Order 7 rule 11 and 13 cpc
Shantilal Pandya
(Querist) 27 July 2013
This query is : Resolved
Dear experts,
Please offer your valuable opinions on the questions stated below.
A suit is filed for a declaration of ownership of the suit property and injunction against demolition by the Pnchayat ( A local authority) on the ground that some of the superstructure on the land in question is an encroachment on the public land ,the suit was filed without serving a statuary notice to the Panchayat ,how ever it was claimed in the suit inter alia that the notice was not required to be given as the action of the Panchayt issuing notice for demolition was illegal and also that the notice was vague as it did not contain the measurement of the alleged encroachment, the suit is dismissed by the court for want of such statuary notice only on preliminary issue decided against the plaintiff
in the circumstances what is the appropriate remedy for the plaintiff?
1 To file a second suit after serving notice?
2.to file an appeal against the dismissal?
3 any other proceeding to be resorted to?
Mentioning of the citations for and against the opinion will be appreciated.
Thanks.
prabhakar singh
(Expert) 27 July 2013
1.Exercising 1st option would be best as exercising 2.option would fetch the same result and that there is no 3.third alternative known to me.
Guest
(Expert) 27 July 2013
Statutory notice under which section? If you are talking about notice u/s 80, a question arises, whether a panchayat falls within the scope of sec. 2(17) of CPC?
prabhakar singh
(Expert) 27 July 2013
Dhingra Ji almost all states have their own
Panchayati raj enactments where suit has to be filed after two months notice but well not after six months from the service,and similar provisions are found in municipalities Acts also.
Section 80C.P.C has been getting amendments required from time to time and courts have been given liberty to exempt from the burden of service of notice in cases of urgent relief matters but state laws are still intact then all of us are bound by them as they are.
Guest
(Expert) 27 July 2013
Prabhakar ji,
I agree with you in principle, but what prevents us to contest on that point in the court and make the other party prove his point by virtue of provisions of law of that state? Once a case is launched, we should not take everything as granted unless the court interprets the doubtful or hidden aspects of law in favour or disfavour of any party after due arguments from both the sides.
prabhakar singh
(Expert) 27 July 2013
Dhingra Ji !
These are technical disabilities of a suit which prevent court in entering merit of the case.
R.K Nanda
(Expert) 27 July 2013
1.no
2.yes, in higher court.
3.none
prabhakar singh
(Expert) 27 July 2013
I can not understand benefit of filling any appeal when plaintiff admits "the suit was filed without serving a statutory notice to the Panchayat"so unless there is exemption clause in the Act it self the argument that
"how ever it was claimed in the suit inter alia that the notice was not required to be given as the action of the Panchayat issuing notice for demolition was illegal and also that the notice was vague as it did not contain the measurement of the alleged encroachment,"WOULD NOT BE ENTERTAINED BY ANY COURT.
Hence any idea of appeal is a void conceptualisation of a remedy.
It is also not clear how can an appeal be advised to be filed before high court without knowledge of valuation of suit and the fact whom before the suit was filled.
Raj Kumar Makkad
(Expert) 27 July 2013
No more to add as the subject has widely been discussed.
