Govind Das v. 1. Brindavan Colony Residents Welfare Association

Counsel for the Petitioner: Mr. S BALCHAND, Advocate Counsel for the Respondents -1&2: Mr RAJASHEKAR RAO SALVAJI, Advocate The Court made the following: ORDER IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA DATE: 26.1L.2O25 CIVIL REVISION PETITION NO.454 OF 2013 Between: Govinda Das S/o Late Parmananda Das ...Petitioner And Brindavan Colony Residents Welfare Association and another. .Respondents. ORDER: This Civil Revision Petition is filed under Article 227 of the Constitution of India aggrieved by the order, dated

29.LO.2O12 in I.A.No.3346 of 2Ol2 in O.S.S.R.No.L4228 of 2Ol'2 passed by the learned Principal District Judge, at L.B.Nagar, Ranga Reddy District, whereby the apptication filed under Section 91 (1) (B) read with 151 of the Code of Civil Procedure, 19OB (for short, C.P.C) seeking to grant leave to respondent No.l herein to sue the revision petitioner for causing public nuisance by representing the public at large and to protect the public property for use of the same by one and all, was allowed.

2. Heard Sri S.Balchand, learned counsel for the 1 2 NNR,J cry_.454_2013 revision petitioner and Sri Rajashekar, learned counsel appearing for respondent Nos.l and 2. Since respondent No.3 reported as not necessary party, no notice was issued to him.

3. Brief facts of the case are as follows: Respondent Nos.l and 2 herein filed a suit in O.S.S.R.No. 14228 of 2OL2 (which was numbered as O.S.No.lO23 of 2Ol2l on the file of learned District Judge, Ranga Redd-y District at L.B.Nagar, seeking for declaratiorr and perpetual injunction against revision petitioner and respondent No.3 herein. Respondent No.1 herein filed the said suit in the capacity of the President of Brindaval colony Residents Welfare Association, Saroornagar, Hyderabad, with the follou,ing relief: "to declare the schedule A and B properties are public properties which are earmarked for the purpose of constructiott of Commuritg Hall, and a School in the lagout of Brhtd"auan Colottg, Lirtgojiguda, Saroorrtagar Mandal R.R.Distnct and to restrairt the defendants, their henchmen, attornegs, agents, seruants, friends, angbody else claiming through thent from alienating or altering the suit schedule A and B properties...,, ln the said suit, respondent Nos.1 and 2 herein fired the aforesaid application seeking leave of the Court to file the above suit and the said application was allowed

4. Before proceeding further, for better appreciation, it i"1 aJ NNR,J crp_454_20 I 3 is necessary to extract Section 91 (1) of C.P.C, which reads as "97. htblic nuiscnces and other wrongful acts affecting the public.- (1) ltt the case o.f a public nuisarrce or other wronglful act affecting, or likelu to affect, the public, a suit for a declaration and iniunction or for such other retief as may be appropiate in the circumstartces of tlrc case, tnalJ be instituted,- (a) by the Aduocate-General, or (b) with the leaue of the Court, by ttuo or more persons, euen though no special damage ltas been caused to strch persons by reason of such public nuisance or other wrongful Qct... -"

5. The contention of learned counsel for the petitioner herein iS that though the petitioner raised various grounds touching upon the merits of the case, including other suits pending before various Courts between the parties, that respondent Nos.1 and 2 are indulging in multiplicity of proceedings with a mala fide intention to harass the revision petitioner with an oblique motive, the trial Court has allowed the application. He further contended that the learned trial Court ought to have applied the principle of res iudicata to the present facts of the case, and therefore no permission or leave could have been granted to respondent Nos.1 and 2 to file the suit under Section 91 of the C.P.C. He further contended that when petitioner is claiming right, title and interest over the subject property denying public interest, public nuisanc^e or \_ \ 4 NNR,J cry_454J013 public right by respondent Nos.1 and 2 does not arise, as the petitioner had already raised various grounds (numbering 34) in the petition.

6. I{e further contended that the learned trial court had no jurisdiction to issue notice to the petitioner in the leave petition rvhen the plaint was presented under Section 91 of C.P.C. The entire exercise undertaken by learned trial Court is absolutelv irrelevant, illegal and it would affect the rights of the revision petitioner. It was further averred that the learned trial Cor-rrt sent notice in the leave petition calling upon the petitioner to file his counter. In fact, the trial Court ought to have seen that the suit was filed under Section'g1 (1) of C.P.C and granting leave is a privity between the plaintiff and the Court and the defendants come into picture only after the leave is granted and being summoned in the suit to defend and if there is any defect in grant of leave by the Court or it was irregular, defendant would be at liberty to challenge such leave in course of fiting written statement.

7. Learned counsel further contended that in the leave application, notice was issued to the revision petitioner herein, who is defendant No. 1. The revision petitioner also filed / / i'- 5 NNR,J crp_454_20 I 3 counter-affidavit raising all the pleas in respect of title and has gone into the merits of the case and also questioned as to the merits in the petition and leave to file suit contending that leave to file suit cannot be granted and sought for dismissal of the same

8. Learned counsel for respondent Nos.1 and 2 raised a plea that no notice is required to petitioner for granting leave. In support of his contentions, he also relied upon the Judgment of High Court of Patna (Ranchi Bench) in Tata Iron and Steel Co. Ltd. V. Tarkeshwar Singh and Orsl wherein at paragraph Nos.4 and 5 it was held as follows: "4. Being weaponed bg the obseruation of this Court, as mentioned aboue, the defendant-petitioner became enthusiastic that he is also to be heard before the order of leaue is passed by the court for proceeding uith the suit but the uthole thing is misconceiued. There wqs no obseruation by this Court that the petitioner-deferudanf is also to be heard under Section 91(1)(b) of the Code of Ciuil Procedure. The matter under Section 91(1)(b) of the Code of Ciuit Procedure regarding the leaue of the Court is a priuitg between the plaintiff and the court. The defendants come into the picture onlg after the leaue is granted and being summoned.. Some procedural ircegulaitg mag be there regarding issuance of shout cause notice to the defendants but nouthere in that notice it was mentioned tLwt the petitioner was to fiIe show cause on the praAer of the teaue of the court sought for by the ptaintiffs. Onlg because such redundant notice utas giuen, the defendant-petitioner did not get ang right to file objection in the matter of leaue of the court as contemplated under Section 91(1)(b) of the Code of Ciuil Procedure. I haue already mentioned that leaue matter is before the proceeding of the suit. If leaue was not granted then the suit has got no existence and the suit comes into existence only after the leque is granted and until and unless the suit is on board, the dekndant has got no existence. Howeuer, definitelg if there is any defect tn grant of leaue of the court or it was irregular then the defendant would be at libertg to challenge such leaue in course of the suit bg filing written statement etc., but when the I Civil Revision Petition No.3 of 1997 6 NNR,J cry_454_2013 matter is in between the ptaintiff and the court, the defendant-petitioner has got tto statutory or uested right to be heard in the matter of leaue of the Court. 5. Mr. K.D. Chatterjee, learned Counsel for the petitioner, tried to impress this Court that principle of natural justice is uiolated uhile not giuirtg chance to the petitiorrcr to be lrcard in the ntqtter of grant of leaue und.er sectiott 91(1)(b) of ttrc code of Ciuil Procedure. The question of uioktliott of tlrc prirtciples of rtatural iustice does not arise as because the clefetd-ctri ufter the leaue is granted conles in existence on receipt of sl{nuruo/}s irt the suit and lrc shall haue a right to question the legalitg or othenttise of the leaue granted. bg the Court in faitour of the plaintiffs, but at a prernature stage, he ho"s no right to be lrcard. This court had also rtot giueru ang indulgence cannot be granted also as the legal posrtiort stcurrJs. "

9. He further argued and contended that grant of leave is i,nter se between the Court and respondent Nos.1 and 2, and the role of revision petitioner may not be necessary. The contention of respondent Nos.1 and 2 is that the said aspect of granting leave cannot be interfered with and placed reliance on the judgment of High Court of Punjab and Haryana at. Chandigarh in case of Senior Secondary School, Charkhi Dadri v. IJ.azari Lal and other2, wherein at paragraph Nos.1 and,2 it was held as follows: "The schoot which was aggrieued bg tLrc order granting relief under Section 91 CPC at the ex parte stage is the reuision petitioner before this Court. The suit has beeru filed bg some members of the public claiming that the petitioner-sclnol is collecting huge amount from stuclents in the shape of admission fee, monthlg fee, tuition fee etc. and seeks for a direction that the students shall not 'indulge in practices which according to the plaintiffs are against law. Although seueral grounds are urged that tlrc Court cannot construe the so-called collectiort of huge amount from students as constituting public nuisanrce, I will find that there is not get a need for addressing the said arguntent because the order suffers from a fundamentq.l uice of grant of leaue at ex parte stage without seruing notice to the persons who would be affected bg suclt a decision. Similarlg euien a consideration of 2 zoto scc online P&ll f434 .r" \, 7 NNR,J cry-454_2013 whether a suit could be permttted. to be instituted in a representatiue capacitg und.er Order 1 Rule 8 must be examined from the point of uiew of whether the plaintiffs could treat themselues as representatiues for the entire uillage and whether their own prayer in the suit will be supported bg other uillagers. Proper notice will haue to be giuen also before such a decision is taken and call upon them to file their objections, if any, before the decision is takert. The Suprerne Court had an occasion to consider the similar procedure prescribed for suits in relation to the public clnrities under Sectton 92 CPC irt R.M. Narayana Chettiar u. N. Lakshmanan Chettiar (1991) / SCC 48 that the Court will not simply grant sanction under Section 92 CPC without seruing notice of application to the respondents but take a decision after heaing the objections. This was cited and followed in Vidgodaya Trust u. Mohan Prasad (2OOB) 4 SCC 115. The same procedure would haue to be applied also for similar exercise of grant of leaue contemplated under Section 91 CPC. The Delhi High Court had qlso an occasion to consider the procedure to be followed in a suit filed under Order 1 Rule B CPC for relief under Section 91 CPC. Iru Anang Pal u. IJnion of India 2010 (B) RCR (Ciuil) 830. It directed a similar consideration as I haue done in the instant case.

2. t will remtnd the Court of its dutg under Order 1 Rule B CPC to giue notice of suit to all persons who are interested either bg personal seruice or bg reason of number of persons who are purported to represent and if seruice of notice is not practicable, fo tssue public aduertisements, as the Court mag direct. The Court will then take a decision after such a publication or seruice is effected in the nlanner contemplated under Order 1 Rule B CPC. Euen a decis.ion to grant leaue under Section 91 CPC, although not an elaborate procedure, the court must be satisfied *Lat the notice is issued to the defendants who mag be affected bg ttrc decision tlwt the Court takes, before such a decision is taken and call upon tlrcm to file their objections, if ang, before the decision is taken. Tlrc Supreme Court had an occasion to consider the similar procedure prescribed for suits in relation to the public chaities under Section 92 CPC fn R.M.Narayana Chettiar v. N.Lakshmanan Chettiar (1991) 1 SCC 48 that the Court will not simply grant sanction under Section 92 CPC without serving notice of apptiiation to the cited and followed. in Vid.godaga Tntst u. Mohan Prasad (2008) 4 SCC 115. The same procedure would haue to be applied also for similar exercise of grant of leaue contemplated under Section 91 CPC. The Delhi High Court had also an occasion to consider the procedure to be followed in a suit Jiled under Order 1 Rule B CPC for relief under Section 91 CPC. In Anang Pal v. Union of India 2010 (S) RCR (Civil) 830. It directed a similar consideration as I have done in the instant case. "

10. Further, he has also relied upon the Judgment of the Hon'ble Supreme Court in R.M.Narayana Chettiar and \r 8 NNR,J cry-454-2013 i''',, another v. N.Lakshmanan Chettiar and other3, wherein it was held thus "A plain reading of section 92 of the Code indicates that leaue of the cottrl is a pre-condition or a conditiort precedent for the institution of a suit against a public trust for the reliefs set out in the said section: urzlr:ss all the beneficiaries join in instituting the suit, if such a suit is instituted without leaue, it would not be rnaintainable at all. Hauhry in mind, the objectiues underlyittg section 92 and the language thereof, it appears to us that, as a rule caution, the court should normallg. unless it is impracticable or inconuenient to do so, giue a notice to the proposed defendants before granting leaue under section 92 to institute a suit. The defendants could brirry to the notice of the court for instance that the allegatiorts made in the plaint are friuolous or reckless. Apart from this, they could, in a giuen case, poirtt out that the persons who are applgirtg for leaue under section 92 are doing so merelg with q uiew to harass the tntst or haue such antecedents that it would be undesirable to grant leaue to such persons. The desirabilitg of such notice being giuen to the defendants, howeuer, cannot be regarded as a statutory requirement to be complied with before leque under section 92 caru be granted as that would lead to unnecessary delag and, in a giuen case, cause considerable loss to the public trust. Such a construction of the prouisions of section 92 of the Code would render it dfficutt for the beneficiaries of a public trust to obtain urgent interim orders from the coutT euen though tlte circumstances rnight warrqnt such relief being grarfied. Keeping in mind these considerations, in our opinion, althougll as a rule of caution, court should normallg giue notice to the defendants before granting leaue under the said section to institute a suit, the court is not bound to do so. If a suit is instituted on the basis of such leaue, grarted without notice to the defendant1 the suit would not therebg be rendered bod in law or non-rnaintairwble. The grant of leaue cannot be regarded as defeating or euen seriouslg prejudicing ang right of the proposed defendants because it is ahuags open to them to file an application for reuocation of the leaue which can be considered on merits and according to law."

11. Considering the contentions of both the parties and as seen from the said decisions and the provision under Section 91 of C.P.C., notice is not required while granting leave for filing suit. In the present case also, notice is not required as held by High Court of Patna. The powers of the defendants would come into existence only on receipt of summons in the '(tsgo) Supp.2 S.c.R (ttt ". 9 NNR,J crp_454 2013 suit and then only they shall have to question legality or othervidse of the leave granted by the Court in favour of plaintiff, but not at premature stage and he has no right to be heard. If there is any defect in granting of leave by the Court or it was irregular, then the defendants would be at libeity to deny the said leave in the course of suit proceedings by filing written statement. But, when the matter is in between the plaintiff and court, it is held that the defendant has no statutory or vested right to seek that he has to be heard before granting leave. L2. On similar lines, the High Court of Patna (Ranchi Bench) in case of Tarkeshwar Singh's case held that considering the procedure laid down und.er Order I Rule B of C.P.C in the manner referred to above, remanded the matter back to the court. The Judgment which is relied on by the learned counsel for respond.ent Nos.1 and 2, the learned trial Court held that though the procedure does not contemplate for issuance of notice prior to considering the leave but it appears as a matter of care and caution, the learned Judge issued notice to respondents/defendants before granting leave and the Court is not bound to do so. It was held that even if rA.--''-" \ l0 NNR,J cp_454_2013 { 11,, suit is instituted on the basis of such leave, without notice to the defendants, the suit would not be bad in law or not maintainable. Grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defend.ants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law.

13. But, in the present case, the said situation does not arise as the notice to the defendant was issued prior to granting of leave and he was given opportunity to defend such application by fiiing counter. The defendant was heard in respect of granting of leave and finally leave was granted by allowing the application. L4. Though the contention of the petitioner is with regard to issuance of notice, rightly or wrongly the petitioner has participated in the said I.A. and contested the same, the plea of issuance of notice would not be available to the revision petitioner at this juncture. No opportunity will be available to the petitioner to re-agitate the sarne though he has a liberty to raise such pleas in suit and he has every right to prevent suit by raising issues in respect of adver(irg to the pleadings in the i I i I , 3 NNR,J crp_454_2013 affidavit. So also the petitioner is entitled to raise any such plea even in respect of granting leave.

15. Having regard to the submissions made by both the counsel and considering the facts and circumstances of the case, this Court does not find any ground to interfere with the order passed by the learned trial Court.

16. Accordingly, the Civil Revision Petition is dismissed confirming the order, dated 29.1O.2012 in I.A.No.3346 of 2Ol2 in O.S.S.R.No. 14228 of 2O12 passed by the learned Principal District Judge, at L.B.Nagar, Ranga Reddy District. However, the petitioner is at liberty to raise all his contentions and pleadings which were raised before this Court can be raised in respect of leave and other grounds herein before the learned triai Court. There shall be no order as to costs. Miscellaneous petitions, if orll, pending shall stand closed. S . A. SREENIVASA REDDY ISTANT REGISTRAR //TRUE COPY/ SECTION OFFICER To, w Rc/Sa

1. The Principal District Judge, Ranga Reddy District at L.B. Nagar. 2. The I Additional District Judge, Ranga Reddy District at L.B. Nagar, Hyderabad.

3. One CC to Mr. S BALCHAND, Advocate [OPUC] 4. One CC to Mr. RAJA SHEKAR RAO SALVAJI, Advocate [OPUC] 5. Two CD Copies HIGH COURT DATEDi 2611112025 d- t ORDER CRP.N o.454 of 2013 THE S ? 2e JAli 202$ * * Accordingly, this Civil Revision Petition is Dismissed. \