1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 194 OF 2010 M/s. Classic Promoters and Builders Private Limited .....Applicant Versus Dr. Dilip Indrabhan Lunkad & Ors. ......Respondents Mr. V. P. Sawant i/b. Mr. Indrajeet Kulkarni, Advocate for the Applicant. Mr. Nikhil Karnawat, Advocate for Respondent No.1. Mr. Mehul Shah, Advocate for Respondent Nos. 2 to 5. Mr. K. V. Saste, Advocate for Respondent No.6. CORAM : R. V. MORE, J. DATE : 30TH MARCH, 2010. P.C.: Heard Mr. Sawant, learned Counsel for the Applicant, Mr.Karnawat, learned Counsel for Respondent No.1, Mr. Saste, learned Counsel for Respondent No.6 and Mr.Mehul Shah, learned Counsel for Respondent Nos. 2 to 5. 2 2. By the impugned order, the Applicant/Original Defendant No.1’s application under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 came to be rejected and therefore, the present petition. 3. The Respondent No.1 filed Special Civil Suit No.491 of 1999 for declaration that Defendants have no right or authority to amalgamate the suit property no.1 with the suit property no.2 without his consent. Declaration is also claimed to the effect that sanctioning of building plans dated 5th April, 2008 by the Defendant No.6 – Corporation permitting amalgamation of suit property no.1 with suit property no.2 is illegal and bad in law. 4. In the above suit, the Applicant/Defendant No.1 filed an application under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 on the ground that Respondent No.1 instituted suit without notice under section 487 of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the BPMC Act) and therefore, the suit is not maintainable. 5. Having heard the learned Counsel for the respective parties and having gone through the impugned order, I do not find any merit in the Petition. It is settled position of law that while deciding an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908, the Court 3 cannot travel beyond the averments made in the plaint. It is also further settled position of law that the veracity of the averments cannot be gone into at that stage. In other words, the averments made in the plaint will have to be accepted as it is, while considering the application under Order 7 Rule 11 of the said Code. I have perused the plaint, the Respondent No.1 in paragraph 7 of the plaint has made following averment: “That by amalgamating suit property no.1 with the suit property no.2, without the consent of the Plaintiff herein, the Defendant No.6-Corporation had acted beyond the scope and ambit of its power and authority given to it under the provisions of the Bombay Provincial Municipal Corporation Act, 1949 as well as the Maharashtra Regional Town Planning Act, 1966. In paragraph 9 again following averment is made: “ That therefore, the act on the part of the Defendant No.1 Company to amalgamate the suit property no.1 with the suit property no.2 without the knowledge and express consent of the Plaintiff herein, is absolutely illegal, bad in law and ultra vires 4 the powers vested in the Defendant No.6 Corporation.” Thus, one of the grounds to challenge the action of Respondent No.6-Corporation is same is beyond the scope and ambit of its power and authority and/or ultra vires to the provisions of the BPMC Act. The Apex Court in the case of the Poona City Municipal Corporation Versus Dattatraya Nagesh Deodhar reported in AIR 1965 SC 555 while considering the issue of necessity of notice prior to filing of the suit under section 487 of the BPMC Act held that the act of the Corporation has to be in pursuance or execution or intended execution of the BPMC Act and if it is not so, the notice would not be a condition precedent to file a suit. In the present case also, averment in the plaint makes it clear that the notice is beyond the scope and authority of the Corporation and/or ultra-vires to its powers under section 487 of the BPMC Act. I therefore, do not find fault in the finding arrived at by the Trial Court in this regard. 6. Be that as it may, the Respondent No.1/Plaintiff also sent letter on 5th December, 2008 to the Corporation. By this letter, the Respondent No.1/Plaintiff disputed the decision of the Corporation to amalgamate the suit properties and alleging same against his interest and contrary to 5 law. The learned Trial Judge considered this letter and held that since there is no prescribed format of notice under section 487 of the BPMC Act, the letter can be construed to be sufficient compliance of the provisions of section 487 of the BPMC Act. I do not find any error in the said findings. 7. Taking totality of facts and circumstances into consideration, I am of the view that the Petitioner cannot make out any error in the impugned order so as to enable me to exercise my powers under section 115 of the Code of Civil Procedure, 1908. The Petitioner is accordingly, dismissed. 8. It is made clear that the observations are made for the purpose of disposal of this revision application and the Applicant is always at liberty to adduce evidence in Trial Court to substantiate his ground of objection regarding maintainability of the suit for want of notice under section 487 of the BPMC Act. (R. V. MORE, J.)