The requirement of notice under Section 98 of the Rajasthan Urban Improvement Act, 1959 is a procedural requirement and not a jurisdictional requirement. The requirement of notice can be waived by the defendant and on such waiver, the court gets jurisdiction to entertain and try the suit.

1. - These revision petitions are directed against the order dated 13.8.2013 passed by the Additional District Judge No.5, Jodhpur Metropolitin, whereby the application filed by the petitioner under Order 7, Rule 11 CPC has been rejected.

2. The brief facts may be noticed thus : the respondent No.1 filed a suit for cancellation of sale deed, permanent injunction and compensation against the then Urban Improvement Trust and certain private parties, in whose favour the sale deed was executed by the petitioner. The relief claimed in the suit interalia including cancellation of the sale deed and permanent injunction against the defendant No.1 - private party. It appears that when for a long time, no written statement was filed by the petitioner-Trust, the written statement was closed. However, it is pointed out that subsequently, the written statement along with application under Section 148 CPC has been filed for taking on record the said written statement, but no order on the said application has been filed and still the written statement is not on record.

3. It appears that to getover the said situation, wherein the written statement on behalf of the petitioner is not on record, an application under Order 7, Rule 11 CPC was filed by the petitioner inter-alia on the ground that the plaintiff has not complied with the mandatory provisions of Section 98 of the Rajasthan Urban Improvement Act, 1959 ('the Act') and therefore, the suit was not maintainable.

4. Though no reply to the said application was filed by the plaintiff. The learned trial court after hearing the parties dismissed the application under Order 7, Rule 11 CPC.

5. It is submitted by learned counsel for the petitioner that the language of Section 98 of the Act clearly envisage a notice and admittedly no notice was issued by the plaintiff before instituting the suit and as such, the same was apparently barred under Section 98 and the plaint was liable to be rejected under the provisions of Order 7, Rule 11 (d) CPC, however, the trial court without adverting to the said provision in proper perspective has dismissed the application.

6. I have considered the submissions made by learned counsel for the petitioner.

7. Section 98 of the Act provides for two months' notice in writing in a case where the suit is in respect of an act purporting to be done under the provisions of the Act. Sub-section (4) of Section 98 provides that the said requirement would not apply for a suit, wherein the relief claimed is an injunction of which the object would be defeated by giving of the notice.

8. The similar nature provision under Section 241 of the Rajasthan Municipalities Act, 1959 came to be interpreted by this Court in Suresh Chandra and Dhan Raj v. Shri Hanuman Prasad, S.B. Civil Second Appeal No. 173/1986 , wherein on a reference made to the Division Bench, the Division Bench answered the same as under:-

"(1)- Section 271 of the Act aforesaid is not a provision of public policy but one for the benefit of the municipality or the persons mentioned therein.

(2) Giving of notice is a condition precedent to exercise jurisdiction. But, this being a mere procedural requirement, the same does not go to the root of jurisdiction in true sense of the term. The indication is clear that the requirement of notice on expiry of a particular period has no jurisdictional effects.

(3) Looking to this nature of the provision of the notice the same is capable of being waived by the defendants and on such waiver the court gets a jurisdiction to entertain and try the suit.

(4) The question whether in fact there is waiver or not would necessarily depend on facts of each case, and is liable to be tried by the same court if raised."

9. Based on the said answer as noticed above, in, the second appeal in which the reference was made came to be decided and the suit which was dismissed by the trial court exercising powers under Order 7, Rule 11 (d) CPC was reversed in second appeal and the matter was remanded bac