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Lallan Prasad v. Nagar Maha Palika - SECOND APPEAL No. 753 of 1975 [2007] RD-AH 8272 (2 May 2007)


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Court No.19

Second Appeal No. 753 of 1975

Sri Lallan Prasad


Nagar Mahapalika, Kanpur & Anr.


Hon. Dilip Gupta, J.

The plaintiff has filed this Second Appeal for setting aside the judgment and decree of the Appellate Court by which the Appeal was dismissed.

The plaintiff had filed a Suit for permanent injunction for restraining the defendants from demolishing or removing or interfering with the plaintiff's possession of the shop. The plaintiff alleged that he was the sole tenant of the shop since 1964 at a monthly rate of Rs.40/-; that Smt. Maiki Devi was the landlady and the owner of the said disputed shop and she had constructed the said shop and as such the defendants or their servants, agents, employees or officers had no right to remove or demolish the disputed shop without any notice or information. The case set up by the defendants was that the plaintiff had illegally and in an unauthorised manner constructed a room without the permission or approval of the defendants and that in fact no threat was given by the defendants and as such the suit was pre-mature.

The Trial Court held that the disputed shop had been illegally constructed by the plaintiff on the land of defendant no.1 Nagar Mahapalika, Kanpur and so the defendants were entitled to demolish the disputed shop and remove the encroachment. The Trial Court further recorded a finding that the plaintiff had no cause of action and the suit was pre-mature. The Appellate Court, however, recorded a finding that the plaintiff had proved that he was the tenant of Smt. Maiki Devi since 1964 but it dismissed the Appeal on the ground that the suit was pre-mature as there was nothing on the record to indicate that the Nagar Mahapalika extended threat to the plaintiff to demolish the shop.

Learned counsel for the appellant submitted that a pre-mature suit could not always be dismissed and in support of his contention he has placed reliance on the decisions of the Supreme Court in the case of Vithalbhai (P) Ltd. Vs. Union Bank of India, 2005 All. C.J. 1363. In this case the Supreme Court held that a suit based on a plaint which discloses a cause of action is not necessarily to be dismissed on trial solely because it was pre-mature on the date of its institution if by the time the written statement came to be filed or by the time the Court is called upon to pass a decree, the plaintiff was entitled to the relief prayed for in the plaint.

In the present case there is nothing on the record to indicate that when the written statement was filed and when the Court was called upon to pass a decree, the plaintiff was entitled to the relief claimed for. In fact, in the written statement, the defendants had come out with a clear case that no threat had been given by them to the plaintiff.

In view of the aforesaid, there is no infirmity in the judgment of the Court below dismissing the suit as pre-mature.

The Second Appeal is, accordingly, dismissed.

Date: 2.5.2007



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