Bombay High Court
Mukesh Mahadev Vaze And Ors vs Nandkumar Rajaram Kadam And Ors on 25 October, 2023
Bench: Amit Borkar
2023:BHC-AS:32185
26-cra585-2022.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.585 OF 2022
VAIBHAV Mukesh Mahadev Vaze & Ors. ... Applicants
RAMESH
JADHAV
Digitally signed by
V/s.
VAIBHAV
RAMESH JADHAV
Date: 2023.10.26
14:25:14 +0530 Dhananjay Vishnu Jadhav & Ors. ... Respondents
WITH
CIVIL REVISION APPLICATION NO.586 OF 2022
Mukesh Mahadev Vaze & Ors. ... Applicants
V/s.
Shamrao Pandurang Waghmode & Ors. ... Respondents
WITH
CIVIL REVISION APPLICATION NO.587 OF 2022
Mukesh Mahadev Vaze & Ors. ... Applicants
V/s.
Suresh Maruti Honmane & Ors. ... Respondents
WITH
CIVIL REVISION APPLICATION NO.588 OF 2022
Mukesh Mahadev Vaze & Ors. ... Applicants
V/s.
Ravindra Krushna Kadam & Ors. ... Respondents
WITH
CIVIL REVISION APPLICATION NO.589 OF 2022
Mukesh Mahadev Vaze & Ors. ... Applicants
V/s.
Nandkumar Rajaram Kadam & Ors. ... Respondents
WITH
CIVIL REVISION APPLICATION NO.590 OF 2022
1
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26-cra585-2022.doc
Mukesh Mahadev Vaze & Ors. ... Applicants
V/s.
Pandurang Govind Waghmode & Ors. ... Respondents
WITH
CIVIL REVISION APPLICATION NO.591 OF 2022
Mukesh Mahadev Vaze & Ors. ... Applicants
V/s.
Ravindra Bapu Patil & Ors. ... Respondents
WITH
CIVIL REVISION APPLICATION NO.616 OF 2022
Mukesh Mahadev Vaze & Ors. ... Applicants
V/s.
Shalan Prakash Mokashi & Ors. ... Respondents
Mr. Kuldeep U. Nikam for the applicants.
Mr. Satish Kumbhar with Mr. Karan Singh Bhadoria
with Mr. Abhinandan Vagyani i/by Ms. Deepa A.
Vagyani for respondent No.1.
Ms. Tanaya Goswami, AGP for the State.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 25, 2023
P.C.:
1. Since the issue involved in all these revision applications is
common, all revision applications are being decided by common
judgment.
2. The respondent No.1 filed civil suit before the Civil Judge,
Junior Division, Sangli seeking a declaration that the action
of respondent corporation declaring a suit property as
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dilapidated is in collusion with defendant Nos.3 to 6. The
consequential injunction restraining defendant Nos.1 and 2 i.e.
Municipal Corporation is also sought. However, injunction
restraining defendants from disturbing possession of the plaintiff
over the suit property is also requested.
3. During pendency of suit, defendant Nos.1 and 2 filed an
application under Order 7 Rule 11(d) of the Civil Procedure Code,
1908 (hereafter, "the CPC", for short). It is alleged that the suit is
not maintainable for want of notice under section 487 of the
Maharashtra Municipal Corporations Act, 1949 (hereafter, "the
MMC Act", for short), and the suit is barred by section 433(a) of
the said Act.
4. By the impugned order, the Trial Court rejected the
application. The applicants have, therefore, filed present revision
applications.
5. Learned advocate for the applicants submitted that on plain
reading of section 433(a) of the MMC Act subject to provisions of
the Act, the power of Civil Court to entertain challenge to notice
issued under section 260 of the Act is taken away. Therefore,
according to the applicants, the right is created under a statute and
remedy is also provided a statute. Therefore, the suit before the
Civil Court is not maintainable.
6. The issue regarding maintainability of a suit challenging
notice under section 260 of the MMC Act is no longer res integra
in view of judgment of the Division Bench of this Court in Abdul
Karim Ahmed Mansoori vs. Municipal Corporation of Greater
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Mumbai and Another reported in 2014 (1) Mh.L.J. 227, the
petition arose out of notice under section 354(a) of the Mumbai
Municipal Corporation Act, 1888. However, the Division Bench of
this Court considered provisions of section 433(a) of the MMC Act
holding that the inherent jurisdiction of the Civil Court in a suit
challenging notice under section 260 of the said Act is available on
the limited grounds which are at page 235 of the judgment as
under:
"433-A.....that the act of issuance of such notice is nullity, or
that while issuing such notice, the mandatory provisions of
the said Act have not been complied with, or that the
Authority issuing such a notice has not acted in conformity
with the fundamental judicial procedure, or that it is an
abuse of exercise of power, or that the offending act has not
been done in good faith, remains intact, in view of the
aforestated law laid down in judicial pronouncement."
7. It is held that the Civil Court is not precluded of its inherent
jurisdiction to to entertain and decide such challenge to a notice
under section 260 of the said Act, on such limited grounds as there
is no other forum available under the said Act to ventilate such
grievances of the plaintiff.
8. Considering the averments in the plaint, the plaintiff has
pleaded that the action of defendant Nos.1 and 2 is not bona fide.
The scope of application under Order 7 Rule 11(d) is restricted to
the averments in the plaint. The truth or otherwise of the
averments in the plaint cannot be gone into at the stage of
consideration of application under Order 7 Rule 11 of the CPC.
Since the plaintiffs have raised plea of action of defendant Nos.1
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and 2 being mala fide, the rejection of an application by the Trial
Court does not suffer from legal infirmity.
9. The next ground is regarding maintainability of suit for want
of notice under section 487 of the MMC Act, it is well settled that
such notice is required if the action of the corporation is taken in
accordance with provisions of the Act. If it is the case of the
plaintiff that action of defendant Nos.1 and 2 is not in accordance
with provisions of the Act, this Court at the stage of considering
application under Order 7 Rule 11 of the CPC is not entitled to
scrutinize the averments in the context of its truth or false. Hence,
the Trial Court has rightly rejected the application under Order 7
Rule 11 of the CPC. The revision applications has no merits.
10. The revision applications are, therefore, dismissed. No costs.
11. However, considering the question involved, the Trial Court
is directed to decide suit within one year from today.
12. It will be open for the Trial Court to frame issue regarding
maintainability and jurisdiction of the Civil Court in the context of
pleading raised by the parties.
(AMIT BORKAR, J.)
