Case Note & Summary
The appellants, Noor Mohd. Shami Shaikh and another, filed First Appeals against a common order dated 6.2.2013 passed by the City Civil Judge, Mumbai, in Chamber Summons No.784 of 2011 and Chamber Summons No.1317 of 2012 in L.C.Suit No.2145 of 2009. The learned City Civil Judge held that the plaint in the suit was bound to be rejected under Order 11 Rule 7(d) of the Code of Civil Procedure, 1908 (CPC) on the ground that pre-suit statutory notices as mandatorily required under Section 527 of the Mumbai Municipal Corporation Act, 1888 (MMC Act) and Section 164 of the Maharashtra Cooperative Societies Act, 1960 (MCS Act) were not issued and served upon the public authorities, namely the Municipal Corporation of Greater Mumbai (MCGM) and the Registrar of Cooperative Societies. The suit pertained to a plot of land bearing C.T.Survey No.1589, Byculla Division, owned by MCGM, where M/s NAN Developers Pvt. Ltd. was the developer. The plaintiffs claimed possession of Room No.16, 'C' Block in Afzal Chawl, Mumbai Central. The tenants and occupants had agreed to redevelopment under the Development Control Regulations, and an agreement was entered into on 27.9.2006 with the developer. The plaintiffs alleged that the developer failed to provide transit accommodation and other benefits. The court found that the plaint contained averments regarding Development Control Regulations issued by MCGM, and thus notices under Section 527 of the MMC Act and Section 164 of the MCS Act were mandatory. The appeals were dismissed, upholding the rejection of the plaint.
Headnote
A) Civil Procedure - Rejection of Plaint - Order 11 Rule 7(d) CPC - Mandatory Pre-Suit Notice - The court held that the plaint was bound to be rejected as the plaintiffs failed to issue and serve mandatory statutory notices under Section 527 of the Mumbai Municipal Corporation Act, 1888 and Section 164 of the Maharashtra Cooperative Societies Act, 1960 upon the public authorities, namely MCGM and Registrar of Cooperative Societies, before filing the suit. (Paras 1-2)
Issue of Consideration
Whether the plaint in L.C.Suit No.2145 of 2009 is liable to be rejected under Order 11 Rule 7(d) of the Code of Civil Procedure, 1908 for non-compliance with mandatory pre-suit statutory notices under Section 527 of the Mumbai Municipal Corporation Act, 1888 and Section 164 of the Maharashtra Cooperative Societies Act, 1960.
Final Decision
The appeals are dismissed. The order dated 6.2.2013 passed by the City Civil Judge, Mumbai, rejecting the plaint under Order 11 Rule 7(d) CPC is upheld.
Law Points
- Mandatory pre-suit notice
- Rejection of plaint
- Order 11 Rule 7(d) CPC
- Section 527 Mumbai Municipal Corporation Act 1888
- Section 164 Maharashtra Cooperative Societies Act 1960
Case Details
2013 LawText (BOM) (10) 117
First Appeal No.302 of 2013 with First Appeal No.303 of 2013 with Civil Application No.1031 of 2013 in First Appeal No.303 of 2013
Mr. Y.E. Mooman i/b. Manisha Gawde Advocate for the Appellant, Mrs. Geeta Joglekar Advocate for the Respondent No.2, Mr. Y.S. Naidu Advocate for the Respondent No.4
Noor Mohd. Shami Shaikh & Anr.
Maharashtra Housing & Development Board and Ors.
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Nature of Litigation
Civil appeals against order rejecting plaint for non-compliance with mandatory pre-suit statutory notices.
Remedy Sought
Appellants sought to set aside the order rejecting the plaint and to allow the suit to proceed.
Filing Reason
Appellants filed suit claiming possession of a room and alleging breach of redevelopment agreement by developer.
Previous Decisions
City Civil Judge, Mumbai, by order dated 6.2.2013, rejected the plaint under Order 11 Rule 7(d) CPC for non-issuance of mandatory notices under Section 527 MMC Act and Section 164 MCS Act.
Issues
Whether the plaint is liable to be rejected under Order 11 Rule 7(d) CPC for non-compliance with mandatory pre-suit notices under Section 527 MMC Act and Section 164 MCS Act.
Submissions/Arguments
Appellants argued that the suit was maintainable and notices were not required.
Respondents contended that mandatory notices were not served on public authorities, rendering the plaint liable for rejection.
Ratio Decidendi
The plaint must be rejected under Order 11 Rule 7(d) CPC if mandatory pre-suit statutory notices under Section 527 of the Mumbai Municipal Corporation Act, 1888 and Section 164 of the Maharashtra Cooperative Societies Act, 1960 are not issued and served upon the concerned public authorities before filing the suit.
Judgment Excerpts
the plaint in L.C.Suit No.2145 of 2009 is bound to be rejected under Order 11 Rule 7(d) of the Code of Civil Procedure on the ground that presuit statutory notices as mandatorily required under Section 527 of Mumbai Municipal Corporation Act, 1888, and as required under Section 164 of the Maharashtra Cooperative Societies Act, 1960, as required according to law, were not issued and served upon the Public Authorities namely Municipal Corporation of Greater Mumbai (MCGM) and Registrar of the Cooperative Societies.
Procedural History
The appellants filed L.C.Suit No.2145 of 2009 in the City Civil Court, Mumbai. The respondents filed Chamber Summons No.784 of 2011 and Chamber Summons No.1317 of 2012 seeking rejection of the plaint. The City Civil Judge allowed the chamber summons and rejected the plaint by order dated 6.2.2013. The appellants appealed to the Bombay High Court by filing First Appeal No.302 of 2013 and First Appeal No.303 of 2013.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 11 Rule 7(d)
- Mumbai Municipal Corporation Act, 1888 (MMC Act): Section 527
- Maharashtra Cooperative Societies Act, 1960 (MCS Act): Section 164
