VASANT AMBADAS PANDIT Vs. BOMBAY MUNICIPAL CORPORATION

JUDGEMENT

(1.) This reference to the Full Bench arises out of a suit instituted by the plaintiff on 1st July, 1970 in the Bombay City Civil Court. The plaintiff institued suit (no. 4816 of 1970) against the Bombay Municipal Corporation. The suit is for a declaration that the notice of the corporation, defendant No. 1 under section 351 of the Act dated 29th March, 1969 was illegal void bad in law and unenforceable. The suit is also for an injunction restraining respondent No. 1 from enforcing the said notice dated 29th March, 1969. At a later stage, the landlord of the suit premises also were impleaded as defendants at their request. Defendant No. 1 filed its written statement on 14th August, 1970. In paragraph No. 1 of the written statement, defendant No. 1 raised a plea that the suit is bad for want of statutory notice under section 527 of the Bombay Municipal Corporation, 1888 (hereinafter referred to as "the Act"). In spite of this plea being raised in paragraph 1, defendant No. 1 waived the said objection saying that "However, in order to avoid delay these defendants are advised to waive the objection as regards the want of a statutory notice". Interim injunction was granted in due course.

(2.) The suit appears to have come up for direction before the learned Principal Judge on 4th February, 1981. The learned Principal Judge thought that it was a clear case where the plaint was liable to be rejected for want of jurisdiction as previous statutory notice required under section 527 of the Act was not served by the plaintiff on defendant No. 1. In support if this view of this the learned Principal Judge relied on a judgment of this Court (Dated 7th April, 1975 in A.O. No. 92 of 1975), (decided by Shah, J.). The learned Principal Judge also relied on paragraph 1 of the written statements to hold that such an objection is raised by defendant No. 1. In accordance with this view, the learned Principal Judge rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure and vacated the injunction granted earlier on 1st July 1970.

(3.) The plaintiff preferred an appeal against the said order of the learned Principal Judge being First Appeal No. 170 of 1981. When the matter came up before the learned Single Judge of this Court (Sawant, J.) for admission, respondent No. 1 corporation also appeared to oppose the admission of the said appeal. The appellant relied on waiver of the objection as to want of statutory notice under section 527 of the Act recorded by the defendant No. 1 in paragraph 1 of the written statement itself. The learned Advocate for the respondent No. 1, contended that the Court could have no jurisdiction on even to consider the question of waiver where the suit is found to have been instituted without serving notice as contemplated under section 527 of the Act. In support of this contention, the learned Advocate for respondent No. 1 relied on a Division Bench judgment of this Court in the case of (Ebrahimbhai v. State), 1974 Mh.L.J. 562 : A.I.R. 1975 Bom. 13. The learned Single Judge thought that certain observations in the said judgment are capable of conflicting interpretations. Hence he referred the matter to Full Bench by his order dated 6th March, 1981.