GUWAHATI, India, March 19 -- Gauhati High Court issued the following order on March 17:
1. Heard Ms. R. Choudhury, learned counsel for the appellant. Also heard Mr. R. Chakraborty, learned counsel for the respondents No. 2, 3 and 8 and Mr. A. Kakati, learned counsel for the respondent No.1 as well as Mr. T.R. Gogoi, learned counsel appearing for the respondents No. 4, 5 and 7.
2. This appeal under Section 96 read with Order XLI Rule 1 & 2 of the Code of Civil Procedure, 1908 has been filed by the appellant Sri Kushal Mech, impugning the order dated 27.02.2023 passed by the Court of learned Civil Judge, Dibrugarh in Title Suit No. 19/2023, whereby, the plaint filed by the present appellant, as plaintiff, in the aforesaid Title Suit, was rejected as the mandatory provision of Section 60 of the Assam Town and Country Planning Act, 1959 was not complied with.
3. Ms. R. Choudhury, the learned counsel for the appellant has submitted that the present appellant as plaintiff had filed a suit against the present respondents before the Court of learned Civil Judge at Dibrugarh which was registered as TS No. 19/2023. She submits that the plaintiff has claimed to be the owner of a plot of land described in Schedule A, B and C to the plaint. She further submits that the private respondents No. 1 and 2 have fraudulently obtained fake sale deed and thereafter mutated their names in respect of the aforesaid land, therefore, the present appellant had prayed for relief of cancellation of relevant sale deeds and cancellation of mutation orders by which, the names of the respondents was mutated in respect of the aforesaid land of the plaintiffs. Apart from the aforesaid relief, the present appellant had also prayed for relief of permanent injunction for restraining the present respondents No. 1, 2 and 3 from disturbing the peaceful possession of the appellant over the suit land. She submits that since there was urgency in the case and since the government officials have been made defendants in the plaint, the plaintiff had prayed for leave to file suit without issuing notice under Section 80 of the Code of Civil Procedure, 1908. She further submits that the said leave, under Section 80(2) of the Code of Civil Procedure, 1908, was granted by the trial Court by its order dated 13.02.2023.
4. Learned counsel for the appellant further submits that on 13.02.2023, the trial Court issued notice to the defendant in the aforesaid suit, fixing 24.03.2023 for service report and filing of the written statement. However, before that date, i.e., on 16.02.2023 the respondents No. 1 to 3 (the defendant No. 1 to 3 in the aforesaid suit) had filed a petition, which was registered as Petition No.799/2023, where question of maintainability was raised on the ground of non-serving of notice to the government under Section 80 of the Code of Civil Procedure, 1908 as well as non-serving of notice to defendant No.6 under Section 60 of the Assam Town and Country Planning Act, 1959.
5. The learned counsel for the appellant submits that the trial Court without taking into consideration that the summons issued to respondent No.6 i.e., the Chairperson of Dibrugarh Development Authority, Dibrugarh were yet to return to the trial Court. However, without waiting for the result of the service of summons upon the said respondents, the trial Court by the impugned order dated 27.02.2023, held that the suit is barred due to non-compliance of mandatory provision of Section 60 of the Assam Town and Country Planning Act, 1959 and rejected the suit. She submits that in case of other government officials, the present appellant as plaintiff had obtained leave of the Court under Section 80(2) of the Code of Civil Procedure, 1908.
*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=tuqye3PhFs%2BBDn75ghiOpCHRh6EmzCSyiRPVt6t5WBvBCynl0sSfrzFAretJsoAA&caseno=RFA/12/2023&cCode=1&cino=GAHC010072042023&state_code=6&appFlag=)
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