- (1.) THIS revision petition under section 115, C. P. C. is directed against the order dt. March 3. 1980 of the learned Munsif, Nathdwara the passed in Civil Suit No. 84 of 1977 holding that plaintiff-non-petitioner's suit is maintainable in the absence of notice under sec 271 (2) of the Rajasthan Municipalities Act (XXXVIII of 1959), hereinafter referred to as the Act*.
(2.) THE plaintiff-non-petitioner instituted a suit for declaration and permanent prohibitory injunction against the defendant-petitioner in the Court of Munsif-Nathdwara on July 11, 1977. In para 4 of the plaint, it has been averred that the land described in paras 2 and 3 of the plaint measuring 1598 sq. ft. is of the plaintiff's ownership and possession and that the defendant wants to take possession of it. THE word used in the plaint are- ********* The plaintiff submitted an application for erecting the boundary wall in respect of the land described in para 3 of the plaint to the defendant. But that application was dismissed by the defendant holding that the land is open one and from the plaintiff's evidence, it has not been proved to be its ownership. An appeal was lodged against the order dated December 31, 1976 of the dismissal of the application for grant of possession. That appeal was also dismissed by the Collector, Udaipur vide his judgment dated June 26, 1977. In these circumstances, it was prayed that it may be declared that the land in question belongs to it, as the plaintiff is in possession of it and further as the defendant wants to forcibly take its possession by erecting the bus stand on it, for which it has no authority to do so permanent prohibitory injunction may be issued. The plaintiff instituted the suit for the two reliefs of declaration and permanent prohibitory injunction as aforesaid. The defendant filed the written statement on August 25, 1977 contesting the suit on various grounds. In the written statement no specific objection to the effect that the suit is not maintainable under S. 271 (2) of the Act, was raised. The learned Munsif framed the issues on July 27, 1978 Thereafter, on the same day, the court directed that as issue No. 4 relates to jurisdiction, it should be decided first and further that the parties should produce their evidence in respect thereof. It was first posted for the evidence of the defendant in respect of issue No 4. The evidence of the defendant was closed on February 16, 1979. However, an application was moved on behalf of the defendant on that very day that the evidence in respect of issue No 4 may also be recorded with the evidence of other issues. That application was however, dismissed by the learned Munsif by his order dated April 4. 1979 and the order producing the evidence of the defendant was kept intact and issue no. 4 was decided against the defendant. Thereafter, the case was posted for evidence of the plaintiff on the remaining issues on July 5. 1979. On July 5 1979, an application was moved on behalf of the defendant stating that the plaintiff has instituted the suit without giving two months' notice against the Municipal Board and so, it should be dismissed. Arguments on the application were heard on February 21, 1980. The learned Munsif by the impugned order dated March 3, 1980 held that the suit as framed in view of the reliefs asked for by the plaintiff is maintainable in the absence of the notice under section 271 (2) of the Act. Hence this revision by the defendant. A show cause notice for admission was issued to the defendant on July 11, 1980 and the record was also ordered to be requisitioned. On November 12, 1980, both the learned counsel appearing for the parties agreed that this revision petition may finally be disposed of. On account of this agreement, the court ordered that this revision petition may be listed for admission and hearing on November 27, 1980. Record in this case has already been received and the learned counsel appearing for the parties also reiterated that this revision petition may finally be disposed of. I have heard Mr. N. P. Gupta, learned counsel for the defendant-petitioner and Mr. R. P. Dave, learned counsel for the plaintiff non-petitioner.
(3.) IT was contended by the learned counsel for the petitioner that having regard to the averments made in the plaint and the reliefs asked for by the plaintiff, it is abundantly clear that the main relief in the suit is of declaration and the ancillary relief is injunction; that there are two reliefs (declaration and permanent prohibitory injunction) claimed by the plaintiff; and that in view of this, the learned Munsiff has no jurisdiction to proceed with the trial of the suit in the absence of notice under section 271 (2) of the Act, for the suit is barred under section 271 (2) of the Act and he should have rejected it under 0. 7 r. 11 (d) C. P. C. On the other hand. Mr. R. P. Dave, learned counsel for the plaintiff-non-petitioner supported the impugned order and also pressed for my consideration that in the absence of a specific plea in the written statement regarding non-issuance and non-service of the notice under section 271 (2) of the Act, in the facts and circumstances of this case, the defendant will be deemed to have waived the objection. He also contended that the objection raised by the defendant-petitioner in the application dated July 5, 1979 should not be examined, for, there is no provision of law under which the defendant can be allowed to raise such an objection without incorporating it in the written statement. I have bestowed my earnest consideration to the rival contentions raised by the learned counsel for the parties. In the first instance, I consider it proper to deal with the argument raised by the learned counsel for the plaintiff-non-petitioner to the effect whether it is open to the defendant to take such an objection in the application though it was not taken in the written statement. This argument necessiates the examination of the provisions contained in O. VII r. 11. C. P. C. ;