1 FA1120-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 1120 OF 2011 ALONGWITH CIVIL APPLICATION NO.1832 OF 2011 Shyam Bihari Harnarayan Sharma .. Appellant V/s. Municipal Corporation of Greater Mumbai & Ors. .. Respondents ..... Mr. Bipin Joshi a/w. Mr. I. M. Vora for the appellant. Mr. Vinod Mahadik for respondent No.1- BMC. Ms. Vandana P. Santara for respondent No.3. ..... CORAM : A.S.OKA, J. DATE : AUGUST 9, 2011. P.C.: On 21st July, 2011, an order was passed directing that this Appeal shall be heard finally. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the first and second respondents and the learned counsel appearing for the third respondent. The appellant-original plaintiff filed a suit for challenging a notice under Section 55(1) of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as “the said Act”) issued by the first respondent Municipal Corporation which is the planning authority. 2. A preliminary issue was framed by the Trial Court on the basis of Section 149 of the said Act. The trial Court recorded a 2 FA1120-11 finding that the suit was barred by provisions of Section 149 of the said Act. Therefore, by the impugned Judgment and decree, this suit has been dismissed. 3. The learned counsel appearing for the appellant submitted that there is a specific pleading incorporated in the plaint by carrying out amendment that the notice under Section 55(1) of the said Act was null and void. He pointed out amended paragraph No.14 of the plaint as well as the amended prayers. He has placed reliance of decision of this Court dated 5th May, 2011 in the case of Laxman Barkya Wadkar since deceased by his Legal Representative & Others V/s. Mumbai Municipal Corporation (F.A. 1635 of 2010 and other connected matters). He submitted that this Court has considered all the decisions which are considered by the trial Court and held that bar under Section 149 will not be attracted if there is a pleading that notice under Section 55(1) of the said Act is a nullity. 4. The learned counsel appearing for the first and third respondent supported the impugned judgment and order. The learned counsel appearing for the third respondent submitted that Section 55(1) is clearly applicable to the offending structure as the said structure is of temporary nature which has been erected unauthorizedly. 3 FA1120-11 5. I have given careful consideration to the submissions. The trial Court has not framed and decided any issue on merits. The only issue framed was a preliminary issue of jurisdiction. The trial Court has mainly relied upon decision of this Court in the case of Mohan N. Bhawe (Dr.) V/s. Municipal Corporation of Greater Bombay [2005 (3) Bom.C.R. 300] and Bales Sardara Paracha V/s. Municipal Corporation of Greater Bombay [2005 (4) Bom. C.R. 577]. In the case of Laxman Barkya Wadkar (supra), this Court has considered the entire law on the subject including the aforesaid decisions and various decisions of the Apex Court. In paragraph No.14, this Court has held thus: “Thus, in view of the law laid down by the Apex Court, notwithstanding the finality clause and the clause expressly ousting the jurisdiction of the Civil Court in Section 149 of the said Act, if there is an allegation made in the plaint that action of issuing notice under Sections 53(1) or 55 of the said Act is nullity or without jurisdiction, express exclusion of the jurisdiction of the Civil Court will not come in the way of the Civil Court entertaining the said suit. However, as held by the Apex Court in case of Shiv Kumar Chadha (supra), the Court will have to be prima facie satisfied that the action appears to be nullity or without jurisdiction. Thus, the bar created by Section 149 will not apply in a case where the action of issuing notice under Section 53(1) or Section 55(1) is alleged to be nullity. The suit cannot be dismissed at the threshold on the ground of bar of Section 149 if there is a case made out in the plaint that the action of issuing notice under Section 53(1) or Section 55(1) is nullity. If the Plaintiff ultimately fails to establish the plea of nullity on evidence, the suit will be naturally thrown out.” (underline supplied) 4 FA1120-11 9. Perusal of the amended plaint shows that there is a specific plea incorporated that the action of issuing notice under Section 55 of the said Act is nullity. There is a specific prayer added by amendment for declaration that the notice was null and void. Therefore, on plain reading of the plaint, the suit could not have been thrown out at the threshold on the ground of bar created by Section 149 of the said Act. If on evidence, the appellant failed to prove that the action is nullity, the suit will have to be thrown out. 10. The suit is of the year 2009. The third respondent has filed written statement to unamended plaint. Instead of directing the trial Court to decide the jurisdiction a fresh, interests of justice will be served if the suit itself directed to be decided expeditiously by keeping the issue of applicability of Section 149 of the said Act open. 11. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and decree dated 30th March, 2011 passed by the learned Judge of the City Civil Court, Bombay is quashed and set aside. ii. L. C. Suit No.2227 of 2009 is restored to the file of the trial Court. 5 FA1120-11 iii. Parties are directed to appear before the trial Court on 26th September, 2011. On that date, it will be open for the respondents to file written statement and/or additional written statement. Thereafter, the trial Court shall proceed to frame issues. iv. The suit shall be decided as expeditiously as possible and preferably before the end of April 2012. vii. Ad-interim relief granted on 29th April, 2011 by this Court will continue to operate till the final disposal of the suit. viii. All contentions of the parties on merits of the suit are kept open. ix. Appeal is partly allowed on the above terms with no order as to costs. x. Civil Application No.1832 of 2011 does not survive and the same is disposed of. (A.S.OKA, J.)