Summary
A civil suit seeking declaration and protection of an existing common-drain right between neighbouring owners was maintainable. The Guwahati Municipal Corporation Act’s express jurisdictional bar concerned matters under Part VI, while the drain provisions in Part V empowered the Commissioner to create or regulate use rights and did not exclude this suit expressly or impliedly. The plaintiff’s asserted existing right required evidence at trial. The Court set aside rejection of the plaint, restored the suit and left its merits undecided.
Issues
- Whether the municipal statute expressly or impliedly excluded a civil suit protecting an asserted existing common-drain right.
- Whether the plaint was liable to rejection as barred by law.
Provisions considered
- Section 9 and Order VII Rule 11(d), Code of Civil Procedure, 1908The pleaded civil right was not barred expressly or impliedly, so rejection of the plaint was unjustified. (¶¶ 7, 8, 9, 10, 16, 18, 19)
- Section 341, Guwahati Municipal Corporation Act, 1971The express jurisdictional bar was confined to questions required to be decided under Part VI; it did not cover this common-drain dispute. (¶¶ 11, 16, 18, 19)
- Sections 246, 247 and 248, Guwahati Municipal Corporation Act, 1971The Commissioner’s powers regarding use of another owner’s drain did not exclude a civil action asserting an already-existing right. (¶¶ 12, 13, 16, 17, 18)
Held
- Civil courts retain jurisdiction over civil suits unless expressly or impliedly barred. Under Order VII Rule 11(d), the bar must appear from the plaint; the particular right claimed and statutory scheme must be examined. (¶¶ 7, 10, 11, 14, 15)
- The plaintiff alleged a drain existing along the contiguous properties’ western boundaries and sought to prevent its obstruction. He sought protection of that right, rather than creation of a new right through a drain conceded to belong to the defendant. Whether the alleged right existed depended on trial evidence. (¶¶ 8, 9, 13, 16, 17, 18)
- Sections 246–248 did not expressly or impliedly bar this declaratory inter-party suit. The summary municipal procedure and the appeal discussed by the respondent were not an adequate alternative for this particular dispute. (¶¶ 12, 13, 16, 17, 18)
- The High Court’s rejection of the plaint was set aside and the suit restored for decision on merits. The parties were directed to appear before the Munsif on 1 September 2021 without further notice; no costs were ordered. (¶¶ 19, 20, 21)
Result
Appeal allowed without costs; plaint restored to the Munsif for adjudication on merits, with appearance fixed for 1 September 2021 without further notice.