1 wp4067.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4067 OF 2011 Shivaji s/o Tukaram Giramkar, Age: 45 years, Occ: Agri., R/o. Ajanuj, Tq. Shrigonda, Dist. Ahmednagar and others. ...PETITIONERS VERSUS The Sub Divisional Officer, Karjat, Tq. Karjat, Dist. Ahmednagar and others. ...RESPONDENTS ... Mr. Niteen V. Gaware, Advocate for petitioners. Mr. N.R. Shaikh, A.G.P. for Resp. Nos. 1 & 2. Mr. S.P. Brahme, Advocate for Resp. Nos. 3 to 19. ... CORAM: S.S. SHINDE, J. DATE : 24TH NOVEMBER, 2011 PER COURT : . Heard learned Counsel for the petitioners and learned Counsel for the respondents. 2. Learned Counsel appearing for the petitioners invited my attention to the grounds taken in the petition and submitted that, the 2 wp4067.11 plaint was not properly verified as provided under Section 10 of the Mamlatdar's Courts Act. He further submits that, there is an alternate approach road and also road which is given to the respondents, is not in existence. He further submits that, though it is stated by the authorities that notice was given to the petitioners, however, panchnama was that, the said notice was served by affixing it on the door of the petitioners, is not proper service of notice. Therefore, according to learned Counsel for the petitioners, said notice is not served as contemplated under the relevant provisions. Therefore, relying upon the averments in the writ petition and also grounds taken in the petition, learned Counsel for the petitioners would submit that, writ petition may be allowed. 3. On the other hand, learned A.G.P. appearing for the State and State authorities invited my attention to the affidavit in reply and copy of the panchnama annexed with the affidavit 3 wp4067.11 in reply and submitted that, the petitioners refused to accept the notice and therefore, same was affixed on the door of the house of the petitioners and necessary panchnama was prepared. Therefore, he submits that, there is no substance in the contention of the Counsel for the petitioners that, notice is not served upon the petitioners. 4. Learned Counsel appearing for respondent Nos. 3 to 19 would submits that, Regular Civil Suit No. 160 of 2008 is filed by the petitioners and application filed by them for temporary injunction has been rejected, and in view of the pendency of the said suit and the rejection of the application for temporary injunction, adjudicating this writ petition would be a futile exercise. He further submits that, even if the revisional authority is told to consider and comply the provisions of Section 10 of the Mamlatdar's Courts Act, 1906, is of no use, since the suit is filed by the petitioners and the application for 4 wp4067.11 temporary injunction is rejected. The Counsel further submits that, merely because there is no verification by all the applicants and therefore, entire further proceedings cannot be said to be vitiated. Such defect can be cured subsequently. 5. I have given due consideration to the rival submissions. At the outset, it would be relevant to reproduce herein below the provisions of Section 10,11 and 12 of the Mamlatdar's Courts Act, 1906, (For short, "said Act") which reads thus : "10. When the plaint is presented, and has, if necessary, been treated in the manner specified in section 9, the Mamlatdar shall require the plaintiff to subscribe and verify the plaint in his presence, in open Court, in the manner following, or to the like effect :- "I, A.B., the plaintiff, do 5 wp4067.11 declare that what is stated in this plaint is true to the best of my information and belief." 11. (1) The Mamlatdar shall endorse the plaint to the effect that it was duly subscribed and verified. (2) Where the plaintiff cannot write, the verification may be written from him in open Court and he shall affix his mark to his name in token of the authenticity of the verification, and the Mamlatdar shall, in such case, record that the verification was made in his presence at the request of the plaintiff, and that his mark was so affixed. 12. The Mamlatdar shall rejected the plaint- (a) where the plaintiff declines to make a statement on oath under section 9; or (b) where the plaintiff is willing to make or has made a 6 wp4067.11 statement on oath under section 9, but fails to furnish the particulars specified in section 7 within the time fixed under section 9 or altogether; or (c) where it appears upon the face of the plaint, (i) that the property or use claimed is not one of the kind specified in section 5, or (ii) that the cause of action arose more than six months before the plaint was presented; or (d) where the plaintiff declines to subscribe or verify the plaint as required by section 10 and 11." 6. Admittedly, in the present case, the application was filed by 17 applicants before the Tahsildar, Shrigonda in Wahivat Case No.13/2008. However, from perusal of the verification, it 7 wp4067.11 appears that it is verified only by two applicants i.e. respondent No.3 Narayan Baban Nandgude and respondent No.10 Dattu Baban Nandgude in this writ petition. From perusal of verification, even there is no statement that they have verified the plaint on behalf of other applicants as well. Therefore, said defect goes to the root of the matter and in the light of provisions of Section 10 of the said Act, revisional authority should have adjudicated the said issue when it was specifically raised before him. From careful perusal of the judgment and order passed by the revisional authority, admittedly the said point has not been discussed by the revisional authority and no any observation/opinion has been expressed in that respect. Therefore, for the aforesaid reasons,in my considered opinion, the judgment and order passed by the revisional authority deserves to be interfered with. Accordingly, same is quashed and set aside. 7. Revision No. 83 of 2009 is restored to 8 wp4067.11 its original position. The revisional authority to consider the point raised by the petitioners that the plaint is not verified by 15 applicants out of 17 applicants, and it is verified by only two applicants. It is made clear that, this Court has not expressed any opinion about the said aspect and it is left open to the revisional authority to consider the provisions of Section 10 to 12 of the said Act and then decide the point agitated by the petitioners that there is no proper verification of the plaint by all the applicants. Since the parties are litigating for a considerable period, it is desirable that the revision should be decided by the revisional authority within two months from the receipt of this order. It is needless to mention that, the revisional authority will give proper opportunity to the parties to put forth their case. It is made clear that, so far point raised by the petitioners that there is no proper service of notice and there was no panchnama is concerned, the said point is not accepted and stands 9 wp4067.11 rejected. Parties to appear before the revisional authority on 05-12-2011 at 11-30 a.m. . Interim relief granted by this Court during the pendency of this writ petition to continue till disposal of the revision by the revisional authority. 8. Writ petition is allowed to above extent and stands disposed of. [S.S. SHINDE, J.] sut/NOV11