1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1300 OF 2009 1 Darmesh Jitendra Shah 2 Yatin Jitendra Shah 3 Dr.Mrs.Leena Darmesh Shah 4 Mrs.Hemlata Jitendra Shah ...Petitioners vs. 1 Maratha Vidya Prasarak Samaj 2 Rajendra Jangappa Gawali 3 Arun Jangappa Gawali 4 Kaisash Madhav Gawali 5 The State of Maharashtra ...Respondents Mr.R.D.Soni for the petitioners Mr.N.V.Bandiwadekar for the respondent no.1 Mr.N.J.Patil h/f Mr.M.L.Patil for respondent no.6 Mr.S.D.Rayrikar, AGP for respondent no.6 CORAM :A.S.OKA,J. DATE : SEPTEMBER 25, 2009 P.C. 1 By this petition under Article 227 of the Constitution of India, the petitioners who are the original defendant nos. 10 to 13 have challenged the Judgment and Order dated 23 rd October 2008 passed by the trial court. The prayer in the said application was for rejection of the plaint as against the petitioners on the ground that it does not disclose any cause of action against the petitioners. By the impugned order the said application has been rejected. 2 2 The learned counsel for the petitioners invited my attention to the averments made in the plaint. He stated that there is no cause of action pleaded as against the petitioners in the amended plaint. He submitted that the property held by the petitioners is not the subject matter of the suit. He urged that the suit was clearly barred by section 149 of the Maharashtra Regional and Town Planning Act,1966. He submitted that this was a fit case where the plaint ought to have rejected as against the petitioners. 3 The learned counsel for the first respondent supported the impugned order dated 23 rd October 2008. He invited my attention to the amended prayer clause (d-1). He stated that the trial court was justified in rejecting the application. 4 I have given careful consideration to the submissions. In paragraph 1 of the plaint the suit property situated at village Adgaon District Nasik is described as under : Sr.no. Block No. Area Holders 1 1072 3H 13R Defendant no.1 2 1073/1 2H 6R Defendant nos.2 and 3 The first prayer in the suit is for a direction to initiate proceedings for acquisition of suit properties. 3 Prayer (d-1) reads thus : d-1 The suit properties Block Nos.1072 and 1073/1 being under suit reservation and in the lis, the conveyance effected by Defendant Nos.1 to 3 in favour of Defendant No.9 dated 30-1-2008 bearing Registration No.1092/2007, be declared as void ab-initio and and of no legal consequence. The act of Defendant Nos.4 and 5 of de- reserving Block No.1076(P) and to put it in residential zone, defeating Reservation No.111 of the draft plan, without any notice or hearing to the plaintiff and without following procedure prescribed by Maharashtra Regional Town Planning Act, be declared as illegal and without jurisdiction; hence nullity. 5 The case of the plaintiffs is that the concerned defendants were not entitled to dereserve land bearing Block Nos.1076 (P). Accordingly, the second part of the prayer d-1 has been incorporated in the plaint by amendment. It is pertinent to note that the petitioners are claiming to be the owners of a part of land bearing Block No.1076. The only ground pleaded in the application made by the petitioners was that there is no cause of 4 action as against the petitioner. On plain reading of the averments made in the plaint, the said contention cannot be accepted. The plaintiffs are seeking declaration that the act of authorities of dereserving the Block No.1076 (P) is nullity. The petitioners are claiming to be owners of the part of the said Block. While deciding an application for rejection of the plaint only the plaint is required to be seen. Considering the relief claimed in terms of prayer (d-1), the plaint cannot be rejected as against the petitioners. 6 As far as bar of section 149 of the said Act of 1966 is concerned, this was not a ground taken in the application for rejection of the plaint. The trial court was justified in rejecting the application. Notwithstanding the said order, the issue of jurisdiction, issue of maintainability and issue based on section 149 of the said Act of 1966 can be always considered by the trial court at appropriate stage. 7 Subject to what is observed above, the petition deserves to be rejected and the same is accordingly rejected. It is, however, made clear that all contentions of the parties on the merits of the suit are expressly kept open. JUDGE