- (1.) The trial court rejected an application under Order VII, Rule 11(d) of the Code of Civil Procedure filed in Regular Civil Suit No.185 of 2015 holding that in view of the bar created under Section 18 of the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001 (for short "said Act"), the Civil Court has no jurisdiction to entertain, try and decide the suit challenging the order of regularization dated 12.12.2006 passed in exercise of power conferred under Section 3 of the said Act. The lower Appellate Court has dismissed Regular Civil Appeal No.263 of 2015 by its judgment and order dated 05.10.2015. Hence, this second appeal by the original plaintiff.
(2.) On 27.07.2016 this Court passed an order as under: The substantial questions of law involved in this matter are as under : 1. Whether the Courts below could have rejected the plaint under Order VII, Rule 11(d) of the Code of Civil Procedure on the ground that such a suit was barred under Section 18 of the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001 2. Whether there can be a partial rejection of the plaint on the ground that some of the reliefs claimed are barred by the provisions of the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001 The crucial aspect involved in the matter is regarding possession, which is purely a question of fact. Undisputedly, the appellants are the owners of the suit property. However, their possession over it remains a disputed question of fact, as the respondent No.3 claims to be in possession of the property on the basis of the agreement of sale dated 2571990 with the appellants, who are the owners of the suit property. Admit. Shri Kasat, the learned counsel for the respondent Nos.1 and 2, and Shri Gharote, the learned counsel for the respondent No.3, waive service of notice. Put up this matter on 482016. In view of the fact that the matter shall be heard on the next date, there is no possibility of any of the parties creating further complications in the matter to take the risk.
(3.) Shri Abhyankar, the learned counsel appearing for the appellants relying upon the decision of the learned Single Judge of this Court in case of Kishor s/o Ramalu @ Rambhau Telang vs. The Municipal Commissioner, Nagpur Municipal Corporation, Nagpur and others reported in 2015 (4) Mh.L.J. 836, has urged that this Court has taken a view that the jurisdiction of the Civil Court is available for determining the question as to whether infirmity in the action impugned goes to the root of the proceedings, making it invalid or where the basic procedural requirements, which are vital in nature have not been followed. The judgment holds that the jurisdiction to that extent has been preserved. The decision is rendered on the provision of Section 149 of the Maharashtra Regional and Town Planning Act, 1966 which is in substance similar to the provision of Section 18 of the said Act.;