Order

06/02/2023 This civil revision petition is directed against the order dated

06.01.2023 passed by the learned Civil Judge No.1, Alwar (for brevity, “the learned trial Court”) in Civil Suit No.34/482/2022 whereby, an application filed by the petitioner/defendant no.2 (for brevity, “the petitioner”) under Order 7 Rule 11 CPC has been dismissed.

The relevant facts in brief are that the respondent no.1/plaintiff (for brevity, “the plaintiff”) filed a suit for declaration and permanent injunction against the petitioner and the respondents no.2 & 3. An application filed by the petitioner under Order 7 Rule 11 CPC seeking rejection of the plaint for want of compliance of Section 304 (1) of the Rajasthan Municipalities Act, 2009 (for brevity, “the Act of 2009”), has been dismissed by the learned trial Court vide order dated 06.01.2023, impugned herein.

Assailing the order, learned counsel for the petitioner submits that since the relief in the suit for declaration was sought against the defendant no.3, the Municipal Council, Alwar, it was not maintainable in absence of service of a prior notice under Section 304 (1) of the Act of 2009 which is a mandatory requirement. He, therefore, prays that that the revision petition be allowed, the order dated 06.01.2023 be quashed and set aside and the application filed by him under Order 7 Rule 11 CPC be allowed. Learned counsel, in support of his submissions, relies upon an order of this Court dated 28.03.2022 passed in S.B. Civil Revision Petition No.134/2015: Jai Hind Buildcon & Anr. Vs.

Heeralal Sharma & Ors.

Heard. Considered.

Although, the provisions of Section 304 (1) of the Act of

2009 mandate service of a two months’ prior notice upon the concerned Municipality before institution of a suit against it; but, the right can be waived by the Municipality. Indisputably, in the present case, the respondent no.3-Municipal Council, Alwar has not sought rejection of the plaint for want of compliance of Section 304 (1); rather, the application came to be filed by the petitioner, a private respondent. A co-ordinate Bench of this Court has, in case of Suresh Chandra & Dhan Raj Vs. Shri Hanuman Prasad & Ors.; 2006 (4) WLC 452, wherein, while allowing the application filed by the private defendants under Order 7 Rule 11 CPC, the suit came to be dismissed for want of service of notice upon the Municipality under Section 271 of the Rajasthan Municipalities Act, 1959, which is pari materia with the provision of Section 304 of the Act of 2009, held as under:-

“7. This court, vide its order dated

9.9.1986, admitted this second appeal and formulated a substantial question of law as to "whether objection with regard to notice under Section 271 of the Municipalities Act can be waived and it shall be deemed to have been waived if not taken in the written statement?" This Court, in view of two different views on the above question, in the case of Municipal Board, Nimbahera v. Syed Ashaq Ali (1968 RLW 407) and Nagar Palika v. Temple Board, Nathdwara (1981 RLW 239), directed to place the file before Hon'ble the Chief Justice to constitute a larger bench to decide the above question. The order dated 9.9.1986 reads as under:

“Heard learned Counsel for the appellants. One of the substantial question of law that arise in this appeal is as to whether objection with regard to notice Under Section. 271 of the Municipalities Act can be waived and it shall be deemed to have been waived if not taken in the written statement.

Admit. Issue notice.

Learned Counsel for the appellants brought to my notice Municipal Board, Nimbahera v. Syed Ashaq Ali (1968 RLW 407), wherein the learned Single Judge had held that where giving of notice is not alleged in the plaint nor any objection is taken in the written statement for long time, the plea of want of notice is waived; whereas in a later decision in Nagar Palika v. Temple Board, Nathdwara, Anr. Single Judge without referring to the earlier authority has taken the view that the objection