(1) CW – 281/2007 - Krishi Upaj Mandi Samiti,Udaipur & Anr.Vs. Shri Prem Chand, (2) CW- 289/2007- Krishi Upaj Mandi Samiti,Udaipur & Anr.Vs. Shri Vasudev & (3) 35/2008 -Krishi Upaj Mandi Samiti,Udaipur & Anr.Vs. Shri Gautam Lal. Judgment dt.25.7.08 1/2 1. S.B. CIVIL REVISION PETITION NO.281/2007 Krishi Upaj Mandi Samiti,Udaipur & Anr.Vs. Shri Prem Chand. 2. S.B. CIVIL REVISION PETITION NO.289/2007 Krishi Upaj Mandi Samiti,Udaipur & Anr.Vs. Shri Vasudev. 3. S.B. CIVIL REVISION PETITION NO.35/2008 Krishi Upaj Mandi Samiti,Udaipur & Anr.Vs. Shri Gautam Lal. Date of order : 25th July, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. R.S. Saluja for the petitioner. Mr. Deepak Manaria for the respondents. --------- 1. Heard learned counsels. 2. These revision petitions are directed against the impugned order dated 20.9.2007 whereby the learned trial court rejected the application of the defendant under Order 7 Rule 11 C.P.C. The petitioner Krishi Upaj Mandi Samiti had filed said application under Order 7 Rule 11 C.P.C. on the ground that under Section 31 of the Agricultural Produce Market Act, 1961, the plaintiff had not served mandatory notice of two months prior to filing of the suit in question and, therefore, the suit was not maintainable. The learned trial court has rejected the said application on the ground that whether the said notice for removing kiosk of the plaintiff from the disputed site was an action in good faith or not, was a mixed question of fact and law which could be decided only by evidence and, therefore, the application under Order 7 Rule 11 C.P.C. was not maintainable and the same was accordingly rejected. 3. The learned counsel for the respondent-plaintiff could (1) CW – 281/2007 - Krishi Upaj Mandi Samiti,Udaipur & Anr.Vs. Shri Prem Chand, (2) CW- 289/2007- Krishi Upaj Mandi Samiti,Udaipur & Anr.Vs. Shri Vasudev & (3) 35/2008 -Krishi Upaj Mandi Samiti,Udaipur & Anr.Vs. Shri Gautam Lal. Judgment dt.25.7.08 2/2 not point out any such notice having been given by the plaintiff prior to filing of the suit in question. 4. After hearing learned counsels for the parties, it appears that the learned trial court has erred in rejecting the application under Order 7 Rule 11 on the said ground. The requirement of Section 31 of the Act is mandatory and the plaintiff must serve such notice and allow a period of two months before such suit can be instituted. Admittedly the said suit was instituted without giving any such notice and, therefore, the question whether the notice by the defendant KUMS was in good faith or was not the question required to be decided at this stage. The requirement of giving notice is mandatory irrespective of allegations of lack of good faith or otherwise. Therefore, these revision petitions are allowed and the impugned order dated 20.7.2007 is set aside. 5. However, in the facts and circumstances, since the plaintiff has been running a pan shop in the said kiosk for last so many years, it would be appropriate to direct the petitioner KUMS to reconsider the case and only if they find it necessary again to serve any such notice for removal of kiosk in question they may serve fresh notice to the plaintiff. 6. With these observations, these revision petitions are disposed of. [ DR. VINEET KOTHARI ], J. item No.59-60 & SS/1 babulal/-