: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.2281 OF 2007 FIRST APPEAL NO.2281 OF 2007 FIRST APPEAL NO.2281 OF 2007 WITH WITH WITH CIVIL APPLICATION NO.4518 OF 2007 CIVIL APPLICATION NO.4518 OF 2007 CIVIL APPLICATION NO.4518 OF 2007 IN IN IN L.C. SUIT NO.2702 OF 2007 L.C. SUIT NO.2702 OF 2007 L.C. SUIT NO.2702 OF 2007 Mohamed Arif Haji Umar Motiwala ...Appellant V/s. Municipal Corporation of Greater . Mumbai & Ors. ...Respondents Mr.N.K. Mudnaney, Advocate, for the Appellant. Mr.J.J. Xavier, Advocate, for Respondent Nos.1 to 3. Mr.Shoaib I. Memon, Advocate, for Respondent Nos.5 & 6. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 5TH FEBRUARY, 2008. DATE : 5TH FEBRUARY, 2008. DATE : 5TH FEBRUARY, 2008. JUDGMENT :- JUDGMENT :- JUDGMENT :- 1. On 30th November, 2007, the Appeal was ordered to be heard finally. The Appeal is by the original plaintiff taking an exception to the Judgment and Order dated 30th August, 2007 passed by the Trial Court by which the Suit has been dismissed for want of jurisdiction. 2. The submission of the learned Advocate for the appellant is that going by the averments made in the plaint, the Suit could not have been dismissed for : 2 : want of jurisdiction as it cannot be said that on the basis of the averments made in the plaint, the Suit was barred by law. He submitted that without framing preliminary issue of jurisdiction, the Suit could not have been dismissed on the ground of want of jurisdiction. 3. The learned Counsel appearing for the 1st respondent supported the impugned Judgment and Order. The learned Counsel appearing for the 5th and 6th respondents opposed the submissions by submitting that under Order 7 Rule 11 of the Code of Civil Procedure, 1908, the Trial Court was empowered to reject the plaint at any stage of proceedings. He submitted that the challenge in the Suit was to an action under Section 53 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the said Act of 1966"). He submitted that, therefore, the Suit was barred in view of Section 149 of the said Act of 1966. He submitted that the order needs no interference, as the Trial Court was well within its powers to reject the plaint. He placed reliance on various decisions. The first decision relied upon by him is in the case of Pearlite Liners Pvt. Ltd. V/s. Manorama Sirsi [2004 (2) ALL MR (S.C.S.N.) 11]. He also relied upon the judgment of the learned Single : 3 : Judge of this Court in the case of Sujala Yeshwant Nitsure & Ors. V/s. The Municipal Corporation of City of Pune & Ors. [1996 (2) Bom.C.R. 503], Lastly, he relied upon a decision of the Apex Court in the case of I.T.C. Ltd. V/s. Debts Recovery Appellate Tribunal and Ors. [1998 (2) SCC 70]. 3. I have carefully considered the submissions. The perusal of the impugned order shows that the Suit was placed before the Trial Court for consideration of prayer for ad-interim relief in the Chamber Summons taken out by the appellant-plaintiff. While considering the said prayer, the learned Trial Judge came to the conclusion that for want of statutory notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960 and for want of jurisdiction in view of Section 149 of the said Act of 1966, the Suit was not maintainable. The relevant part of the impugned order reads thus :- "Order which is passed by the Corporation under Section 53 of MRTP Act is challenged by him in this suit which is not maintainable in view of bar created under Section 149 of MRTP Act. There is inbuilt provision of appeal in MRTP Act. When equally efficacious remedy is available, remedy of civil suit for claiming injunction cannot be resorted to. As a responsible person and officer of : 4 : the court, Mr.Mudnaney ought to have brought correct legal position to the notice of the Court. The Plaintiff has impleaded a Co-Op. Hsg. Society as defendant in this suit without issuing notice as contemplated in section 164 of Maharashtra Co-op. Societies Act to the said Society. For want of notice and want of jurisdiction as mentioned above correct legal position to the notice of the Court. The Plaintiff has impleaded a Co-op. Hsg. Society as defendant in this suit without issuing notice as contemplated in section 164 of Maharashtra co-op. Societies Act to the said Society. For want of notice and for want of jurisdiction, as mentioned above in section 149 of M.R.T.P. Act, this suit is not maintainable. In this view of the matter, relief prayed by the plaintiff in chamber summons is refused and the suit stands dismissed with costs, for want of jurisdiction." 4. On plain reading of the said order, it is obvious that the learned Judge has not exercised the powers under Rule 11 of Order VII of the said Code in as much as he has not purported to reject the plaint, but he has dismissed the Suit for want of jurisdiction. While exercising the power under Rule 11 of Order VII of the Code, the suit cannot be dismissed. 5. It will be necessary to refer to the prayers made in the Suit filed by the appellant. The said : 5 : prayers read thus:- "(a). that this Hon’ble Court may be pleased to declare that the Defendants Nos.1 and 2 are not entitled to demolish or pull down the brick masonary wall in the landing of staircase at 8th floor of the building known as New Cadel Queen, 19A, Veer Savarkar Marg, Mumbai 400 016, pursuant to Notice No.EB/7889/GN/A dated 27.4.2007 and/or letter no.EB/7889/GN/A dated 9.7.2007; (b). that the Defendants Nos.1 and 2 by themselves, their officer, subordinates, servants and agents be restrained by a permanent order and injunction of this Hon’ble Court from pulling down, demolishing or removing the brick masonary wall in the landing of staircase at 8th floor of the building known as New Cadel Queen, 19A, Veer Savarkar Marg, Mumbai 400 016, pursuant to Notice No.EB/7889/GN/A dated 27.4.2007 and/or letter no.EB/7889/GN/A dated 9.7.2007; (c). that the Defendants Nos.1 and 2 be directed by a mandatory order and injunction of this Hon’ble Court to revoke the permission or licence granted to Shri Sohail Shafi Khan of M/s.Network Display, the Defendant no.6 under Sec. 328/328A of N.M.C. Act for display of non illuminated advertisement hoarding on terrace of 8th floor of the said building known as New Cadel Queen, ’B’ Wing, 19A, Veer Savarkar Marg, Mumbai 400 016 and a pillar of boarding of New Cadel Queen "A" wing." 6. Even assuming that prayers (a) and (b) relate to an action purportedly taken under Section 53 of the said Act of 1966, prayer (c) was for seeking a : 6 : mandatory injunction as against the 1st and 2nd defendants (Municipal Corporation and its Executive Engineer). The prayer (c) is not directed against the 5th defendant which is a Co-operative Society registered under the said Act of 1960. Thus, the learned Trial Judge has completely overlooked prayer (c). 7. It will be necessary to refer to Rule 11 of Order 7 of the said Code which reads thus:- "11. Rejection of plaint - 11. Rejection of plaint - 11. Rejection of plaint - The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate (f) where the plaintiff fails to comply with the provisions of rule 9 : 7 : Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to b recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." 8. The clause invoked by the learned Counsel for the respondent Nos.5 and 6 for supporting the impugned order is clause (d) which empowers the Court to reject the plaint when it appears to the Court from the statements in the plaint that the same is barred by any law. Apart from the fact that the Trial Court has not rejected the plaint, there is no specific finding recorded by the Trial Court that the suit appears from the statements in the plaint to be barred by any law. The learned Judge has not stated anything about prayer (c) of the plaint. It is difficult to understand as to how prayer (c) is barred by the said Act of 1966 or the said Act of 1960. 9. If the Suit was to be dismissed on the ground of want of jurisdiction or on account of failure of the appellant-plaintiff to serve statutory notice, the : 8 : same could not have been dismissed in the manner in which the Trial Court has dismissed the same. If issue of jurisdiction was raised at the time of hearing of the prayer for interim relief, the learned Trial Judge could have taken recourse to Section 9-A of the said Code and could have framed an issue and decided the same after giving an opportunity to the parties to lead evidence. By the order impugned, the learned Trial Judge has dismissed the Suit in most unsatisfactory manner. The course adopted by the learned Judge is unknown to law. Hence, the impugned order deserves to be quashed and set aside and the Suit deserves to be restored. 10. Hence, I pass the following order:- "O R D E R" "O R D E R" "O R D E R" (a). The impugned Judgment and Order dated 30th August, 2007 is quashed and set aside. (b). L.C. Suit No.2702 of 2007 is restored to the file of the learned Trial Court. (c). Parties are directed to appear before the learned Trial Judge on 3rd March, 2008 at : 9 : 11:00 a.m. (d). The learned Judge will proceed to decide the pending Chamber Summons and Notice of Motion in accordance with law. (e). All contentions of the parties including the contentions raised regarding bar of Suit are expressly kept open. (f). Appeal is partly allowed in above terms with no order as to costs. (g). In view of the aforesaid order, Civil Application No.4518 of 2007 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]