JUDGMENT - Lodha R.M., J.: Heard.

2. Admit. Ms. Patil waives service for respondent. By consent appeal is heard finally at this stage.

3. The impugned order dated 17-2-1999 is patently erroneous and cannot be sustained. While hearing the notice of motion wherein temporary injunction was sought by the plaintiff, the trial Court has dismissed the suit itself on the ground that it has no jurisdiction, reason being non-compliance of provisions contained in section 527 of the Bombay Municipal Corporation Act. The trial Court failed to appreciate the subtle distinction between the jurisdiction of the Court and non-maintainability of claim. The object of the notice required under section 527 of the Bombay Municipal Corporation Act is to give sufficient time to Bombay Municipal Corporation and/or its authorities to consider the prayer for redressal of plaintiff's grievance without litigation. Section 527 reads thus :

527(1) No suit shall be instituted against the corporation or against the Commissioner, the General Manager, or the Director or a Deputy Commissioner or against any municipal officer or servant, in respect of any act done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act-

(a) until the expiration of one month next after notice in writing has been, in the case of the corporation, left at the chief municipal office and, in case of the Commissioner, the General Manager or the Director or of a Deputy Municipal Commissioner or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney or agent, if any, for the purpose of suit; nor

(b) unless it is commenced within six months next after the accrual of the cause of action.

(2) At the trial of any such suit -

(c) the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice delivered or left by him as aforesaid;

(d) the claim, if it be for damages shall be dismissed if tender of sufficient amends shall have been made before the suit was instituted or if, after the institution of the suit, a sufficient sum of money is paid into Court with costs.

(3) When the defendant in any such suit is a municipal officer or servant, payment of the sum or of any part of any sum payable by him in or in consequence of the suit whether in respect of costs, charges, expenses, compensation for damages or otherwise, may be made, with the previous sanction of the standing committee or the Bombay Electric Supply and Transport Committee, from the municipal fund or the Bombay Electric Supply and Transport Funds, as the case may be.

4. It is always open to the Bombay Municipal Corporation and/or its concerned authorities to waive notice under section 527 of the Bombay Municipal Corporation Act and they may be estopped by conduct from pleading the want of notice. If the Bombay Municipal Corporation or for that matter its concerned authorities want to rely on the plea of want of notice or its invalidity, it is for them to raise specific issue in the written statement. Where the Bombay Municipal Corporation fails to raise specific plea of want of notice at the earliest, by its conduct it may be estopped from pleading the want of notice at late stage or where the Corporation does not file the written statement, question of raising an issue about want of notice may not arise. Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. The procedure for framing of issues is provided in Order XIV, Rule 1, Civil Procedure Code. The preliminary issue of jurisdiction for being decided under section 9-A also has to be framed in consonance with Order XIV, Rule 1, Civil Procedure Code. The question whether the notice under section 527 has been waived or not is a question

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