Case Note & Summary
The case involves a civil revision application filed by the Commissioner of Akola Municipal Corporation against an order of the Trial Court rejecting its application under Order VII Rule 11 CPC. The plaintiff, Bhalchandra Mahashabde, had filed Regular Civil Suit No.902 of 2012 challenging a communication dated 31-10-2012 and a notice dated 29-10-2012 issued by the Corporation under Sections 260 and 267 of the Maharashtra Municipal Corporations Act, calling upon him to explain why unauthorized construction should not be pulled down. The Corporation sought rejection of the plaint on the ground that the civil court lacked jurisdiction due to the bar under Section 433A of the Act. The Trial Court held that the plaint allegations did not show the bar and that the bar could only be a defence, not a ground for rejection under Order VII Rule 11. The High Court framed the issue of whether the suit is barred by the proviso to Section 433A and whether such bar can be considered under Order VII Rule 11. The Court noted that the notice was under Section 260 and that Section 433A bars civil suits in respect of matters under that section. The Court held that the bar of jurisdiction can be considered even if not apparent from the plaint, if the defendant's application discloses it and the plaint does not negate it. The Court allowed the revision, set aside the Trial Court's order, and rejected the plaint.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Bar of Jurisdiction - The court can consider the bar of jurisdiction under Section 433A of the Maharashtra Municipal Corporations Act while deciding an application under Order VII Rule 11 CPC, even if the bar is not apparent from the plaint alone, if the defendant's application discloses the bar and the plaint allegations do not negate it. (Paras 3-6)
B) Municipal Law - Unauthorized Construction - Section 260 and Section 433A Maharashtra Municipal Corporations Act - Bar of Civil Suit - A suit challenging a notice under Section 260 for pulling down unauthorized construction is barred by the proviso to Section 433A, which ousts the jurisdiction of the civil court in such matters. (Paras 3-6)
Issue of Consideration
Whether a suit challenging a notice under Section 260 of the Maharashtra Municipal Corporations Act is barred by the proviso to Section 433A of the said Act, and whether such bar can be considered under Order VII Rule 11 CPC.
Final Decision
The High Court allowed the civil revision application, set aside the order of the Trial Court dated 4-1-2013, and rejected the plaint in Regular Civil Suit No.902 of 2012.
Law Points
- Order VII Rule 11 CPC
- Section 433A Maharashtra Municipal Corporations Act
- bar of jurisdiction
- plaint rejection
- unauthorized construction notice
Case Details
2013 LawText (BOM) (04) 97
Civil Revision Application No.14 of 2013
Shri A.R. Deshpande for Applicant, Shri S.S. Sarda for Non-Applicant
The Commissioner, Akola Municipal Corporation, Akola
Bhalchandra s/o Govind Mahashabde
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Nature of Litigation
Civil revision application against order rejecting application under Order VII Rule 11 CPC for rejection of plaint.
Remedy Sought
Applicant/defendant sought rejection of plaint on ground of bar of civil court jurisdiction under Section 433A of Maharashtra Municipal Corporations Act.
Filing Reason
Plaintiff filed suit challenging notice under Sections 260 and 267 of the Act for pulling down unauthorized construction.
Previous Decisions
Trial Court rejected the application under Order VII Rule 11 by order dated 4-1-2013.
Issues
Whether a suit challenging a notice under Section 260 of the Maharashtra Municipal Corporations Act is barred by the proviso to Section 433A of the said Act?
Whether the bar of jurisdiction under Section 433A can be considered under Order VII Rule 11 CPC even if not apparent from the plaint?
Submissions/Arguments
Applicant/defendant argued that the suit is barred by Section 433A and plaint should be rejected under Order VII Rule 11.
Non-applicant/plaintiff argued that the bar is a defence and cannot be considered under Order VII Rule 11.
Ratio Decidendi
The bar of jurisdiction under Section 433A of the Maharashtra Municipal Corporations Act can be considered under Order VII Rule 11 CPC even if not apparent from the plaint, provided the defendant's application discloses the bar and the plaint allegations do not negate it. A suit challenging a notice under Section 260 for unauthorized construction is barred by the proviso to Section 433A.
Judgment Excerpts
The questions of law, which arise for consideration of this Court, are – (i) Whether a suit challenging the notice of pulling down unauthorized construction, issued under Section 260 of the Maharashtra Municipal Corporations Act, is barred under the proviso to Section 433A of the said Act? (ii) Whether such a bar can be considered under Order VII, Rule 11 of the Civil Procedure Code?
The Trial Court has held that the plaint allegations are not sufficient to draw an inference that the suit is barred by particular provisions of the said Act.
Procedural History
Plaintiff filed Regular Civil Suit No.902 of 2012 challenging communication dated 31-10-2012 and notice dated 29-10-2012 under Sections 260 and 267 of the Maharashtra Municipal Corporations Act. Defendant filed application under Order VII Rule 11 CPC for rejection of plaint on ground of bar under Section 433A. Trial Court rejected the application on 4-1-2013. Defendant filed Civil Revision Application No.14 of 2013 in the High Court.
Acts & Sections
- Maharashtra Municipal Corporations Act: 260, 267, 433A
- Code of Civil Procedure, 1908 (CPC): Order VII Rule 11
