NAGAR PALIKA NATHDWARA Vs. TEMPLE BOARD NATHDWARA

JUDGEMENT

(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- *********

(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.