IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.162 OF 2006 IN BOMBAY CITY CIVIL COURT SUIT NO.3661 OF 2006 WITH CIVIL APPLICATION NO.223 OF 2006 Binay Bahadur Srivastava & Ors. ...Appellants Versus Maharashtra Housing & Area Development Authority & Ors. ...Respondents ...... Mr.B.B.Srivastava for Appellants. None for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 7, 2006. MARCH 7, 2006. MARCH 7, 2006. P.C. P.C. P.C. 1. Heard Counsel for the parties. This Appeal takes exception to the order passed by the Trial Court below Exhibit 4 which reads thus: : 2 : "The Suit agst.Deft.no.3 is a Suit agst. Collector/Govt. Leave was rejected to proceed with the suit agst. deft.no.3 without notice u/s.80 of CPC. So Suit agst. Deft.no.3 stands dismissed for want of notice." 2. The Court has adverted to its earlier order passed on 13th September 2005 when leave to institute suit was refused insofar as Defendant No.3 is concerned, in absence of Notice under Section 80 of the Code of Civil Procedure. Indeed, the Suit was thereafter admitted on 14th September 2005 and numbered. The Appellants claim that they have sent notice purportedly to be under Section 80 of the Code to the Collector on 16th September 2005 which has been duly served and more than two months had elapsed when the impugned order came to be passed on 2nd February 2006. According to the Appellants in such a situation, the Court ought not to have dismissed the Suit for want of notice as against Defendant No.3, but proceeded with the same. This submission clearly overlooks that the lower Court had already rejected leave to institute Suit against Defendant No.3 on 13th September 2005. That order has not been challenged - which is : 3 : fairly accepted by the Counsel for the Appellants before this Court. If it is so, the order passed on 2nd February 2006 was a formal order reiterating the position stated in order dated 13th September 2005. Understood thus, no fault can be found with the operative order passed by the Trial Court which is impugned in this Appeal. 3. To get over this position, Counsel for the Appellants submits that case for waiving of notice under Section 80 of the Code was made out by the Plaintiffs. That argument would be valid and relevant to consider the justness of the order dated 13th September 2005, which has not been impugned before me. Even if the said argument was to be analysed, the Counsel has relied on Paragraph 18 of the Plaint, which reads thus : "18. Looking to the urgency of the nature of suit and the impending monsoon, it is not possible to give fresh notice to D-1 to D-3 and as such the requirement may be waives. Earlier statutory notice under Sec.80(1) of C.P.C. as well as Sec.173 of MHADA Act has already been given on 10/10/03 and 16/12/03 respectively. Copies whereof are annexed hereto and marked as Annexure 3/1 & 3/4." : 4 : 4. This assertion will be of no use to the Appellants. No case has been made out to justify the claim for waiving of notice in terms of Sub-section (2) of Section 80. Merely saying that on account of impending monsoon and urgent nature of the suit, the notice under Section 80 of the Code be waived, cannot be accepted. No material facts in that behalf have been provided by the Plaintiffs. 5. Be that as it may, for the reasons already recorded above, as order of 13th September 2005 has remained unchallenged, the impugned order being consequence and reiteration of that position, will have to be upheld. Hence, the Appeal is devoid of merits. The same is dismissed. 6. In view of the above order, cognate Civil Application also stands disposed of. A.M.KHANWILKAR, J.