ORAL ORDER

Heard learned advocate Mr.Hemant Munshaw for the petitioner.

2. This Civil Revision Application under Section 115 of the Code of the Civil Procedure, 1908, is directed against order dated 15.2.2021 passed by the learned 5th Additional Senior Civil Judge, Gandhinagar, below Exhibit 8 in Regular Civil Suit No.151 of 2017, whereby learned Judge below dismissed the said application of the petitioner- original defendant filed under Order VII Rule 11, CPC for rejection of the plaint.

3. In application Exhibit 8, three grounds were broadly elaborated for rejection of the plaint. First was that the suit was barred by principle of res judicated. In support of this ground, certain proceedings in the nature of Writ Petition (PIL) No.98 of 2015 and certain decision of the Supreme Court were referred to to emphasis that in view of the principles laid down in those Public Interest Petitions before this Court and the Appellate Court, the suit was not maintainable, looking to the nature of relief prayed for therein. The second ground was that the plaintiff did not disclose the cause of action. Thirdly, it was contended that since notice under Section 487 of the Gujarat Provincial Municipal Corporations Act, 1949 was not served on the defendant No.1 -Corporation, the plaint was liable to be rejected in exercise of powers under Order VII Rule 11, CPC.

3.1 In order to appreciate the contentions about the prayer for rejection of the plaint, details of the averments in the Regular Civil Suit instituted by the plaintiff may be looked into. The suit was for declaration and permanent injunction. The permanent injunction was sought to restrain the defendant and their agents and servants demolishing the construction raised in the plot area of the suit property.

3.2 The plaintiff claimed power of attorney holder of deceased Amrutbhai Sukhabhai Vadiya and stated that he was entitled to deal and administer the suit property which was Plot No.1336/2 admeasuring 196 and 87 square meters in Sector 7/D in Gandhinagar Township owned and possessed by the plaintiff. This property was allotted to said deceased Amrutbhai by District Collector on 30.3.1992. It was stated that on 28.11.1998 the said owner and his heirs executed power of attorney in favor of the plaintiff. It was further averred that within the boundary of the plot further in the margin area certain construction was raised. The said construction was regularized by Gandhinagar Urban Development Authority on 21.9.2013 upon payment of penalty of Rs.12,000/- which was paid by the plaintiff. It was stated that further construction was made. It was stated that neighbour of the plaintiff complained to the authorities and certain writings were got executed from the plaintiff in the nature of undertaking for removal of the said construction. The plaintiff was made to execute such undertaking in the office of defendant which stated that before 31.10.2017, he would remove the construction.

3.3 The plaintiff stated that in Gandhinagar Township area, illegal construction are raised but the authorities have not taken any action. However, the authorities used to enter in correspondences with the plaintiff regarding the construction. Responding to the same, the plaintiff sent notice dated 10.10.2017 through his advocate. It is stated that the authorities are bent upon to demolish the construction. It was averred that if the plaintiff waits to receive the response of the authorities serious prejudice may cause to him if the construction is in the meantime razed to the ground. By stating such facts and premise, the suit was instituted.

3.4 The cause of action was pleaded in paragraph No.5 of the plaint reiterating that on 12.9.2013 certain construction was regularized by Gandhinagar Urban Development Authority by recovering the fine. The cause of action to institute the suit, it was stated, arose when the neighbours made written complaints to the authorities and authorities sent notice and since they executed wr