HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No v. Shri Mahesh Agarwal, Advocate, Kishangarh Shri Brijesh Panwar, Advocate, Kishangarh

Judgment

2. For Appellant(s) : Mr. Ajay Singh for Mr. Anil Tiwari for respondent No.1 For Respondent(s) : None present HON'BLE MR. JUSTICE MANEESH SHARMA 09/07/2025

Order

1. No one has put in appearance on behalf of the plaintiff/respondents.

2. Present second appeal has been filed under Section 100 Code of Civil Procedure, 1908 by the appellants, challenging the judgment and decree dated 21.09.1999 passed by the Additional District Judge, Kishangarh, in Appeal No.9/95, dismissing the appeal filed by the appellant-Municipal Corporation, and affirming the judgment and decree dated 27.07.1995 passed by the Civil Judge (J.D)-cum-Judicial Magistrate, Kishangarh, in Civil Suit No.140/1994.

3. Brief facts of the case giving rise to the present second appeal are that on 05.12.1994, the plaintiff/respondents filed a suit for mandatory injunction while stating that the plaintiff/respondents are residents of Kishangarh and the main streets of the town are crowded with stray animals and the stray animals are roaming around due to lack of checks and balances in [2025:RJ-JP:25381] (2 of 8) [CSA-368/2000] place, further this frequent movement of the crowd of said stray animals is causing various hindrances, accidents and also obstructing free flow of traffic.

4. That despite bringing the said facts to the notice of the defendants-appellants, they are not taking any steps to solve the same, therefore, the defendant-appellant may be injuncted mandatorily to take remedial measures to control the frequent movement of stray animals crowding the roads.

5. That the notice of this suit was served upon the defendant/appellant and by filing the written-statement, wherein it was stated that they have already made shelter houses for stray animals and if anyone is aggrieved from the movement of stray animals they can lodge complaint in respect of the same. It was pleaded that the present suit was filed without serving a notice under Section 271 of the Rajasthan Municipalities Act, 1959, therefore, the suit is not maintainable.

6. On the basis of the pleadings of the parties, the learned trial Court framed three issues.

7. In order to substantiate the averments of the plaint, the plaintiff examined himself as PW-1, Brijesh Panwar as PW-2 and Sujit Prakash Sharma as PW-3.

8. In rebuttal, despite being granted an opportunity, the defendant/appellant failed to lead any oral or documentary evidence.

9. The learned Trial Court, after considering the evidence on record and hearing arguments of the learned counsels for the respective parties, passed impugned judgment and decree dated

27.07.1995, decreed the suit and directed the defendant/appellant [2025:RJ-JP:25381] (3 of 8) [CSA-368/2000] to take remedial measures to remove the stray animals from the roads and take appropriate steps to prevent the frequent movement of the stray animals crowding of the streets.

10. Being aggrieved of the judgment and decree, the defendants/appellants preferred a regular civil appeal under Section 96 of the Civil Procedure Code, 1908 and the learned Appellate Court, after considering the pleadings of the parties, evidence on record, turned down the objections of the defendant/appellant and dismissed the appeal and affirmed the judgment and decree dated 27.07.1995.

11. Being aggrieved by the concurrent findings of fact arrived at by the learned Appellate Court, the appellant has preferred the second appeal.

12. That on 18.09.2000, while admitting the appeal the following substantial questions of law were followed:- "1. Whether the first appellate court, being last court of fact, was required to re-appreciate the oral and documentary evidence consciously, with reference to the salient features of law, involved in the instant case and failure of the first appellate court, in the present case, makes the judgment impugned not sustainable, in the eye of law?

2. Whether first appellate courts are to decide the controversy in first appeals, either issue wise or by formulating questions for determination, as envisaged under Order 41, Rule 31 of the Code of Civil Procedure?

3. Whether expression "injunction", used under Section 91 of the Code of Civil Procedure, includes mandatory injunction within its hold, if so, what is its effect?

4. Whether a suit for mandatory injunction is barred under Section 271 of the Rajasthan Municipal Act, 1959, irrespective of exceptions, carved out under sub-section (3) of the aforesaid Section?" [2025:RJ-JP:25381] (4 of 8) [CSA-368/2000]

13. Heard and considered the submissions made at bar as also the material available on record.

14. The only arguments advanced by the learned counsel for the appellant qua maintainability of suit for want of notice under Section 271 of Rajasthan Municipalities Act, 1959 is unsustainable because the present suit is a simpliciter suit for injunction whereby the plaintiff has sought mandatory injunction against the defendant/appellant to take remedial measures for removal of stray animals from the main public road in the interest of public at large. In substance the learned courts below simply reminded the Appellant to follow their duties and nothing unusual has been ordered. Therefore, arguments so raised lack merit.

15. At the outset, it is pertinent to reproduce the Section 271 of the Rajasthan Municipalities Act, 1959 which read as under:- "Section 271 Suits against board any its officers. (1) No suit shall be Instituted against a board or against the chairman, vice-chairman member, officer or servant of board or against any person acting under the direction of any of them in respect of an act done ar purporting to have been done in its or his official capacity, until the expiration of two months next after notice thereof in writing hat been, in the case of a board, let at its office and, in the case of the chairman, vice-chairman, member, officer, servant or person delivered to him or left at his office or place or abode explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. (2) No action such as is described in sub-section (1) shall, unless It is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the causes of action. [2025:RJ-JP:25381] (5 of 8) [CSA-368/2000] (3) nothing in sub-section(1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponment of the commencement of the suit of the proceeding." A bare look at the sub-section (3) of Section 271 of the Municipalities Act, 1959 reveals that this sub-section carves out an exception for injunction suit without specifying its nature or class and the present suit is also for mandatory injunction seeking urgent direction to take remedial measures to remove stray animals from the main roads. Therefore, substantial questions of law No.3 and 4 so framed are answered in favour of the plaintiff.

16. Thus, there is no infirmity in the impugned judgment and decree passed by the learned Courts below.

17. From perusal of the impugned judgment and decree, it is evident impugned judgments defendant/appellant-Municipal Corporation has been simply directed to take remedial measures with regard to stray animals roaming on the main roads and further the defendant/appellant directed to remove the stray animals from the prominent roads. A bare perusal to the order of the Appellate Court, it is evident that the learned First Appellate Court has considered all the objections raised by the defendant/appellant, and also considered the findings of the learned trial Court issuewise and has given a detailed judgment while considering the objection about the maintainability of suit without serving notice under Section 271 of Rajasthan Municipalities Act, 1959.

18. Therefore, it cannot be said that the impugned judgment passed by the learned First Appellate Court is unsustainable, in [2025:RJ-JP:25381] (6 of 8) [CSA-368/2000] the eyes of the law. Accordingly, the substantial question of law No.1 is answered in favour of the plaintiff-respondent.

19. Further with regard to substantial question of law No.2 so framed, it is reflected from the record of the case that all questions so raised before the learned Appellate Court have been decided in favour of the plaintiff/respondent and while giving the judgment of concurrence, the learned Appellate Court is not required to provide a detailed reasoning or formulate the points specially when the Appellate Court has given issue wise judgment. Therefore, the substantial question of law No.2 is decided against the appellant.

20. The Hon’ble Apex Court in the matter of M.C. Mehta v. Union of India reported in (1988) 1 SCC 471 held that in common law Municipal Corporations can be restrained by an injunction in an action even brought by a person who is not a riparian owner, but someone interested in protecting the lives of people. Thus, the plaintiff/respondent is entitled to restrain the defendant/appellant-Municipal Corporation by way of granting an injunction.

21. Further, this Court has in the matter L.K. Koolwal v. State of Rajasthan reported in (1987) 1 RLR 334 held that the Constitution of India empowers and even encourages the public to move the Court for enforcement of the duties of State instrumentalities, and held as under: “Art. 51-A gives a right to the citizen to move the Court for the enforcement of the duty cast on State, agencies, departments, local bodies and statutory authorities created under the particular law of the State. It provides particularly under clause instrumentalities, [2025:RJ-JP:25381] (7 of 8) [CSA-368/2000] (g) that the State and its instrumentalities and agencies should strive to protect and prove the natural environment…………… ………The right cannot exist without a duty and it is the duty of the citizen to see that the rights which he has acquired under the Constitution as a citizen are fulfilled.”

22. In the case of Rajkot Municipal Corporation vs. Bhanuben Vrajlal Rathod & Ors. reported MANU/GJ/1467/2024, the Gujarat High Court held that the municipal corporations bear a legal duty and responsibility to manage and control stray animals and found the corporation negligent in discharging its duty after a man was fatally injured when stray buffaloes rushed towards him, causing him to fall into a deep trench left uncovered without any safety measures. In that case, a person died because of the inaction of the municipal corporation, however, in the present appeal, this Court will not wait for a casualty to occur as a precondition to compel the Municipal Corporation to discharge its statutory duty under the Rajasthan Municipalities Act, 1959.

23. Furthermore, it was also reiterated that under Section 100 of the Code of Civil Procedure, 1908 second appeals are maintainable only on substantial questions of law, and not on mere disagreement with concurrent factual findings. It also held that any aggrieved person may seek an injunction or compensation for municipal inaction posing a foreseeable threat to public safety.

24. Time and again, the Hon'ble Supreme Court has directed that the scope of second appeal would be confined to the questions of law and substantial question of law, and substantial questions of law so formulated at the time of admission of appeal [2025:RJ-JP:25381] (8 of 8) [CSA-368/2000] do not hold merit in the present facts and circumstances of the case and answered in favour of the plaintiff/respondents.

25. This Court is of the considered opinion that the local authorities have a sacrosanct duty to prevent the movement of stray animals, on the public roads, therefore, the Municipal Corporation ought to have made an effort for the same compliance with the judgment and decree dated 27.07.1995 rather than assail the same.

26. This Court refrains itself from passing any stringent direction against the person who has given the opinion to file this appeal instead of making an effort for due compliance to the judgment and decree dated 27.07.1995 because that person concerned might have got retired by now, but while dismissing their second appeal, this Court deem it fit to impose a cost of Rs.25,000/- on the appellant for wasting the judicial time of the courts. The aforesaid cost shall be deposited by the appellant with Rajasthan State Legal Services Authority (RSLSA) within three months from today and file a copy of the receipt showing the said payment. In case the cost amount is not deposited by the appellant, within the stipulated time, the Registry is directed to list the matter for necessary further orders.

27. In view of above, present second appeal lacks merit and same is hereby dismissed.

28. Any other pending application(s), if any, stands disposed of. SOURAV /10 (MANEESH SHARMA),J