JUDGMENT
D.K. Seth, J.
1. In exercise of power under Section 400 Sub-section (8) of the Calcutta Municipal Corporation Act, 1980, a portion of the building was demolished on the ground of undertaking unauthorized construction. Challenging this action, the plaintiff appellant had filed a suit against the Corporation contending that the Municipality be restrained from demolishing other portion of the building and had assailed the action taken under Section 400 Sub-Section (8) of the Act on the ground that it had breached the provisions contained in the sub-section itself. In the plaint, it has been averred that the property was purchased by the plaintiffs and his sister having moiety share. The learned Trial Court had dismissed the suit. The non-joinder of the sister in the suit is one of the grounds on which relief was denied. The second ground was that the date and particulars of the order passed under Section 400 Sub-section (8) was not available from the pleading amounting to vagueness. The other ground is that the suit is otherwise barred under the provisions of the Act.
2. While supporting and opposing the application for injunction, both the learned Counsel had addressed the Court on merit of the appeal. We, therefore, propose to dispose of the appeal and application together. By consent of the parties, the appeal is treated as on day’s list for hearing. The appeal and the application are disposed of as hereafter.
Appellant’s submission:
3. Mr. Arindam Banerjee, learned Advocate for the appellant, points out that non-joinder of parties would not be fatal since the interest of the sister was being represented on the concept that both plaintiff and his sister were entitled to, each particle of the property and that his sister had implicitly and impliedly consented to the representation of the estate by him since she did not raise any objection. On the question of bar of suit, he had pointed out that the principle is an accepted and settled proposition of law that when there is a prohibition from invoking the Civil Court’s jurisdiction, the same does not exclude the Civil Court’s jurisdiction altogether. It may prevent the Civil Court from questioning the justification or the validity of the order on merit but it does not take away the jurisdiction of the Civil Court to look into and examine the scope as to whether the jurisdiction, the action whereof is barred, was properly, validly and bona fide exercised without any breach of the provision. According to him, in this case the recording of the reasons in writing, which is mandatory under Sub-section (8) of Section 400, had been infringed in the absence of any service of notice upon him and despite having admitted in the written statement the Corporation never referred to the particulars of the order nor disclosed the said order nor had produced anything to show the order before the Court and as such an adverse presumption was to be drawn with regard to breach and infringement of the process for exercising power under Sub-section (8) of Section 400. His alternative argument was that no appeal is provided for under Sub-section (3) of Section 400, which does not include an appeal from an action taken under Sub-section (8) of Section 400 despite Section 415, inasmuch as this provision does not provide for appeal against such an order.
Respondents’ submission: ‘
4. Mr. Roy, learned Advocate for the Corporation, on the other hand, pointed out that the question of representation of estate is something different as was claimed in the present context of the suit. It was a right in respect of the property, which was to be exercised by the owner who cannot be treated to be common but joint. That apart, the Order 1 Rule 9 of the Civil Procedure Code (CPC) applies in case of a necessary party. According to him, the sister of the plaintiff was a necessary party. Therefore, the suit cannot be maintained. Secondly, he contends that the question of adverse presumption can arise against a person upon whom the burden to prove a particular fact lies or who is called upon to admit a particular fact or who is called upon to produce a particular document. According to him, the burden lay upon the plaintiff to establish his case and until he had initially discharged his onus the burden would not shift on the Corporation since the Corporation’s case would not fail if the fact was not proved. Therefore, until the plaintiff called upon the Corporation for production of the documents, no adverse presumption could not be drawn as against the Corporation. Without such adverse presumption, there could not be any question of presumption of breach or infringement in the course of action taken under Section 400 Sub-section (8). The Court could not entertain the suit by reason of the prohibition contained in the Act particularly in Sub-section (5) of Section 400. He also contends that appeal lies against an order passed under Sub-section (8) of Section 400, in view of the Section 415, which refers to Section 400 and matters related thereto including Sub-section (8), even though such appeal cannot be contemplated within Sub-section (5) of Section 400. Though, however, it does not substantiate such a proposition because of incorporation of sub-section (3) before Sub-section (8). According to him, the exercise of power under Sub-section (8) is in addition to those under Sub-section (1). The power under Sub-section (8) cannot be exercised independent of the provisions contained in Sub-section (1) in respect of which reasons are to be recorded in writing which are reasons within the meaning of Sub-section (1). On these grounds the appeal should be dismissed.
5. Mr. Banerjee had cited a few decisions to support his contentions. We shall refer to the same at appropriate stage. Mr. Roy had attempted to distinguish each of these decisions. We shall refer to his submissions when necessary.
Facts:
6. The facts are more or less admitted. A portion of the building was demolished by the Corporation. In its written statement, the Corporation had taken shelter of an order passed under Section 400 Sub-section (8) without disclosing the particulars of the order itself. The plaintiff has also never called upon the Corporation to produce the said order. At the same time, within the pleadings, no particulars of the order have been mentioned. It is also an admitted position that the sister of the plaintiff was owner of the undivided half share in the property. She was not made a party either as co-plaintiff or as defendant. At the same time, there was no objection on record alleged to have been raised by the sister.
Burden of proof:
7. Burden of proof lies on (i) the person who desires the Court to give judgment as to any legal right or liability dependent on the existence of the fact he alleges (Section 101 Evidence Act); (ii) who fails if no evidence at all were given on either side (Section 102); (iii) who wishes the Court to believe any particular fact, unless law provides that proof of such fact lies on any particular person (Section 103); and (iv) who wishes to give evidence (Section 104).
Adverse presumption : When can be presumed:
8. Admittedly, the question of adverse presumption under Section 114(g) of the Evidence Act can be drawn against a person upon whom the burden lies or who is called upon to disclose a document, if such document is withheld. In this case, admittedly, the Corporation was never called upon to produce the documents. At the same time it was the plaintiff who had to discharge his burden and only when the onus shifted, then the principle of adverse presumption could arise. In this case, allegedly, no order under Sub-section (8) was ever served upon the plaintiff. Therefore, it was not possible either to disclose the date of the order or to mention the particulars thereof in the pleadings or prove the document. But as soon it was disclosed in the written statement that such action was taken under Section 400 Sub-section (8) on the part of the Corporation, the presumption of correctness of such official action was available under Section 114(e) Evidence Act, unless proved otherwise. This can be proved by evidence through production of the order or the records. The plaintiff desired the Court to give judgment as to the fact that the action taken by the Corporation under Section 400 was not correctly taken, and it would be the plaintiff who would fail if that evidence/document was not given or not produced, it was the plaintiff who wished the Court to believe the existence of the fact that the official action having presumption of correctness under Section 114(e) was not validly/correctly taken, and it was he, the plaintiff, who would have wished to give evidence. Therefore, the burden lay on the plaintiff. He could discharge it if he had called for production of the order/record by the Corporation.
8.1. Reliance was placed on Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors., where it was held that Section 114(g) and Section 103 of the Evidence Act would not be attracted until a party was called upon to produce it. The principle would be applicable in a case where the burden or onus lies on the party only upon being called upon to produce. Though the Corporation had passed such an order but they were not liable to produce the same unless called upon to do so. The burden lay upon the plaintiff to prove his case. The plaintiff could discharge the burden not only by giving evidence but also by calling for the documents to prove his contention. Admittedly, there was no attempt on the part of the plaintiff to call upon the Corporation for the production of the order/record. Therefore, no adverse presumption could be drawn upon against the Corporation in this case.
Scope or jurisdiction:
9. In this case the documents were not produced. It was just not possible to know whether there was infringement or breach of the provisions contained in Sub-section (8) of Section 400. Since such materials were not before the Court, the Court could not examine as to whether the action taken under Section 400 was within the scope and ambit of the jurisdiction conferred upon the Commissioner in order to bring the case within the accepted proposition on which the Civil Court could still entertain a suit despite prohibition of jurisdiction. Therefore, the decision cited by Mr. Banerjee in Dhulabhai etc. v. State of Madhya Pradesh, laying down the principles as indicated in paragraphs 32 and 35 cannot be attracted. Similarly, the principles laid down in State of Tamil Nadu v. Ramlinga Samigal Madam, following the case of Dhulabhai etc. (supra) also cannot apply.
Misjoinder of parties:
10. The question of misjoinder of parties as has been raised by Mr. Roy, seems to be of substance, inasmuch as the sister having half share was not only a proper but a necessary party. Here there was no question of representation of the estate implicitly or impliedly within the meaning of Order 1 Rule 9 CPC in the absence of a necessary party. The principle enunciated in was a case where the State was represented. But this principle has to be applied in the circumstances of the case. If any interest is preserved that will enure to the benefit of the sister. The benefit would not in any way be adverse to her. In such a case the estate is deemed to have been represented implicitly or impliedly in the absence of any objection when the interest of other co-sharer is protected and is not affected adversely. But there is no material whether the sister would be adversely affected or not. An unauthorized construction definitely affects the property. It is question of fact about which no presumption could be drawn. Therefore, it is doubtful as to whether the principle of implied representation as held in Kanta Goel (supra) could be applicable. Therefore, we are unable to hold that the suit was not bad for non-joinder of the parties and the principle of Order 1 Rule 9 could be applied.
Defect in prayer:
11. Mr. Banerjee had relied on a decision in Vohara Abbasali Mohamadalli Lakhawala v. State of Gujarat, to contend that the defect in the prayer would not debar the appellant from obtaining the relief and if Court desires the Court may mould the prayer to grant appropriate relief. The principle is an accepted proposition of law. Order 7 Rule 7 Civil Procedure Code empowers the Court to mould the prayer if there are materials on which the prayer could be so moulded. In the absence of disclosure of any material in this case, it was just not possible to mould the prayer in order to suit justice. Therefore, the principle enunciated in the decision in Vohara Abbasali (supra) has no manner of application in the present case.
11.1. Mr. Banerjee had relied on a decision in Firm Sriniwas Ramkumar v. Mahabir Prasad and Ors., also on the question with regard to the difference in the pleading and the prayer. The same also does not help Mr. Banerjee in the present context.
Conclusion:
12. It appears that the action had already been taken under Section 400 Sub-section (8) and the action was over. It was not contended by the Corporation that they would be taking any further action on the basis of the order. It did not appear that any further action had been taken or was proposed to be taken.
12.1. Therefore, further action having not been taken, there was no scope for further injunction. Thus, there was no scope for granting any relief in the suit. At the same time, if the Corporation now propose to take further action Asstt. Collector of Cenl. Excise, Cal. v. Bata Shoe Co. (A. K. Banerjee, JJ.) 573 under Section 400 Sub-section (8), in that event, it can do so only if there are grounds satisfying the conditions of Sub-section (1) of Section 400 and that too only after complying with the provisions contained therein and such action then would give rise to a fresh cause of action and that can be challenged within the scope and ambit of the jurisdiction of the Civil Court, as the case may be, despite bar of its jurisdiction within the breach and infringement of the procedure for exercise of such jurisdiction despite Sub-section (5) but then the Corporation cannot be restrained from taking such action under Section 400 Sub-section (8) within the jurisdiction conferred upon it, provided there is grounds available under Sub-section (1). Since the Corporation had not produced the documents and did not propose to take further action, therefore, it neither could nor can take any action on the basis of the same order. But unless there are ingredients, which can satisfy Sub-section (1) of Section 400, the Corporation cannot exercise power under Sub-section (8) of Section 400 in respect of the construction where it was alleged that no construction was being undertaken except repairs, which did not require any sanction.
Order:
13. In the circumstances, we do not find any merit in this appeal. The appeal is, therefore, dismissed.
13.1. There will, however, be no order as to costs.
14. Xerox certified copy of this order be supplied to the learned Counsel for the parties, if applied, within 7 days.
R. N. Sinha, J.
15. I agree.
