DILIP KUMAR RAHIRA Vs. SANTA KANWARRAM GRIHA NIRMAN

JUDGEMENT

(1.) This revision filed under Section 115 of the Code of Civil Procedure takes exception to the order dated 11.09.2012 (Annexure-A/6), whereby the application filed by the applicant/defendant No.1 under Order 7 Rule 11 of Code of Civil Procedure is rejected by the Court below.

(2.) Draped in brevity, the relevant facts are that the non- applicant Nos.1 to 4 (plaintiffs) instituted a suit for permanent injunction and demolishing the construction. The admitted facts between the parties are that the plaintiffs earlier sent a notice to the Municipal Corporation under Section 401 of the M.P. Municipal Corporation Act, 1956 (hereinafter referred to as "the Act of 1956"). The said notice was sent on 07.04.2012 and the instant civil suit was instituted on 16.04.2012.

(3.) Shri Gulatee, learned counsel for the applicant submits that if plaint averments are examined in juxtaposition to the notice sent under Section 401 of the Act of 1956 dated 07.04.2012, it will be clear that the grievance of the plaintiffs shown in the notice is same which became subject matter of suit subsequently. The learned counsel for the applicant raised singular contention. He submits that the plain reading of Section 401 of the Act of 1956 makes it clear that after sending the notice under Section 401, no suit would lie until the expiration of one month from the date of issuance of notice. Admittedly, in the present case, the suit was instituted within 30 days from the date of issuance of notice. The 30 days are to be counted between issuance of notice and institution of suit and not from the date of issuance of notice till decision on application filed under Order 7 Rule 11 of CPC. Learned counsel for the applicant contended that the Court below has erred in extending the period of limitation before the expiry of which, the suit itself was not tenable. Since no cause of action has arisen before completion of 30 days from 07.04.2012, the suit was not maintainable. He placed reliance on 2000 (2) MPLJ 288 (Municipal Corporation Murwara-Katni Vs. Lalchand Jaiswal) to bolster his submission that as per Section 401 of the Act of 1956, a suit can be instituted only when the time prescribed in the statute is over. The statute, namely, M.P. Municipal Corporation Act, 1056 does not contain any provision which permits the Court to relax the statutory mandate in relation to time prescribed for institution of the suit. Yet another judgment reported in 2005 (3) MPLJ 145 (Jal Praday Karmachari Kalyan Sangh Vs. Ayukt, Nagar Nigam, Jabalpur) is relied upon. Lastly, by placing reliance on a Division Bench judgment reported in 2005 (4) MPLJ 38 (Harmesh Chandra Dua and another Vs. Nagar Palika Nigam, Gwalior), it is submitted that if suit was premature, the proper course was to return the plaint to plaintiffs under Order 7 Rule 10 CPC with liberty to file a fresh suit after completion of statutory period.