1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 32/2010 (Laxman Damaji Devikar (dead) Suryabhan Laxman Devikar VERSUS The City of Nagpur Corporation, thr. Municipal Commissioner, & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Anup Dhore h/f Shri Anjan De, counsel for the appellant. Shri J.B. Kasat, counsel for the R-1. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 12, 2010 . Heard. The appellants are the original plaintiffs. A suit was filed by the plaintiffs for a declaration that a notice issued by the respondent no.1-Corporation for demolition of the alleged illegal construction made by the plaintiffs was illegal and the same may not be acted upon. The plaintiffs also claimed a declaration that the plaintiffs are the lawful owners of the suit property. The Deputy Director of Land Records was also made a party to the suit. The defendants denied the claim of the plaintiffs and pleaded that the suit filed by the plaintiffs was bad for want of statutory notice under the provisions of Section 384 of the City of Nagpur Corporation Act, 1948 and Section 80 of the Code of Civil Procedure against the Deputy Director of 2 Land Records. An application was, therefore, moved by the defendants for rejection of the plaint. The trial Court framed the preliminary issue about the tenability of the suit in the absence of statutory notice under Section 384 of the City of Nagpur Corporation Act, 1948 and Section 80 of the Code of Civil Procedure. Both the Courts on an appreciation of the pleadings of the parties, held that the suit filed by the plaintiffs was not tenable as no statutory notice as required under Section 384 of the City of Nagpur Corporation Act was served on the respondent no.1-Corporation. The Court further held that the notice under Section 80 of the Code of Civil Procedure also could not have been said to be waived in this case as though an application under Section 80(2) was filed in the trial Court, the plaintiffs had failed to seek any order on the same till the preliminary issue about the tenability of the suit was decided by the trial Court. The trial and the first appellate Court, therefore, held that the suit was not tenable against the City of Nagpur through the Municipal Commissioner and the Deputy Director of Land Records in view of the provisions under Section 384 of the City of Nagpur Corporation Act, 1948 and Section 80 of the Code of Civil Procedure. 3 The findings recorded by both the Courts on the preliminary issue are based on a proper appreciation of the law on that issue. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE