LexRATUL MAHANTA versus NIRMALENDU SAHA
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A B C D E F G H 92 SUPREME COURT REPORTS [2021] 8 S.C.R. RATUL MAHANTA V. NIRMALENDU SAHA (Civil Appeal No. 4627 of 2021) AUGUST 10, 2021 [HEMANT GUPTA AND A. S. BOPANNA, JJ.] Municipal Corporation: Guwahati Municipal Corporation Act, 1971: ss. 341, 246, 247 and 248 – Bar of jurisdiction of civil court – Issue relating to a common drain between two private individuals residing within the limits of the Municipal Corporation – Held: Is not an issue regarding which a specific bar is contemplated against approaching the civil court for relief – ss. 246, 247 and 248 though referred to the ownership and the manner in which the drains connected to municipal drain are to be used and the Commissioner is given the authority to compel the owner of a drain to permit another property owner to use the same, the said provisions cannot be considered either as an express or an implied bar on the civil court to entertain a suit relating to the declaration of an existing right to use of the drain – On facts, appellant is asserting about a right which existed and is seeking to safeguard and continue to exercise such right – Case pleaded is not to the effect that any of them own the drain but that the respondent is seeking to alter that position and thus, be restrained – Such relief is to be considered in the suit based on the evidence that would be tendered – Thus, such relief is not barred under any law - High Court wrongly rejected the plaint, when in the instant facts there is neither express nor implied bar under any law, whereas Munsif was justified in passing the order holding the suit to be maintainable – Thus, the order passed by the High Court is set aside. Allowing the appeal, the Court HELD: 1.1 A bare perusal of Section 9 CPC indicates that the courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Though in the instant case, the issue had not [2021] 8 S.C.R. 92 92 A B C D E F G H 93 arisen before the Munsif while considering an application under Order VII Rule 11(d) of CPC, taking note of the fact that the High Court has invoked the said provision to consider as to whether the suit is barred and has thereafter held that the civil court has no jurisdiction and ordered rejection of plaint. The perusal of Order VII Rule 11(d) CPC would indicate that there would be a bar for the civil court to entertain the suit, if such suit is barred either expressly or impliedly by any law. Further, Order VII Rule 11(d) contemplates that from the statement contained in the plaint the suit should appear to be barred by any law, in which case the plaint shall be rejected. [Para 7][99-F-H; 100-A- D] 1.2 On perusal of the contents of Section 341 of the Guwahati Municipal Corporation Act, 1971, it indicates that no civil court shall have jurisdiction to settle, decide or deal with any question which is under that part wherein Section 341 is placed and is required to be settled, decided or dealt with by the Commissioner. The Part VI under which a bar is imposed relates to Land, Buildings and Streets. Therefore, on the face of it, it indicates that the issue relating to a common drain between two private individuals residing within the limits of the Municipal Corporation is not an issue regarding which a specific bar is contemplated against approaching the civil court for relief. [Para 11][101-E-G] 1.3 The GMC Act no doubt makes provision to empower the Commissioner under certain circumstances to regulate the manner in which the use of the drain connected with the municipal drain is to be used. The provisions to that effect are contained in Sections 246, 247 and 248, in Part V of GMC Act. Perusal of the said provisions would indicate that the Commissioner is empowered by granting the authority under GMC Act to compel the owner or joint owner of a drain to permit a person who is not the owner of such drain to use that drain. In effect, the Commissioner is given the authority to create a right in favour of the property owner to drain out the water through the drain owned by any other property owner. In the instant case the appellant is not seeking for creation of such right. The case as pleaded and noticed indicates that the appellant is asserting about a right which RATUL MAHANTA V. NIRMALENDU SAHA A B C D E F G H 94 SUPREME COURT REPORTS [2021] 8 S.C.R. existed and is seeking to safeguard and continue to exercise such right. The case pleaded is not to the ef
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