and others reported in
2001(1) M.P.L.J. 702.
14. Lastly, he submitted that the scope of interference of this court under
Section 96 of CPC is limited inasmuch as, so long as the findings recorded by
learned Trial Court are not held to be perverse, the same cannot be substituted
with another view by this court. He submits that the plaintiff has failed to
establish that the findings recorded by learned Trial Court are perverse. He placed
reliance upon Apex Court judgment in the case of Venkatesh Construction
Company Vs. Karnataka Vidyuth Karkhane Limited (Kavika) reported in
(2016) 4 SCC 119, Rathnavathi and Another Vs. Kavita Ganashamdas
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reported in (2015) 5 SCC 223 and judgment of this Court in the case of
Gyanchand & Anr. Vs. Mohanlal & Ors. reported in 2008(1) MPJR 81.
APPLICATION UNDER ORDER 41 RULE 27 CPC FILED APPELLANT &
RESPONDENT
15. The defendant Corporation has filed I.A. No.3813 of 2013, which is an
application under Order 41 Rule 27 of CPC, placing on record certain documents
to show that in the records of Samvat 1997 & 2007, the land was recorded in the
name of Municipality. In support of application, the learned senior counsel has
relied upon judgment rendered by Apex Court in the case of Wadi Vs. Amilal and
Others reported in (2015) 1 SCC 677 and judgment of this Court in the case of
Shyam Gopal Bindal and Others Vs. Land Acquisition Officer and Another
reported in 2010 (3) M.P.L.J. 74 in support of his application.
16. The plaintiff has filed reply to this application and opposed the prayer of the
defendant. Relying upon order passed by Tehsildar, dated 25.11.1992, (Ex.P/5), it
is submitted by plaintiff that after considering the same documents (filed
alongwith this application), it has been held that the defendant Corporation does
not have any right, title or interest in the suit property. He submitted that the
documents were within defendant’s knowledge right from the beginning and there
is no reason assigned as to why the same were not filed during trial. He further
submitted that the defendant has not stated as to how these documents are relevant
and important for decision of this case.
17. Considered the arguments of learned counsel for both the parties on I.A.
No.3813 of 2013. There is specific pleading of defendant Corporation in para 2 of
its written statement that land being recorded as Nazul land, it is the property of
defendant Corporation. It is not the stand of the Corporation in written statement
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that the land belongs to Corporation right from samvat 1997 & 2007 as stated in
the application. Further, from the documents now sought to be filed alongwith
application, it is gathered that in respect of Survey No.1369, 1363 & 1386 alone
once there is entry made in favour of defendant Corporation. However, it is not
clear as to on what basis this single entry is made in khasra.
18. It is further worth noting here that in the order passed on 25.11.1992 by
Tehsildar, Gwalior, which is marked as Ex. P/5, it has been held that the defendant
Corporation does not have any right, title or interest over the property. It is
gathered from this order that deleting the name of Corporation, the name of
plaintiff’s brother i.e. Naresh was recorded in respect of land mentioned in para 2
of the plaint. The Corporation had challenged this change in the entry in the year
1983-84. Pertinently, in the case before Tehsildar, the defendant Corporation was
the applicant. It is also worth mentioning here that these are the same entries
which are referred in the documents now filed by Corporation alongwith the
application under consideration. Thus, the entries, of which Corporation is now
taking shelter, have already been canceled way back in 1983-84, if not before. In
the order, Tehsildar has discussed the provisions of Section 54(7) of e/;Hkkjr eky
izca/k rFkk jS;rokM+h Hkw&vkxe rFkk –“kdkf/kdkj fo/kku laor] 2007 and has held that
Mungaram has acquired rights of Pakka krishak and after his death, his widow
acquired the same rights. It is further held that after coming into force of M.P.
Land Revenue Code, 1959, by virtue of Section 158, all Pakka krishak became
Bhumiswami of the land. After having discussed as above, in para 9 of the order,
the Tehsildar has recorded a finding that the rights of Corporation, if there was
any, over the land has come to an end. This order is stated to have attained finality.
19. Thus, the documents now sought to be brought on record are of no help to
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defendant Corporation. The judgments relied upon by learned counsel for
appellant are based upon the power of this court under Order 41 Rule 27 CPC.
Since, this court has not found the documents relevant for decision of this appeal,
the judgments does not help the defendant The application I.A. No.3813 of 2013
is, therefore, rejected.
20. The plaintiff/respondent has also filed I.A. No.3635 of 2018 and I.A.
No.974 of 2022, both under Order 41 Rule 27 of CPC bringing on record certain
documents to show that the Tehsildar has granted NOC in respect of land in
question during the pendency of instant appeal. The defendant/appellant has filed
reply to the applications. These documents being subsequent to filing of this
appeal could be taken on record. However, in view of my below mentioned
finding with regard to title of the parties over suit land, the application filed by
plaintiff need not be allowed as the same would require remand of the matter to
the Trial Court. Both the applications are accordingly rejected.
DISCUSSION ON MERITS
21. In view of pleadings and evidence led by the parties before the learned Trial
Court, the issue about title of parties over the suit property is to be examined. The
plaintiff has relied upon registered sale deed, dated 21.07.1959, (Ex. P/1) to
establish his title. On the other hand, the defendant Corporation has though
pleaded that the land belongs to Corporation, it failed to establish this fact. Rather
from order, dated 25.11.1992, (Ex. P/5) and in view of discussion made above in
para 18, it is evident that the Corporation has ceased to have any right, title or
interest over the property, if it had any, after coming into force of MPLRC, 1959.
The proceedings which led to passing of this order were initiated at the instance of
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defendant Corporation and, therefore, it is bound by the findings recorded therein
by virtue of provisions of Section 11 Explanation VIII of CPC. Moreso, apart
from property tax receipt marked as Ex. P/8, the plaintiff’s title is further
corroborated by document marked as Ex. P/9 which is certificate issued by
defendant Corporation on 28.11.1991 certifying that plaintiff’s name is recorded
as owner of suit property and has also determined annual rent over the property.
From document marked as Ex.P/2 & P/3, it is gathered that the defendant
Corporation has granted permission to plaintiff to construct the boundary wall
surrounding the land in question.
22. The learned senior counsel for defendant submitted that the Tehsildar was
not competent to declare plaintiff’s title exercising power under provisions of M.P.
Land Revenue Code. He relied upon judgment of this court in the case of
Ramgopal Vs. Chetu reported in 1976 RN 146. On the other hand, the plaintiff’s
counsel submitted that the Tehsildar was competent to pass the order Ex. P/5
inasmuch as declaration of a person to be Bhumiswami is within his jurisdiction
under the provisions of M.P. Land Revenue Code. He relied upon judgment of
Apex Court in the case of Ishwar Dutt Vs. Land Acquisition Collector and
Another reported in (2005) 7 SCC 190 and judgment of this Court in the case of
Smt. Triveni Bai Gupta Vs. Smt. Vimla Devi Jain and others reported in
2011(2) M.P.H.T. 87.
23. From perusal of order Ex. P/5, it is evident that the proceedings were
initiated by defendant Corporation being aggrieved by removal of its name from
the entries made in Khasra. The Tehsildar after considering the provisions of
Section 54(7) of e/;Hkkjr eky izca/k rFkk jS;rokM+h Hkw&vkxe rFkk –“kdkf/kdkj fo/kku laor
2007, held that Mungaram has acquired rights of Pakka Krishak and after his
12
death, his widow acquired the same rights. It is further discussed that after coming
into force of M.P. Land Revenue Code, 1959, by virtue of Section 158, all Pakka
Krishak became Bhumiswami of the land. After having discussed as above, in para
9 of the order, the Tehsildar has recorded a finding that the rights of Corporation,
if there was any, over the land has come to an end. Thus, it cannot be said that the
order passed by Tehsildar was without jurisdiction. This order having attained
finality would operate as res- judicata by virtue of Section 11 Explanation VIII of
Code of Civil Procedure which reads as under:-
“Explanation VIII.–An issue heard and finally decided by a
court of limited jurisdiction, competent to decide such issue,
shall operate as res judicata in a subsequent suit,
notwithstanding that such court of limited jurisdiction was not
competent to try such subsequent suit or the suit in which such
issue has been subsequently raised.”
24. In this regard, the Apex Court judgment in the case of Bhagwan Das vs.
Sardar Atma Singh reported in (1996)7 SCC 275 may be referred wherein the
Apex Court held as under:
“9.The aforesaid legal and factual spectrum would permit us,
indeed require us, to accept the case of the appellants. We,
therefore, hold that possession of the land could not have been
demanded by the respondent, because the first appellant’s father
Ramnath had been accepted as a lessee and not an employee, in
the first round of litigation noted above. As to the finding in that
proceeding, the submission of Shri Sanghi is that that cannot
operate as res judicata, to which the reply of Shri Subba Rao is
that that would so operate, in view of what has been held by this
Court in Sulochana Amma v. Narayanan Nair[(1994) 2 SCC 14]
(at SCC page 18) in which it has been observed that
Explanation VIII to Section 11 of CPC would apply to the
findings of court of either limited pecuniary jurisdiction or of
special jurisdiction like the Revenue Tribunal.”
13
25. Even otherwise, the principle of res-judicata being based upon public
policy would otherwise be attracted in the facts of this case as has been held by
Apex Court in the case of Ishwar Dutt vs. Collect (LA) reported in (2005)7
SCC 190. Para 18 being relevant is reproduced hereunder:
“18. In the Reference Court or for that matter the High Court
exercising its appellate jurisdiction under Section 54 of the Act
could not have dealt with the said question. The principle of res
judicata is a specie of the principle of estoppel. When a
proceeding based on a particular cause of action has attained
finality, the principle of res judicata shall fully apply.”
26. Thus the findings recorded by Tehsildar in order, dated 25.11.1992, (Ex.
P/5) would operate as res-judicata against the defendant Corporation.
27. Apart from the order of Tehsildar, the plaintiff’s title is corroborated with
document filed as Ex. P/2 which is the permission to construct boundary wall
granted by Corporation to plaintiff annexed to which is the map (Ex. P/3) which
shows existence of structure in question. The certificate issued by Corporation
vide Ex. P/9 and property tax receipt filed as Ex. P/8 further corroborates
plaintiff’s title. Further, the only witness examined on behalf of defendant
Corporation namely Mr. Navneet Sharma, Assistant Engineer of Corporation, has
not stated anything about title of Corporation and has also not questioned the
plaintiff’s title in his statement. Thus, the evidence led by plaintiff in support of
his title remained unrebutted.
28. The stand of the defendant Corporation that the plaintiff’s vendor was not
competent to execute the sale deed Ex. P/1 also needs to be rejected inasmuch as,
since the Corporation did not have title over the property, its locus to challenge
the plaintiff’s title is questionable. Further, it being a deed of 1959 i.e. executed
14
about 33 years prior to filing of suit, has to be accepted in view of provisions of
Section 90 of Indian Evidence Act.
29. In view of discussion made above, the finding recorded by learned Trial
Court on issue no.1 & 4 is found to be based upon proper appreciation of
evidence. The same is hereby upheld.
30. The issue with regard to alleged unauthorized construction by plaintiff and
consequent issuance of notice by Corporation under Section 293 of the Act needs
to be considered now. It is gathered from pleading that the entire dispute arose
when the defendant Corporation issued notice, dated 29.8.1992, (Ex. P/6) under
Section 293 of the Act. The plaintiff gave reply to this notice marked as Ex. P/7.
However, no order determining that the alleged is the unauthorized construction
by plaintiff, has been passed thereafter by Corporation. Further, it is the specific
stand of plaintiff that the construction was already existing when they purchased
the same on 21.07.1959 which has not been rebutted by making an enquiry. The
submission of appellant that in the sale deed there is no mention of construction
and it is only in respect of open land is also found to be incorrect in view of
following recital made in the sale deed:
“—————–blh fodzh/ku esa vkjkth –f”k esa ous gq;s edkukr o yxk gqok ikbi iai o ehVj
fotyh o dqaok o Qly xUuk vkfn tks [kM+h gS o; esa lewy gS [kjhnkj viuk uke ljdkjh
dkxtkr uxj ikfyd ;k tgka tgka Hkh bUnzkt gks——————–”
31. Further, alongwith the permission (Ex. P/2) granted by Corporation to
plaintiff to construct boundary wall, map Ex. P/3 is annexed which also shows the
existence of structure over the land. The sole defendant witness also could not
point out as to whether any enquiry was conducted prior to issuance of notice. On
the contrary, it is clear from his statement that he was not posted in Corporation
15
when the alleged construction is made. He is thus not a competent witness to say
about construction. There is no record produced by Corporation to establish that
alleged is the new construction made by plaintiff.
32. Thus, it is found that the notice, dated 29.08.1992, (Ex. P/6), whereby a
finding is recorded that the construction is unauthorized, has been issued without
conducting any enquiry. Thus, the notice is found to be illegal and finding
recorded by learned Trial Court in respect of issue no.2 & 3 is upheld.
33. Now the objection of appellant’s counsel relating to violation of provisions
of Order1 Rule 3-B(1)(b) of CPC needs to be considered. Being aggrieved by the
illegal notice issued by Corporation, the plaintiff filed the suit praying for a
declaration of his title over the suit property and for decree of permanent
injunction restraining the defendant Corporation from interfering with his
possession and further from causing damage to his property. Thus, no relief is
prayed for against the State Government. This Court in the case of Dagariya
Hagariya through L.Rs. Vs. Suban and State of M.P. reported in 2005(1)
M.P.H.T. 388 held as under:-
“6. I am not in agreement with the arguments of learned Counsel
for the appellant. State Govt. has already made party in the
appeal. There is no relief has been sought against the State of
M.P. Single Bench of this Hon’ble Court in Shankar Lodhi Vs.
Pannalal, 1998(1) M.P. Weekly Notes 136, has held that no relief
claimed against the State non-impleading as State Govt. has no
consequences. Further the State Govt. did not file any objection
when it has already been impleaded as party in the second
appeal. Hence, in the above facts, non-joinder of State Govt. by
the plaintiff/appellant in the first appeal has no consequences.
On the basis of the above findings, I answer the substantial
question of law that the First Appellate Court can proceed with
the appeal without making State Govt. as a party. With regard to
16framing other substantial questions as argued by the learned
Counsel for the appellant. I am not impressed any the said
arguments and in my opinion there is no necessary for
formulating other substantial questions of law. On the basis of
above facts and circumstances, I do not find any substance in the
appeal and it is dismissed without any order as to costs. Parties
are directed to bear their own costs.”
34. Further, in the case of Ram Singh Nihal Singh Rajput vs. Gulab Rani
reported in 2000 SCC Online MP 351, this Court held as under:
“5. In the case of Brijraj Singh (supra), the Division Bench of this
Court has laid down that provisions of Order 6 Rule 1-A Civil
Procedure Code should not be construed in such a manner as to
cause injustice. No decree passed shall be set aside unless the State
be in a position to point out that merits of the case or jurisdiction of
the Court has been affected on account of non-compliance with the
provisions contained in Order I, Rule 3-B and Order 6, Rule 4-A
Civil Procedure Code.”
35. In the instant case also, no relief is claimed against State Government nor
the State could point out that any injustice has caused or the jurisdiction of court
has affected on account of non-compliance of provisions of Order 1 Rule 3-B
CPC. On the contrary, in its reply filed by State Government to the application
filed by defendant Corporation, it is stated that the Corporation is there to defend
the case and it has nothing to do in the matter. The judgment cited by learned
counsel for defendant on this issue are of no help inasmuch as in these judgments,
the interest of State Government was found involved in the facts of the case. In
view of the aforesaid, the objection of learned counsel for Corporation is
unacceptable and is hereby rejected.
36. The Corporation has filed another application under Section 151 CPC (I.A.
No.915 of 2023) praying for direction for remand of the case to the learned Trial
17
Court for fresh adjudication on merits of the case. However, in view of discussion
made hereinbefore, no ground for remand of the matter is made out. The
application I.A. No.915 of 2023 is accordingly rejected.
37. Considering the discussion made above and also in view of law laid down
by Apex Court in the case of Venkatesh Construction Company Vs. Karnataka
Vidyuth Karkhane Limited (Kavika) reported in (2016)4 SCC 119,
Rathnavathi and another Vs. Kavita Ganashamdas reported in (2015) 5 SCC
223 and judgment of this court in the case of Gyanchand & Anr. Vs. Mohanlal
& Ors. reported in 2008(I) MPJR 81 regarding scope of this Court under Section
96 of CPC, in absence of any perversity pointed out by the appellant in the
findings recorded by learned Trial Court, no case for interference is made out. The
appeal is, accordingly, dismissed with cost.
(ASHISH SHROTI)
JUDGE
rahul
RAHUL Digitally signed by RAHUL SINGH PARIHAR
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH COURT
OF MADHYA PRADESH BENCH GWALIOR,
SINGH
2.5.4.20=eac942476567cd1b39b3da460684034
62fdf82ab676d0cde4dee473fe77953f5,
postalCode=474001, st=Madhya Pradesh,
serialNumber=0275C4F803F94C47998BE5C534
PARIHAR
E21BDED910FD4AB9D159B55575E814D05B2EE
D, cn=RAHUL SINGH PARIHAR
Date: 2025.03.28 18:27:51 -07'00'
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