1 2025:CGHC:20999 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 560 of 2005 1 - Municipal Corporation Jagdalpur through the Commissioner, Municipal Corporation, Jagdalpur, District Bastar Chhattisgarh. ... Appellant/defendant versus 1 - Ravindra Rath, Ram Chandra Rath, Aged About 36 Years R/o Shiv Mandir Ward, Jagdalpur, District Bastar (Chhattisgarh). ... Respondent/plaintiff (Cause title taken from Case Information System) For Appellant : Mr. Sourabh Sharma, Advocate For Respondent : Mr. M.D. Sharma, Advocate (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment on Board 07/05/2025 1. Heard. 2. This second appeal has been admitted for hearing on following substantial questions of law:- “1. Whether in absence of notice under Section 319 of the Municipalities Act, the suit filed was maintainable? 2. Whether the first Appellate Court is justified in holding that the plaintiff is entitled to a shop in the new shopping complex and also entitled for a suitable alternative plot till the construction of the new complex even without claiming any relief in this regard?” 2 (For the sake of convenience, parties would be referred to as per their status shown before the trial Court.) 3. Facts of the case, as projected by appellant/defendant is that respondent/plaintiff filed a Civil Suit No.9A/2000 for perpetual / prohibitory injunction as also for mandatory injunction for renewal of lease in his favour stating, inter alia, that the disputed shop admeasuring 15x10 ft. was let out to the plaintiff on 22.04.1989 by the defendant for 10 years, lease agreement was also executed. After completion of 10 years, though plaintiff continued to pay rent as agreed, but renewal of lease was not made, whereas enhancement of 15 per cent rate was insisted upon but lease has not been renewed, which the defendant is bound to do. Since lease period was completed, therefore, notice dated 17.12.2000 was sent to the plaintiff for vacating the suit shop, which leading to filing of the instant civil suit. 4. The defendant filed its written statement opposing the pleadings made in the plaint. It was pleading of defendant that the lease as per agreement has already expired on 22.04.1999 and no renewal has been made and since Municipal Council, Jagdalpur wanted to construct new shops at the said place where the shop is situated, therefore, all tenants including the respondent/plaintiff are required to vacate the suit premises, as such, plaintiff has also been served with the notice to vacate the suit shop as of other tenants. 5. On the basis of pleadings of the parties, learned trial Court framed as many as four issues, recorded the evidence adduced by the parties and after considering the same, vide impugned judgment and decree dated 02.09.2004, dismissed the suit of the plaintiff. 3 6. Being aggrieved by the judgment dated 02.09.2004 passed by the trial Court, plaintiff filed First Appeal No.23A/2004, in which, learned First Appellate Court vide judgment and decree dated 11.11.2005, allowed the appeal and granted relief to the plaintiff, even otherwise not claimed by him in his civil suit, as such, defendant filed instant second appeal. 7. Learned counsel for the appellant would submit that plaintiff had filed civil suit for perpetual injunction and mandatory injunction, but no mandatory notice under Section 319 of the Chhattisgarh Municipalities Act, 1961 (henceforth referred to as “the Act, 1961”) was served to the defendant, therefore, the civil suit deserves to be dismissed on this count alone. In this regard, he place reliance in the case of Nagar Palika Parishad, Pathalgaon & Ors. vs. Lakhiram Agrawal & Anr. reported in (2015) 5 C.G.L.J. 610. He would further submit that though plea with regard to non-compliance of mandatory provision under Section 319 of the Act, 1961 was not raised before the trial Court or the First Appellate Court, despite that, legal issued can be raised even in second appeal. Further, Co-ordinate Bench of this Court in the case of Bhagwan Das and Anr. vs. Municipal Corporation, Durg and Anr. (in S.A. No.81/2014), relying in the case of Uttar Pradesh Avas Evam Vikas Parishad and Others vs. Om Prakash Sharma reported in 2013 (5) SCC 182, has held that, defendants are entitled to raise the plea of non-issuance / non-serving of statutory notice under Section 80 (1) of the CPC and Section 401 (1) of the Act of 1956 (pari materia to Section 319 of the Act, 1961) at the stage of second appeal. It has further been held that suit substituted by the plaintiffs against the State Government and Municipal Corporation in respect of official act, without issuing / serving statutory notice in terms of Section 80 (1) of the CPC 4 and Section 401 (1) of the Act of 1956 respectively, suit is not maintainable in law and plaintiffs’ plea of waiver of such a plea is unacceptable. 7.1. He further submitted that in civil suit, plaintiff had not sought relief for shifting of his shop in alternative place till construction of new shops and after construction of new shops, a shop be allotted to him, despite that, learned First Appellate Court has granted such relief. Learned counsel would further submit that since shops allotted to the plaintiff and other tenants situated at old bus stand, Jagdalpur were in dilapidated condition, therefore, Municipal Council Jagdalpur intended to construct new shops by demolishing old one, therefore, tenants of shops were given notice to vacate the shops and after construction of new shops, cost of construction of new shops depending upon the size shall be born by the tenants and new agreement with regard to tenancy shall be executed. Similar notice was also given to the plaintiff, but he did not agree to vacate the shop, therefore, disputed shop is still in pristine condition. He further submitted that, after framing of questions of law, respondent/plaintiff has filed amendment application under Order 6 Rule 17 of the Civil Procedure Code (for short “CPC”) along with application under 41 Rule 27 of the CPC seeking amendment in the pleading with regard to relief, which has been granted by the First Appellate Court, but such amendment can never be permitted at second appeal stage. He would further submit that new constructed shops have been allotted to the tenants, who have paid cost of construction of shops and executed rent agreement with the Municipal Council, as such, documents filed by the respondent/plaintiff along with application under Order 41 Rule 27 are also not much relevance to 5 decide the instant appeal, hence, both the applications are deserve to be rejected. 7.2. Learned counsel lastly submitted that removal of the respondent/plaintiff alone was not proposed, rather, all the tenants were served notice for their removal, as Municipal Council wanted to construct new shops and the same has been constructed also, but plaintiff did not accept the proposal and yet enjoying disputed shop without renewal of tenancy agreement and learned First Appellate Court granted relief, which has not been sought for by the plaintiff in civil suit, hence, he prays that instant appeal may be allowed and the impugned judgment and decree dated 11.11.2005 passed by the 3rd Additional District Judge, Bastar at Jagdalpur (C.G.) in Civil Appeal No. 23A/2004 may be set aside. 8. Per contra, learned counsel appearing for the plaintiff/respondent conceded the contention of learned counsel for the appellant that, if civil suit is filed only seeking relief under Section 38 of the Specific Relief Act, 1963 (henceforth referred to as “the Act, 1963”), then, mandatory compliance of Section 319 of the Act, 1961 is not required. But, he would further submit that its compliance is not required if other relief under Section 39 is sought for with the relief of perpetual/prohibitory injunction, as has been sought for in instant case. He further submitted that objection with regard to non-compliance of provision of Section 319 of the Act, 1961 was not raised by defendant/appellant neither before the trial Court nor before the First Appellate Court and even also in instant second appeal memo, as such, it amounts to its waiver. In this regard, he placed reliance in the case of Municipal Council, Khurai vs. Agricultural Produce 6 Marketing Committee, Khurai, District Sagar reported in 1968 M.P.L.J. 286. Learned counsel further submits that even in second appeal stage under the provisions of Order 7 Rule 7 of the CPC, relief can be amended, therefore, he prays that amendment application and application under Order 41 Rule 27 filed by plaintiff /respondent herein may be allowed in the interest of justice and relief granted by the First Appellate Court may be upheld by dismissing the instant appeal. In this regard, he relied in the case of Rameshwar & Ors. vs. Jot Ram and Ors. reported in AIR 1976 SC 49. 9. I have heard learned counsel for the parties and perused the material available on record along with records of the trial Court as well as the First Appellate Court. 10. Civil Suit was filed by the plaintiff against the Municipal Council, Jagdalpur seeking relief of perpetual injunction by restraining defendant to cause any hindrance in use of disputed shop by the plaintiff and also for mandatory injunction directing defendant for renewal of rent agreement in favour of the plaintiff. 11. In order to decide first question of law, as to whether the suit was not maintainable in absence of service of notice under Section 319 of the Act, 1961. Section 319 of the Act, 1961 reads thus:- “319. Bar of suit in absence of notice- (1) No suit shall be instituted against any Council or any Councilor, officer or servant thereof or any person acting under the direction of any such Council, Councilor, Officer or servant for anything done or purporting to be done under this Act, until the expiration of two months next after a notice, in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a Council delivered or left at its office, and, in the case of any 7 such member, officer, servant or person as aforesaid, delivered to him or left at his office or usual place of abode; and the plaint shall contain a statement that such notice has been delivered or left. (2) Every such suit shall be dismissed unless it is instituted within eight months from the date of the accrual of the alleged cause of action. (3) Nothing in this section shall be deemed to apply to any suit instituted under Section 54 of the Specific Relief Act, 1877 (1 of 1877)." 12. Sub-Section (1) of the aforesaid provision, on its plain reading bars institution of suit against the Municipality or its Councilor, Officer or any other person acting under the direction of such authority for anything done or purporting to be done until expiration of two months next after a notice, in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims has been given in the name of prescribed therein. Sub-section (2) of Section 319 of the Act of 1961 provides for dismissal of the suit unless it is instituted within the time stipulated therein. Sub-section (3) of Section 319 of the aforesaid provision carves out an exception under which no notice would be required. The only exception is that notice would not be necessary in a case where suit is instituted under Section 54 of the Specific Relief Act, 1877. 13. Provision contained in Section 319 of the Act of 1961 is couched in negative words and operates as bar to institution of suit except in the manner prescribed therein i.e. only after giving a notice to the party in the manner prescribed under the provision itself. In order to come out of the rigor of said provision, one has to establish that it was 8 a suit for mere perpetual injunction as contemplated in Section 54 of the Specific Relief Act of 1961, now Section 38 of the Specific Relief Act, 1963, which repealed the old Act. 14. Perusal of pleading of plaint filed by the plaintiff /respondent herein and relief sought for by him, show that by filing civil suit, plaintiff had sought perpetual /prohibitory injunction to the effect that defendant be restrained to cause any hindrance in use of suit shop by the plaintiff and mandatory injunction was sought to the effect that the defendant be directed to renew the tenancy agreement. The plaint averments and relief sought for, show that the same is only for continuation of tenancy of the shop by the plaintiff. He also sought for mandatory injunction for renewal of tenancy agreement, as such, it cannot be said that the suit was filed only seeking relief under Section 38 of the Act, 1963, rather, it is evidently clear that it was filed under Section 39 for mandatory injunction also. 15. The legal position that if suit is not merely for grant of perpetual injunction but also for other relief, then, bar of the nature as contemplated under Section 319 of the Act, 1961 would be attracted is no longer res-integra in view of the judgment in the case of Nagar Palika Parishad, Mihona and Anr. vs. Ramnath and Anr. reported in 2014 (6) SCC 394, in which, a decree for title and perpetual injunction was sought for against the municipality situated in the State of Madhya Pradesh, where the same act, which is applicable in the present case was applicable. Section 319 came up for consideration before the Hon’ble Supreme Court. After examining the statutory scheme of the Act, 1961 and the provision of Section 38 of the Specific Relief Act, 1877 (henceforth referred to as “the Act, 1877”), it was held as under :- 9 “6. Section 319 of the 1961 Act bars suits in absence of notice and reads as follows: “319. Bar of suit in absence of notice- (1) No suit shall be instituted against any Council or any Councilor, officer or servant thereof or any person acting under the direction of any such Council, Councilor, Officer or servant for anything done or purporting to be done under this Act, until the expiration of two months next after a notice, in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a Council delivered or left at its office, and, in the case of any such member, officer, servant or person as aforesaid, delivered to him or left at his office or usual place of abode; and the plaint shall contain a statement that such notice has been delivered or left. (2) Every such suit shall be dismissed unless it is instituted within eight months from the date of the accrual of the alleged cause of action. (3) Nothing in this section shall be deemed to apply to any suit instituted under Section 54 of the Specific Relief Act, 1877 (1 of 1877)." ” 16. Plaintiff / respondent herein filed civil suit seeking relief for perpetual injunction and mandatory injunction. In view of bar of filing such suit in absence of notice under Section 319 of the Act, 1961, the suit was not maintainable. Contention raised by learned counsel for the respondents herein that, if mandatory injunction under Section 39 of the Act, 1963 is sought for along with perpetual injunction under Section 38 of the Act, 1963, then compliance of Section 319 of the Act, 1961 is not required, is found to be misconceived as second relief sought for by plaintiff, to direct defendant for renewal of tenancy agreement in favour of plaintiff is completely distinct relief and even it is 10 not a ancillary to the main relief. 17. Since terms of Section 319 is mandatory in nature, therefore, in view of above discussion and in the considered opinion of this Court, case law of Municipal Council, Khurai (supra) relied upon by learned counsel for respondent is not helpful in fact situation of instant case. 18. Thus since, statutory compliance of the Section 319 of the Act, 1961 has not been done by the plaintiff / respondent prior to filing civil suit, as such, civil suit filed by him was not maintainable and ought to have dismissed on this ground alone. 19. As has been stated in preceding paragraph that civil suit was filed by plaintiff seeking perpetual injunction for restraining defendant to create hindrance in use of disputed shop by the plaintiff as well as for mandatory injunction to direct respondent for renewal of tenancy agreement in favour of plaintiff, but without seeking relief, learned First Appellate Court expanded the pleading and relief of the plaintiff and granted him extraordinary relief apart from perpetual injunction, that, if defendant wanted to construct new shopping complex by demolishing the disputed shop, then he shall provide alternative shop to the plaintiff till construction of the new shops and thereafter, tenancy agreement shall be executed with the consent of both the parties and thereafter, newly constructed shops shall be allotted to the plaintiff. 20. 20. It is settled position of law that decision cannot go beyond the pleading of the parties and substantive relief, which has not been sought for by the plaintiff, cannot be granted, as has been granted by the First Appellate Court, which is found to be illegal, hence, the same is not sustainable. 21. As per the defendant, he wanted to demolish the old shops and 11 constructs new shops, therefore, proposal was made to the tenants that, cost of construction shall be born by the allottees upon the size of shop and after execution of new agreement, shop shall be allotted. Similar proposal was also extended to the plaintiff, which is also evident from Annexure-A/1 filed by defendant /appellant herein along with reply to the application filed by plaintiff under Order 6 Rule 17 of the CPC before this Court. It was also evident from the written statement filed by defendant / appellant herein that similar proposal was made to the appellant, which was not accepted by him, rather, he filed civil suit, which shows his arrogant attitude, because if other tenants have accepted the proposal of the defendant -municipality and as contended by learned counsel for the appellant that, after construction of new shops, cost of construction has been born by the various allottees and they have deposited sum of Rs. 4,00,000/- and more depending upon the size of shop after execution of rent agreement, they have allotted shop. But this option was not availed by plaintiff himself and chose litigation. It seems that plaintiff was overwhelmed by getting unclaimed relief granted by the First Appellate Court, which is completely perverse and illegal, as the same has been granted without any pleading. The Hon’ble Apex Court in the case of Bachhaj Nahar vs. Nilima Mandal and Ors. reported in AIR 2009 Supreme Court 1103 has held in para 16 as under:- “16. ………….. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of 12 action or parties etc., which require pleading and proof. ………... The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.” Therefore, granting relief by the First Appellate Court, which has not been sought for by the plaintiff in his plaint, is found to be perverse and illegal, hence the same deserves to be set aside. 22. In view of above discussion, I.A. No.01/2019, application for amendment of plaint under Order 6 Rule 17 read with Section 151 of the CPC and I.A. No.02/2019, application filed under Order 41 Rule 27 of the CPC are rejected. 23. In view of above discussion, I feel inclined to allow instant appeal. As such, both the questions of law as formulated are answered in favour of the appellant / defendant and against the respondent / plaintiff. 24. Accordingly, this appeal is allowed. The impugned judgment and decree dated 11.11.2005 passed by the 3rd Additional District Judge, Bastar at Jagdalpur (C.G.) in Civil Appeal No.23A/2004 is set aside and the judgment and decree dated 02.09.2004 passed by the trial Court in Civil Suit No.9A/2000 is affirmed. 25. The decree be drawn accordingly. 26. The parties to bear their own cost. Sd/- (Naresh Kumar Chandravanshi) JUDGE Rukhsar RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.05.14 10:41:36 +0530