Sangeet Lodha, J.

This petition is directed against the order dated 22.5.17 passed by the Civil Judge, Barmer in Civil Suit No. 12/13, whereby an application preferred by the petitioner under Order 7, Rule 11 CPC r/w Section 304 of the Rajasthan Municipalities Act, 2009 ("the Act"), stands rejected.

2. The facts relevant are that the respondents-plaintiffs filed a suit which is titled as suit for declaration and permanent injunction against the State of Rajasthan and the petitioner herein, seeking the relief that the order passed during the settlement entering the disputed land as Government land and the entries made pursuant thereto may be declared ab-initio void. It is further prayed that by way of permanent injunction, the defendants may be restrained from interfering with the possession of the plaintiffs over the disputed land and may not issue patta of the disputed land or portion thereof.

3. The suit is being contested by inter-alia the petitioner by filing a written statement thereto. During the pendency of the suit, the petitioner preferred an application under Order 7, Rule 11 CPC seeking rejection of the plaint on the ground that before filing the suit seeking declaration, the two months notice disclosing the cause of action was not served upon the petitioner herein as mandated by provisions of Section 304(1) of the Act and therefore, the suit instituted deserves to be rejected.

4. The application has been rejected by the trial court observing that in the written statement filed, no objection regarding noncompliance of the condition precedent as mandated by Section 304 of the Act is taken and thus, the same stands waived and therefore, the petitioner cannot be permitted to raise objection in this regard after a lapse of about three years since filing of the written statement and framing of the issues. Hence, this petition.

5. Learned counsel appearing for the petitioner contended that the plaintiffs have claimed relief of declaration and permanent injunction against all the defendants and therefore, compliance of provisions of Section 304(1) of the Act is mandatory and thus, the suit instituted without service of the notice is not maintainable. Learned counsel submitted that ignoring noncompliance of the mandatory condition precedent, the trial court while passing the order impugned has committed grave illegality and material irregularity. Learned counsel submitted that merely because the objection regarding non service of the notice is not set out in the written statement, the same cannot be treated to be waived and thus, the court below has seriously erred in rejecting the application preferred on behalf of the petitioner. Learned counsel urged that the power under Order 7, Rule 11 CPC can be exercised at any stage of the suit before the conclusion of the trial and thus, the trial court has erred in rejecting the application on the ground that the objection raised belatedly cannot be entertained. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of Saleem Bhai and Ors. v. State of Maharashtra & Ors. 2003 (1) Apex Courts Judgments, 238 (SC) and a decision of this Court in Parshav Nath Jain Mandir Trust v. Avtar Singh, 2012 (1) Civil Court Cases, 462 (Rajasthan).

6. I have considered the submissions of the learned counsel appearing for the petitioner and perused the material on record.

7. The question raised in the petition rolls around provisions of Section 304 of the Act which may be beneficially quoted:

"304. Suits against Municipality or its officers.- (1) No suit shall be instituted against a Municipality or against the Chairperson, Vice-Chairperson, member, officer or servant of Municipality or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice thereof in writing has been, in the case of a Munici