Renuka CRA 472 of 2009

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO. 472 OF 2009

1. Murzban Nusserwanji Khariwala

2. Manijeh Burjor Bandrawala

3. M.R.P. Enterprises

...Applicants

V/s.

1. Kakad Co-operative Housing Society Ltd.

2 The Municipal Commissioner of Greater

Bombay.

3. The Municipal Corporation of Greater Bombay

4. The Additional Collector and Competent

Authority (ULC)

5. Renu M. Tilwani

6. White Orchid Co-operative Housing Society Ltd.

...Respondents

WITH

INTERIM APPLICATION NO. 1587 OF 2026

IN

CIVIL REVISION APPLICATION NO. 472 OF 2009

Kakad Co-operative Housing Society

Limited

...Applicant

IN THE MATTER OF

Murzban Nusserwanji Khariwala and Ors. ...Applicants

V/s.

Kakad Co-operative Housing Society Ltd.

and Ors.

...Respondents

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WITH

INTERIM APPLICATION NO. 7317 OF 2026

IN

CIVIL REVISION APPLICATION NO. 472 OF 2009

White Orchid Co-operative Housing Society

Ltd.

...Applicant

IN THE MATTER OF

Murzban Nusserwanji Khariwala and Ors. ...Applicants

V/s.

Kakad Co-operative Housing Society Ltd.

and Ors.

...Respondents

________________

Mr. Naushad Engineer, Senior Advocate with Mr. Aditya Kavale i/b

Zohair and Co., for the Applicant.

Mr. Jagdish N. Jayale i/b Mr. Rajesh Gehani, for Respondent No. 1.

Mr. Seegarla Shrikant, for Respondent No. 6 and for Applicant in IA No.

7317/2026.

Mr. Santosh Mali, for MCGM, Respondent.

________________

CORAM: SANDEEP V. MARNE, J

RESERVED ON: 8 SEPTEMBER 2026

PRONOUNCED ON: 22 SEPTEMBER 2026

JUDGMENT:

1) Applicants, who are original Defendant Nos. 4 to 6, ha ve

invoked Revisional Jurisdiction of this Court under Section 115 of the

Code of Civil Procedure, 1908 (Code) for assailing the order dated 14 July

2009 passed by the learned Judge, City Civil Court dismissing the Notice

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of Motion taken out by them seeking rejection of the Plaint under Order

VII Rule 11 of the Code.

2) Brie�y stated, facts of the case are that Applicants Nos. 1

and 2 / Defendant Nos. 4 and 5 conveyed a Plot of land admeasuring

2676.86 sq.m. situated at Pali Road, Bandra West, Mumbai alongwith FSI

admeasuring 18000 sq.ft. to one M/s. Kakad Investments vide Deed of

Conveyance dated 27 February 1979. According to them, under the

conveyance, the balance FSI over and above 18000 sq.ft. was to belong to

Applicant Nos. 1 and 2. On the same day i.e. 27 February 1979, Kakad

Investments executed Indenture of Lease in respect of land admeasuring

1005.03 sq.m. in favour of Applicant Nos. 1 and 2 for a period of 999

years at a nominal annual rent of Re. 1/-. According to Applicants, the

Lease Deed empowered Applicant Nos. 1 and 2 to utilize the balance FSI

over and above 18000 sq.ft. arising out of the larger property. On 21

December 1980, a Deed of Modi�cation was executed, increasing FSI

share of Kakad Investments to 20662 Sq. Ft. During 1979-81, M/s Kakad

Investments constructed a building named Kakad Apartments and sold

�ats therein to various purchasers, who formed Plaintiff-Society (Kakad

Co-operative Housing Society Ltd.), who is Respondent No. 1 in the Civil

Revision Application. In 1983, Plaintiff �led Suit No. 304 of 1983 against

Kakad Investments seeking conveyance of a larger property. On 23

February 1983, Consent Terms were �led in Suit No. 304 of 1983 between

Plaintiff-Society and Kakad Investments by which the entire larger

property admeasuring 2676.86 sq.m. was conveyed in favour of Plaintiff,

subject to 999-year lease in favour of Applicants Nos. 1 and 2.

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3) On 26 April 1996 and 13 May 1996, Applicants Nos. 1 and 2

executed registered Deeds of Assignment, assigning the lease to

Applicant No. 3 / Defendant No. 6. Applicants submitted plans for

construction of 12 story building known as ‘White Orchid’ in the leased

property in exercise of rights conferred under the lease by utilizing the

balance FSI of the larger property. Construction of the building White

Orchid was completed in 1998. On 7 September 1998, Plaintiff �led Writ

Petition No. 1801 of 1998 challenging the permissions in respect of the

building White Orchid. According to Plaintiff, the Petition was dismissed

on account of involvement of disputed questions of facts which

warranted �ling of a suit. In the meantime, Occupancy Certi�cate (OC)

was issued in respect of the building White Orchid on 27 August 1999.

The �at purchasers of the building formed White Orchid Co-operative

Housing Society Ltd. (Respondent No. 6/ Defendant No. 8).

4) In the above background, Plaintiff has �led LC Suit No. 2591

of 2000 before the City Civil Court inter alia challenging building

permissions and sanctioned plans in respect of the building White

Orchid and seeking its demolition. Applicants �led written statements.

Issues were framed on 6 June 2005, which were recast on 18 January

2008. Applicants �led Notice of Motion at Exh-14 under Order VII Rule

11 of the Code seeking rejection of the Plaint on the ground that the suit

is barred under provisions of Section 149 of the Maharashtra Regional

and Town Planning Act, 1966 (MRTP Act). By order dated 14 July 2009,

Applicants’ motion has been dismissed by the City Civil Court, which

order is subject matter of challenge in the present Revision Application.

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By order dated 21 January 2010, the Revision Application has been

admitted and proceedings of the Suit have been stayed.

5) Mr. Engineer, the learned Senior Advocate appearing f or

Applicants submits that the City Civil Court has grossly erred in rejecting

the Motion under Order VII Rule 11 of the Code. That the suit is clearly

barred under Section 149 of the MRTP Act. That the suit challenges

sanctions/permissions/plans granted by Municipal Corporation of

Greater Mumbai (MCGM) relating to the White Orchid building and that

therefore, there is express bar under Section 149 of the MRTP Act. He

takes me through the prayers of the suit and submits that the whole suit

is founded as a challenge to the plans and development permissions.

That development permissions are also to be considered as ‘orders’

passed under Section 45 of the MRTP Act and that therefore the suit

cannot be �led challenging the same under Section 149 of the MRTP Act.

In support, he relies on judgments of this Court in Arihant Construction

V/s Subhash Kesharmal Barlota and Ors.

1

, Sujala Yeshwant Nitsure V/s

Municipal Corporation of City of Pune and Ors.

2

, Roha Municipal

Council V/s Shahin Mohamed Akbar Alekar

3

and Juhi Infra Build LLP

V/s Yasin Mahamudiya Patel

4

.

6) Mr. Engineer further submits that the impugned order

erroneously refers to the purported dispute as to title as a ground to

reject application under Order VII Rule 11 of Code though in fact no

reliefs are sought in the suit regarding title. He submits that only the

1 2015 (6) Mh.L.J. 262

2 1996 (2) BCR 503

3 2015 SCC OnLine Bom 5105

4 2025 SCC OnLine Bom 3828

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reliefs sought in the suit are required to be taken into consideration and

mere narration of events is irrelevant. That if reliefs are barred by law,

the plaint is required to be rejected under Order VII Rule 11 of the Code.

In support he relies on judgment of the Apex Court in Rajendra Bajoria

and Ors V/s Hemant Kumar Jalan And Ors .

5

Mr. Engineer further

submits that since the primary relief is barred under Section 149 of

MRTP Act, the consequential reliefs can also not be granted. In support,

he relies on judgments of this Court in Prashant Dattatray Wazalwar

V/s Sudha Baburao Lokhande and Ors.

6

and Nine Media and

Information Services Ltd. V/s Hero Honda Motors Ltd.

7

He submits that

prayer clause (g) in the suit regarding challenge to the permission under

the Urban Land (Ceiling and Regulation) Act, 1976 (ULC Act) stands

abated on account of repeal of the said Act.

7) Mr. Engineer further submits that the Trial Court has erred

in rejecting the application under Order VII Rule 11 of the Code on the

ground of the same being �led at a belated stage. Relying on judgments

of the Apex Court in Church of Christ Charitable Trust and Educational

Charitable Society V/s Ponniamman Educational Trust

8

and ITC Ltd.

V/s Debts Recovery Appellate Tribunal and Ors.

9

, he submits that the

Application can be �led at any stage of the suit and that mere framing of

the issues is an irrelevant factor. He submits that the Trial Court has

erred in considering the factor of failure to raise objection of bar of

5 (2022) 12 SCC 641

6 2017 (5) MhLJ 696 : 2017 SCC OnLine Bom 2898

7 2017 (1) MhLJ 566 : 2016 SCC OnLine Bom 10706

8 (2012) 8 SCC 706

9 (1998) 2 SCC 70

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jurisdiction in the written statement when application under Order VII

Rule 11 of the Code can be �led even without �ling written statement.

8) Lastly, Mr. Engineer submits that the application f or

amendment of plaint �led by the Plaintiff itself indicates that the plaint

does not contain any relief for declaration of title. Relying on judgment

of this Court in Prakash G. Goyal and Ors. V/s Sayyed Ayaz Ali s/o

Makdoom Ali and Ors.

10

, he submits that Court need not await decision

of amendment application and can proceed to reject the plaint under

Order VII Rule 11 of the Code. He accordingly prays for setting aside the

impugned order.

9) Mr. Jayale, the learned counsel appearing for Responde nt

No.1/Plaintiff opposes the Revision Application submitting that the Trial

Court has rightly rejected the baseless application �led by the Applicants

seeking rejection of the Plaint. That Applicants have erroneously eaten

into the lawful rights of the Plaintiff-Society by illegally constructing the

building White Orchid. That the suit clearly involves disputes relating to

title. That the challenge to development permissions is essentially raised

to protect rights of the Plaintiff-Society in the land and FSI �owing out

of the same. He relies on judgment of this Court in Raja Bahadur

Motilal and Anr. V/s State of Maharashtra and Ors.

11

in support of his

contention that suit is the correct remedy for challenging development

permissions. That when writ petition was �led challenging the

development permission, the same was opposed by Applica nts

contending that complicated issues could not be decided in writ

10 2018 (5) Mh.L.J 830

11 2003 (1) Bom CR 251

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jurisdiction and when suit is �led, dismissal of the same is sought on the

ground that there is bar of jurisdiction under Section 149 of the MRTP

Act. He submits that White Orchid Co-operative Housing Society Ltd. has

�led Suit No. 1489 of 2019 in this Court claiming ownership in respect of

entire FSI (barring 20662 sq.ft.) in respect of larger plot of which

Plaintiff-Society is the owner. That therefore rejection of the Plaint

would cause severe prejudice to the Plaintiff since it wants to establish

its rights qua the entire larger plot as well as FSI �owing thereof. That

Plaintiff has already �led Chamber Summons for amendment of the suit

for adding necessary averments and reliefs relating to TDR in respect of

the land. That the Chamber Summons is not getting decided on account

of stay of the suit. He accordingly prays for dismissal of the Revision

Application so that the suit can be decided.

10) Rival contentions urged on behalf of the parties now fall for

my consideration.

11) Applicants are aggrieved by rejection of their application at

Exh-14 seeking rejection of the Plaint under order VII Rule 11 of the

Code. According to the Applicants, there is an express bar to the suit

under provisions of Section 149 of the MRTP Act.

12) Plaintiff-Society is aggrieved by construction of building

White Orchid by the Applicants on the leased property by consuming FSI

�owing out of the entire land conveyed in favour of the Plaintiff-Society.

The Plaintiff earlier �led Writ Petition No. 1801 of 1998 in this Court

challenging various development permissions issued in respect of the

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building White Orchid. The Petition came to be dismissed by this Court

on 5 October 1998. After dismissal of the Petition, LC Suit No. 2591 of

2000 is �led by the Plaintiffs. It is contended by Mr. Jayale that the Writ

Petition was disposed of on account of involvement of disputed

questions of fact. At this stage, I do not wish to delve deeper into the

aspect as to whether the suit is maintainable in the light of disposal of

the Writ Petition and whether the Suit is barred by the principles of res

judicata or not. The Plaint cannot be rejected under Order VII Rule 11 of

the Code on the ground that the Suit is barred by res judicata. In the

event the Plaint in the Suit survives and the Suit is taken to trial, the said

issue can be decided.

13) The Suit �led by the Plaintiff-Society is essentially directed

against construction of the building White Orchid. It would be apposite

to reproduce the substantive prayers in the Plaint, which read thus:

a) That this Hon’ble Court be pleased to grant leave under order 2 Rule 2 of the

Civil procedure Code.

b) That the building proposal plans bearing no. CE/414/WS/AH sanctioned on

13th July 1996 and the amended building proposal plans bearing no.

CE/414/WS/AH sanctioned on 24th September 1996 and 10th June 1997 and all

other amended building proposal plans sanctioned thereafter by defendant

nos.1 and 2 by themselves and their of�cers for the construction of the

proposed building comprising of stilts plus 12 upper �oors known as "White

Orchid" on the said property situate at Plot no.4 TPS III, Pali Road, Bandra (W).

Mumbai 400 050 bearing CTS Nos. F/867 to F/869 admeasuring 2491.62 sq.

meters i.e. 2980 sq. yards or thereabouts more particularly described in Exhibit

"A" hereto be declared illegal, unenforceable, bad-in-law and null and void;

c) That the defendant nos.1 and 2 by themselves and their of�cers, be ordered

and decreed to quash cancel, revoke and/or set aside the building proposal

plans bearing no. CE/414/WS/AH sanctioned on 13th July 1996 and the

amended building proposal plans bearing no. CE/414/WS/AH sanctioned on

24th September 1996 and 10th June 1997 and all other amended building

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proposal plans bearing no. CE/414/WS/AH, sanctioned for the construction of

the proposed building comprising of stilts plus 12 upper �oors known as

"White Orchid" on the said property situate at Plot no. 4 TPS III, Pali Road,

Bandra (W), Mumbai 400 050 bearing CTS Nos. F/867 to F/869 admeasuring

2491.62 sq. meter i.e 2980 sq.yards or thereabouts, more particularly described

in Exhibit "A" hereto;

d) That the new twelve storey building on stilts known as "White Orchid"

constructed by defendant nos.4, 5 and 6 without the consent of the plaintiffs as

additions and alterations to the existing ground �oor cottage on the said

property situate at plot no.4, TPS III, Pali Road, Bandra (W), Mumbai 400 050

bearing CTS Nos. F/867 to F/869 admeasuring 2491.62 sq. meter i.e 2980

sq.yards or thereabouts, more particularly described in Exhibit "A" hereto

declared illegal;

e) That the defendant nos.1 and 2 by themselves, their of�cers, employees and

constructors be ordered and decreed to demolish and remove the said new

twelve "White Orchid" storey building on stilts known as constructed as

additions and alterations to the existing ground �oor cottage on the said

property situate at plot no.4, TPS III, Pali Road, Bandra (W), Mumbai 400 050

bearing CTS Nos. F/867 to F/869 admeasuring 2491.62 sq. meter i.e 2980

sq.yards or thereabouts, more particularly described in Exhibit "A" hereto

wholly at their costs;

f) That all permissions/sanctions including the intimation of disapproval, and

commencement certi�cates bearing no. CE/414/WS/AH of 1996 granted by

defendant nos.1 and 2 by themselves and their of�cers for the construction of

the said proposed building comprising of stilts plus 12 upper �oors known as

"White Orchid" on the said property situate at plot no.4, TPS III, Pali Road,

Bandra (W), Mumbai 400 050 bearing CTS Nos. F/867 to F/869 admeasuring

2491.62 sq. meter i.e 2980 sq.yards or thereabouts, more particularly described

in Exhibit "A" hereto be declared illegal bad-in-law and null and void and the

defendant nos.1 and 2 by themselves and their of�cers be ordered and decreed

to quash, cancel revoke and/or set aside all permissions and sanctions

including the said intimation of disapproval and the commencement certi�cate

bearing no. CE/414/WS/AH of 1996;

g) That the ULC permission LOI No. C/ULC/DIII/22/6011 dated 15th May 1996

and all other orders, permissions and sanctions granted by defendant nos.3 for

redevelopment of the said property situate at plot no. 4, TPS III, Pali Road,

Bandra (W), Mumbai 400 050 bearing CTS Nos. F/867 to F/869 admeasuring

2491.62 sq. meter i.e 2980 sq.yards or thereabouts, more particularly described

in Exhibit "A" hereto be declared illegal, bad-in-law and null and void and the

defendant no.3 be ordered and decreed to quash revoke cancel and/or set aside

the same;

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h) That the raise paved platform of about one feet from ground level

constructed by defendant nos.4, 5 and 6 on the east north and west sides open

space of the said new twelve storey building on stilts known as "White Orchid"

and upto the said Kakad sub-station on the said property situate at plot no.4,

TPS III, Pali Road, Bandra (W), Murnbai 400 050 bearing CTS Nos. F/867 to

F/869 admeasuring 2491.62 sq. meter i.e 2980 sq.yards or thereabouts, more

particularly described in Exhibit "A" hereto be declared unauthorized and illegal

and the defendant nos.1 and 2 by themselves their of�cers, employees workers

and contractors be ordered and decreed to demolish and remove the said raised

paved platform wholly at their cost;

i) That the water connection granted by defendant nos.1 and 2 by themselves

and their of�cers to the said twelve storied building on stilts known as "White

Orchid" on fraudulent misrepresentations be declared illegal and the

defendant nos.1 and 2 by themselves and their of�cers, employees and workers

be ordered and decreed to disconnect and remove the said water connection

wholly at their costs from the said property situate at plot no.4, TPS III, Pali

Road, Bandra (W), Mumbai 400 050 bearing CTS Nos. F/867 t o F/869

admeasuring 2491.62 sq. meter i.e 2980 sq.yards or thereabouts, more

particularly described in Exhibit "A" hereto;

14) Thus, Plaintiff-Society has essentially challenged various

permissions issued by the Municipal Corporation for construction of the

building White Orchid. The gist of prayers in the Plaint and their exact

nature is as under:

(a) Grant of leave under Order II Rule 2 of CPC;

(b) Declaration that Building Plans sanctioned on 13.07.1996 and

subsequently amended in 1997 are unenforceable, illegal and bad

in law (relates to the validity of the building plans and permissions);

(c) Direction to Defendant Nos. 1 and 2 (viz. Municipal

Commissioner and the MCGM) to quash, cancel, revoke and set

aside the sanctioned plans (relates to the validity of the building

plans and permissions);

(d) Declaration that the White Orchid building is illegal (relates to

the validity of the building plans and permissions);

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(e) Direction to Defendant Nos. 1 and 2 (viz. Municipal

Commissioner and the MCGM) to demolish the White Orchi d

building (consequential to challenge to the building plans and

permissions);

(f) That all the permissions and sanctions, including IOD and CC

be set aside, cancelled and revoked (relates to the validity of the

building plans and permissions);

(g) That the ULC permission dated 15.05.1996 granted b y

Respondent No. 4 be cancelled and revoked (stands abated, as more

particularly set out below);

(h) That the paved platform be declared unauthorized and illegal

(consequential /ancillary to challenge to the building plans and

permissions);

(i) That the water connection in respect of the White Orchid

building be declared illegal (consequential/ancillary to challenge to

the building plans and permissions);

(j) Prayers (j) to (bb) are all interlocutory reliefs.

15) Thus, Plaintiff is essentially aggrieved by the manner in

which various permissions are granted by the MCGM. Prayer clauses (b)

to (d) and (f) relate to validity of building plans and permissions

sanctioned by the Municipal Corporation. Prayer clause (e) seeks

consequential relief of demolition of building White Orchid and prayer

clauses (h) and (i) seek consequential relief of demolition of paved

platform and disconnection of water supply. Prayer clause (g) challenges

ULC permission dated 15 May 1996 issued under the ULC Act. However,

since the Act itself is repealed, the relief sought in prayer clause (g) of

the Plaint does not really survive. Thus, the essence of the suit is

challenge to the development permissions issued by the MCGM. The

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other consequential reliefs are dependent on the main relief of challenge

to the development permissions.

16) There is express bar under Section 149 of MRTP Act f or

maintenance of a Suit challenging any order passed or direction/notice

issued by the Planning Authority. Section 149 of MRTP Act seeks to give

�nality to the orders passed or directions/notices issued under the Act

which cannot be questioned in any suit or any other legal proceedings.

Section 149 of the MRTP Act provides thus:

149. Finality of orders.—

Save as otherwise expressly provided in this Act, every order passed or

direction issued by the State Government or order passed or notice issued by

any Regional Board, Planning Authority or Development Authority under this

Act shall be �nal and shall not be questioned in any suit or other legal

proceedings.

17) It is thus more than apparent that the bar under Section 149

of MRTP Act would clearly be attracted qua prayer clauses (a) to (d) and

(f) in the plaint as observed above. Prayer clauses (e), (h) and (i) merely

seek consequential reliefs and depend on main relief of challenge to the

development permissions. In my view therefore, express bar under

Section 149 of MRTP Act would clearly be attracted to the reliefs sought

in the Plaint.

18) In Arihant Construction (supra), the plaintiff therein was

claiming title over the property in respect of which development

permission was granted by MCGM and a suit was �led challenging the

permissions and seeking demolition of the structure. However, there was

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no prayer seeking declaration of title or for recovery of possession. Thus,

factual situation in Arihant Construction was more or less similar to the

one involved in the present case. This is clear from observations made in

paragraph 3 of the judgment which reads thus:

3. To put it in nutshell, the objections raised by the defendant No. 3 are that

the plaintiff is trying to say that the plaintiff has title to the suit property and

thus the Municipal Corporation should not have granted the permission of

construction and the Suit has limited prayer for cancellation of the permission

and consequential reliefs sought are of mandatory and permanent injunction

and thus it is claimed that the Suit is not maintainable in view of section 149 of

the Act.

19) A coordinate bench of this Court in Arihant Constructions

held that if declaration of title is not sought in the Plaint but mere

challenge to development permissions is raised, bar under Section 149 of

the MRTP Act would get attracted. This Court accordingly proceeded to

reject the Plaint under order VII Rule 11 of the Code by holding in

paragraphs 18 and 19 of the judgment are as under:

18. Keeping Rulings referred to by the parties in view, when present suit is

perused, although it refers to an old earlier history of litigation, it does not

seek declaration of the ownership of the plaintiff. It does not even seek

possession of the property although from the plaint itself it can be made out

that plaintiff was not supported by the revenue entries also regarding the

possession. At the time of argument, I had asked the learned counsel for

respondent No. 1-how plaintiff without seeking declaration of title the plaintiff

was claiming mere cancellation of building permission. The counsel submitted

that plaintiff was claiming mandatory and perpetual injunction also. The

counsel was asked if without seeking declaration of title the suit could be

maintained, the counsel submitted that present suit was only to the effect that

defendant No. 3 should be restrained from acting on the permission of

construction given by the Corporation. According to the counsel, the

Corporation had given permission merely relying on revenue entries and he

submitted that this was not appropriate. According to the counsel for

respondent No. 1, the respondent No. 1 had raised objections but the

Corporation still granted the permission. I �nd that the suit in its present form

is hit by section 149 of the Act. It merely seeks cancellation of the permission

of construction on the basis that the plaintiff had raised question of title

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before Planning Authority and thus according to the plaintiff the permission

should not have been granted. Merely because plaintiff raised dispute of title

with the Corporation, would not be suf�cient. The commencement certi�cate

dated 21st March, 2014 issued to the defendant No. 3 and before issuing the

certi�cate, letter dated 15th March, 2014 issued to the plaintiff by the

Corporation shows that the Corporation considered entries in P.R. Card and

sale deed relied on by the defendant No. 3 and measurement map and found

that the entries showed title of the defendant No. 3 and accordingly granted

permission for construction. Planning Authority cannot sit down and give

Judgment on title. The letter dated 15th March, 2014 clearly informs the

plaintiff that when he is asserting title, he may �le appropriate suit. The

plaintiff has �led the suit but did not claim declaration of his title. Although

learned counsel for plaintiff has argued that the plaintiff can maintain the suit

without asking for declaration of his own title but can seek declaration that

defendant No. 3 does not have title, even that is not done. The suit does not

even seek to set aside Sale Deed relied on by defendant. I do not �nd substance

in the arguments.

19. It is not a case that while granting the permission, the planning authority

did not give regard to the provisions of draft or �nal plan as is required to be

considered under section 46 of the Act. Even in that case what would be

appropriate relief or forum would be matter of consideration. The basic reason

for objecting to the building permission given in Plaint is that plaintiff had

raised the question of title and so the permission should not have been

granted. Looking to the Court Fee clause of the suit as well as the prayers of

the suit reproduced above, it is quite clear that the only relief sought is to

cancel the construction permission given to defendant No. 3 and “in

consequences of cancellation/suspension” of permission the mandatory

injunction to remove structure and further perpetual injunction is claimed that

defendant No. 3 should not do any construction at the suit property.

20) The ratio of the judgment in Arihant Construction squarely

applies to the facts of the present case. Here also, Plaintiff has not

sought declaration of title or a prayer for possession. The Suit involves a

plain challenge to the development permissions and therefore the bar

under Section 149 of the MRTP Act would clearly get attracted in the

present case.

21) In Sujala Yashwant Nitsure (supra), a suit was �led seeking

a declaration that building permissions granted by the planning

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authority in respect of a Mangal Karyalay were illegal and injunction was

sought to restrain defendant from carrying out the work as well as for

demolition of the structure. This Court held that grant of development

permission amounted to passing of an ‘order’ under the MRTP Act and

that therefore bar under Section 149 of MRTP would apply to the suit

challenging the development permissions. This Court held in paragraphs

36, 37 and 41 of the judgment as under:

36. When any Statute seeks to expressly bar the jurisdiction of the Civil Court,

such bar must be clear and legislature's intendment must be very explicit. The

order passed by an Of�cer authorized to do so under the Act, rightly or wrongly

in ignorance of law or mis-application of law would be all the same order

passed under the Act imposing bar upon the suit.

37. This aspect has been highlighted by and on behalf of the respondents when

it was urged that undisputedly the said plot being a part of Town Planning

Scheme and being developed under the said Scheme, the permission applied

for and granted is under the provisions of Chapter IV of the M.R.T.P. Act, 1966.

The application was made for the grant of permission and permission has been

granted under the provisions as contained in Chapter IV of the M.R.T.P. Act,

1966. Therefore, there is no doubt the learned Counsel for the respondents

contends that in the instant case order has been passed under the provisions of

M.R.T.P. Act, 1966 and that being so as provided under section 149 there is a

express bar to the institution of the suit. Therefore, the suit is not

maintainable.

41. Provisions as contained in section 149 of the M.R.T.P. Act, 1966 makes any

order, direction, etc. of the Functionary under the said Act �nal and expressly

bars recourse to the Court. Section 147 in addition provides further protection.

It is signi�cant to note that the Previous Statutes of 1915 and 1955 did not

contain the provisions as enjoined in section 149. The bar contained in section

149 is a general bar against any order or action taken under the said Act. The

provisions of M.R.T.P. Act as its preamble indicates are designed to ensure

planning and development of the lands in the regions, preparation and

implementation of the plans, etc. by the various authorities under the Act

exercising the power of eminent domain to serve the public purpose and

interest. The Act is a Complete Code in itself and is meant to serve public

purpose. The Legislative intent is very clear from its various provisions. In that

wherever it thought is necessary, it provides remedy for adjudication in the Act

itself by the Court. For instance issues as arising under section 71 and section

51(3) are made determinable by the Courts. The M.R.T.P. Act deals with the

speci�c subject matter of planning, development, construction of buildings,

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which are highly technical and specialized subjects and therefore orders and

steps by the authorities entrusted with the powers to implement the same have

been made �nal by the statute itself to avoid any impediments in its

implementation.

22) Thus, in Sujala Yashwant Nitsure though reliefs were

sought for demolition and injunction from carrying out the work, the

Suit was still held to be barred under Section 149 of the MRTP Act when

the main prayer in the Suit was challenge to the de velopment

permission.

23) In Roha Municipal Council (supra), notices were issued by

the Municipal Council under Sections 53, 54 and 55 of the MRTP Act.

Plaintiff �led a declaratory and injunction suit without raising speci�c

challenge to the notices. This Court still held that bar under Section 149

of the MRTP Act would apply to the suit, by holding in paras 4, 5 and 7 of

the judgment as under:

4. Upon a meaningful reading of the plaints, it is clear that the challenge

therein is to the notice dated 6 December 2006 issued under Sections 53, 54

and 55 of the said Act. In the prayer clause though no direct reliefs have been

applied in respect of the said notice, it is clear that the reliefs applied for are

on the basis that the said notices are illegal or unenforceable. In fact, implicit

in the reliefs applied for, is the prayer challenging said notices issued under the

said Act.

5. In matters of exercise of powers under Section 9A of the CPC or for that

matter Order 7 Rule 11 of the CPC, meaningful reading of the plaint is

contemplated. In the case of T. Arivandandam v. T.V. Satyapal 1, the Hon'ble

Supreme Court had held that merely because by some clever drafting illusion

of cause of action is created, that by itself will not preclude the Civil Court

from exercising powers under Order 7 Rule 11 of the CPC. In the present case,

merely on the basis of the manner of draft of the relief clause, it cannot be said

that the basic nature of the suit is anything other than challenge to the action

and notices under the provisions of the said Act. Section 149 of the said Act,

reads thus:

xxx

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Renuka CRA 472 of 2009

7. Applying the law as laid down in the aforesaid decision, the impugned orders

shall have to be set aside. Accordingly, the impugned orders are set aside and

the plaint in each of the suits instituted by the respondents is rejected.

24) In Juhi Infra (supra), a suit was �led against CIDCO for

reallotment of the land and seeking injunction restraining the

development until reallocation of land were made. This Court held that

Plaintiff’s real grievance was against CIDCO’s decision of allocation of

land, which was an order passed under provisions of MRTP Act and that

therefore the suit was barred by provisions of Section 149. This Court

held thus:

15) Since the real grouse of the Plaintiff is about decision/order of CIDCO relating

to allotment of land, provisions of Section 149 of the MRTP Act would be applica-

ble. Section 149 of the MRTP Act provides thus:

xxx

16) Thus, no Suit can be �led challenging any order passed or direction issued by

State Government or order passed or notice issued by any Regional Board or Plan-

ning Authority or Development Authority under the MRTP Act. CIDCO is the Spe-

cial Planning Authority for Navi Mumbai Project noti�ed under the provisions of

the MRTP Act. The decisions for allotment of land in Navi Mumbai are taken by

CIDCO under the provisions of New Bombay Disposal of Land Regulations, 1975,

which are formulated under the provisions of section 159 of the MRTP Act. CIDCO

itself is a creature under the MRTP Act which is appointed as New Town Develop-

ment Authority under the Act. Therefore, decision to allot land to various persons

whose lands are acquired would essentially be a decision taken under the MRTP

Act and bar of jurisdiction under Section 149 for maintainability of the Suit would

clearly apply. The whole case of the Plaintiff as pleaded in the Plaint is with regard

to alleged erroneous allotment made to him of area admeasuring 400.23 in Plot

Nos. 58 and 65 and he desires the land to be allotted in Plot no. 10A by deducting

the same from allotment made to Defendant Nos. 5 to 7. This prayer of the Plain-

tiff in the suit would be clearly barred under the provisions of Section 149 of the

MRTP Act. Thus, prayer clause (b) in the Suit, would be barred by the provisions of

section 149 of the MRTP Act.

17) Mr. Parkar has attempted to salvage the situation by contending that prayer

clause (c) in the Plaint is not barred by provisions of Section 149 of the MRTP Act

and that it is impermissible to reject part of the Plaint under Order VII Rule 11 of

the Code. However, in prayer clause (c), Plaintiff has sought an injunction against

Defendants No. 1 to 4 from granting any development permission to Defendant

Nos. 5 to 7 for carrying out construction in Plot No. 10A, Sector 39A till CIDCO al-

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lots a portion of land admeasuring 400.23 sq.mtrs. to the Plaintiff by deducting the

same from the land allotted to Defendant Nos. 5 to 7. The injunction is also for not

obstructing Plaintiff's business in the Suit property. The development permission

is granted under the provisions of Section 44 of the MRTP Act. The obstruction, if

any, to Plaintiff's business in Suit property can be done by CIDCO in exercise of

statutory powers under section 53 of the MRTP Act. Thus, even prayer clause (c) of

the Plaint is relatable to the provisions of the MRTP Act and therefore bar under

section 149 of the MRTP Act would apply even to prayer clause (c).

18) In my view, therefore the entire claim of the Plaintiff in the suit is hit by sec-

tion 149 of the MRTP Act. The whole Plaint therefore deserves to be rejected by

having recourse to the provisions of Order VII Rule 11 of the Code.

xxx

20) In the present case as well, Plaintiff's prayer for injuncting CIDCO from issuing

development permission to Defendant Nos. 5 to 7 would be barred by section 149

of the MRTP Act. The injunction sought by him to restrain Defendant Nos. 1 to 7

from obstructing his business also has connection with provisions of Section 53 of

the MRTP Act as CIDCO as a Planning Authority is required to follow the proce-

dure under Section 53 of the MRTP Act before taking any action against unautho-

rised constructions. Therefore, the entire prayer clause (c) in the Plaint is barred

by Section 149 of the MRTP Act.”

25) In Nashik Municipal Corporation V/s Sunil Baburao

Kshirsagar

12

, this Court has summarized the principles relating to

rejection of Plaint under Order VII Rule 11 of the Code when the suit is

�led before Civil Court challenging notice issued under Section 53 of

MRTP Act. This Court held that clever drafting of the Plaint by avoiding

to expressly challenge notice issued under Section 53 of MRTP Act or

under the provisions of Maharashtra Municipal Corporation Act, 1949

(MMC Act) cannot save the suit from the bar under Section 149 of the

MRTP Act or Section 433A of the MMC Act. The summary of principles is

as under:

36. From consideration of the ratio of various judgments as discussed above, following

conclusions emerge:

12 2025:BHC-AS:50496

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i) The objective behind enacting provisions in various municipal and planning

statutes for bar of jurisdiction of Civil Courts is to ensure minimum possible

court interference in actions initiated against unauthorised constructions so as

to achieve the goal of curbing the menace of unauthorized constructions in ur-

ban areas of State of Maharashtra.

ii) In the light of speci�c provision for bar of jurisdiction under Section 515A of the

Mumbai Municipal Corporation Act, Section 433A of the MMC Act, 149 of the

MRTP Act etc. the Civil Court shall ordinarily not entertain any suit challeng-

ing notice issued, order passed or direction issued under the provisions enu-

merated in those sections.

iii) The Civil Court must be mindful of the fact that there is legislative objective

behind enacting the provision of bar of jurisdiction and that its inherent juris-

diction is legislatively circumscribed by incorporating provisions for bar of ju-

risdiction. Therefore, it is in very rare cases where there are suf�cient plead-

ings in the Plaint demonstrating nullity in the notice, order or direction that

Civil Court would tend in favour of retaining its jurisdiction.

iv) It is only in very rare cases where the Plaint contains averments demonstrating

that the notice, order or direction suffers from the vice of nullity that the Civil

Court would be justi�ed in entertaining Suit challenging such notice, order or

direction in respect of unauthorized constructions.

v) The Civil Court must make meaningful reading of the Plaint to �nd that

whether the grievance expressed in the Plaint is a pure challenge to the notice,

order or direction for demolition of unauthorized construction. If it is a plain

challenge to such notice, order or direction, the Court must proceed to reject

the Plaint by referring to the provision for bar of jurisdiction. If on the other

hand, meaningful reading of the averments in the Plaint makes out case of

nullity in the notice, order or direction, the Civil Court can exercise jurisdiction

in respect of such notice, order or direction.

(vi) However, mere pleading of the word ‘nullity’ in the Plaint would not be suf�-

cient and the Court must �nd out from reading of the entire averments in the

Plaint as to whether a demonstrable case of nullity is made out or not.

(vii) For the purpose of meaningful reading of the Plaint, the Civil Courts would be

guided by the manner in which this Court read the Plaint in Akola Municipal

Corporation (supra) as well as the manner in which the Plaint has been read in

the present judgment.

26) Thus the Suit �led by Plaintiff-Society is a plain vanilla

challenge to the development permissions issued under the MRTP Act.

There is no declaration of title sought by the Plaintiff-Society in the suit.

Though Mr. Jayale has sought to contend that the suit is �led to protect

Plaintiff’s ownership rights in the suit property, there is no such

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declaration sought in the prayers. Though the plaint may set out the

history of alleged title of Plaintiff-Society, the suit ultimately does not

seek a declaration of ownership or recovery of possession. Mere

averments in the plaint about title without seeking any relief in respect

thereof would not convert a plain suit challenging the development

permissions into a suit for declaration of title.

27) While deciding the application under Order VII Rule 11 of

the Code, the Court needs to decide whether reliefs sought in the plaint

are barred by law. Reliance by Mr. Engineer in this regard on judgment of

the Apex Court in Rajendra Bajoria (supra) is apposite. It is held by the

Apex Court in Paragraphs 17 and 18 of the judgment as under:

17. It could thus be seen that the court has to �nd out as to whether in the

background of the facts, the relief, as claimed in the plaint, can be granted to

the plaintiff. It has been held that if the court �nds that none of the reliefs

sought in the plaint can be granted to the plaintiff under the law, the question

then arises is as to whether such a suit is to be allowed to continue and go for

trial. This Court answered the said question by holding that such a suit should

be thrown out at the threshold. This Court, therefore, upheld the order passed

by the trial court of rejecting the suit and that of the appellate court, thereby

af�rming the decision of the trial court. This Court set aside the order

[Manorama Sirsi v. Pearlite Liners (P) Ltd., 2001 SCC OnLine Kar 850] passed by

the High Court, wherein the High Court had set aside the concurrent orders of

the trial court and the appellate court and had restored and remanded the suit

for trial to the trial court.

18. Therefore, the question that will have to be considered is as to whether the

reliefs as claimed in the plaint by the plaintiffs could be granted or not. We do

not propose to do that exercise, inasmuch as the Division Bench of the High

Court has elaborately considered the issue as to whether, applying the

provisions of the said Act read with the aforesaid clauses in the partnership

deed, the reliefs, as claimed in the plaint, could be granted or not.

28) Even in Arihant Construction (supra), this Court has held

that a simplicitor suit seeking cancellation of building permissions

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Renuka CRA 472 of 2009

without seeking declaration of title was not maintainable under Section

149 of the MRTP Act even though the plaint may make reference to the

history of plaintiff’s title. Paragraphs 18 and 19 of the judgment in

Arihant Construction are already reproduced above. It would be apposite

to reproduce the observations made by this Court in para 20 of the

judgment, which reads thus:

20. I have gone through the impugned order passed by the trial Court. Trial

Court referred to the Rulings and in Para 22 of its order, in a cryptic manner

observed that the plaintiff was seeking relief in respect of construction

permission raising objections in respect of title and not considering the same

by Corporation while granting construction permission. Trial Court then went

on to observe that the question raised could be decided only by the Civil Court

and observed that the plaintiff is claiming the relief about the title which

affects on the construction permission of the suit property. Thus only because

plaintiff refers to his title, the trial Court has presumed that the suit was

maintainable without seeing the substance of the Suit and prayer clauses and

the fact that the suit did not at all claim declaration of title nor Court Fee was

paid by the plaintiff. Thus, I �nd that the order passed by the trial Court is not

maintainable.

29) Therefore, mere reference to alleged title of the plaintiff in

the body of the plaint without seeking any relief of declaration of title

would not convert plaintiff’s suit to a declaratory one. In essence, the

suit is a plain vanilla challenge to the development permission without

seeking any declaration of title. Therefore, a bar under Section 149 of the

MRTP Act would clearly get attracted in the present case.

30) So far as the consequential reliefs for demolition of the

building White Orchid (prayer clause (e)), demolition of paved platform

(prayer clause (h)) and illegality in water connection to White Orchid

building (prayer clause (i)) are concerned, the same are consequential to

the main relief of challenge to the development permissions. They �ow

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Renuka CRA 472 of 2009

from the declaration that the building plans and permissions are illegal.

It is only if Plaintiff succeeds in obtaining reliefs under prayer clauses (a)

that further consequential reliefs can be granted. If Civil Court does not

have jurisdiction to grant principal relief, the prayer for consequential

relief is also barred. In Prashant Dattatraya Wazalwar(supra), plaintiff

had sought a declaration that notice issued under MRTP Act was illegal

alongwith consequential prayers for injunction. This Court held that

since main relief was barred under Section 149 of the MRTP Act, no

consequential relief could also be granted. It is held in paragraph 7 of the

judgment as under:

7. There is also a prayer made in the plaint for issuance of permanent

injunction. But this prayer �ows from the prayer regarding a declaration that

notice issued under section 53(1) of M.R.T.P. Act is illegal. If the Civil Suit has

been seen as barred by law in view of section 149 of M.R.T.P. Act, in so far as

such a declaration is concerned, whatever relief that �ows from such a

declaration would also have to be held as non maintainable before a Civil

Court, as a necessary corollary thereof.

31) In Nine Media and Information Services Ltd. (supra), the

Trial Court had refused to grant the principal relief holding that the

same was barred under the provisions of Companies Act, 1956 but had

granted consequential relief to the plaintiff. Setting aside the order of

the Trial Court, this Court held in paragraph 30 as under:

30. Thus, the trial Court also came to the categorical �nding that it has no

jurisdiction to grant the relief as sought by the appellant of directing the

Registrar to issue duplicate share certi�cates. In such situation, the trial Court

should have restrained itself from entering into the discussion on issue

relating to the ownership and title of the appellant over the shares. As, the

relief of direction to the Registrar to issue duplicate share certi�cates was the

main relief, sought by the appellant and to enable the appellant to get that

relief, the consequential/ancillary relief of declaration was sought about his

title to shares. If the trial Court has held that it has no jurisdiction to grant the

main relief, then it follows that trial Court had no jurisdiction even to grant

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other consequential/ancillary relief of declaration. However, the trial Court has

entered into that issue and recorded �ndings. Needless to state that, the

�ndings of the trial Court on that issue being recorded by the Court having no

jurisdiction to record such �ndings, those �ndings cannot have any legal value.

Hence, it is not necessary, as such, to decide the legality of those �ndings on

analysis of evidence. Moreover, if the submission of learned counsel for

respondent No. 1 is accepted that this Court should, instead of deciding the

appeal at this stage of admission, admit the same and thereafter decide on

merits the legality of �ndings recorded by the trial Court, even then in my

considered opinion, as rightly submitted by the learned counsel for the

appellant, it would be a totally futile and infructuous exercise. The law is very

clear, which is not and cannot be disputed in the light of the Apex Court

Judgment that the Registrar is alone having jurisdiction to issue duplicate

share certi�cate and, therefore, once the Civil Court has no jurisdiction to do

so, even if I decide the appeal and ultimately hold in favour of the appellant

that the appellant is having title and ownership over the said shares,

respondent Nos. 1 and 2 are bound to challenge the said decision on the count

that if the trial Court has no jurisdiction, this Court was also not having the

jurisdiction to record such �nding in the appeal. Therefore, it is going to be an

entirely futile and infructuous exercise in allowing the appeal to languish after

admission, till its �nal hearing, especially, when the cause of action for the suit

has arisen in the year 1995 and already it is more than 20 years. When the legal

position is crystal clear and learned counsel for the appellant has, relying upon

these provisions under section 84 of the Companies Act and the law laid down

in this authority of Shripal Jain (supra) has fairly conceded that the appellant

may be given liberty to approach the Registrar instead of prosecuting this

appeal, there is no point in proceeding with this appeal merely for academic

purpose to decide the legality and validity of the �ndings recorded by the trial

Court on Issue Nos. 3 and 4, pertaining to declaration of title over the share

certi�cates.

32) So far as prayer in clause (g) challenging ULC permission is

concerned, the ULC Act is itself repealed on 22 March 1999. Section 4 of

the Repeal Act provides thus:

4. Abatement of legal proceedings. —

All proceedings relating to any order made or purported to be made under the

principal Act pending immediately before the commencement of this Act,

before any court, tribunal or other authority shall abate:

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33) The Repeal Act has been adopted by the State of

Maharashtra on 29 November 2007. Thus, the suit qua challenge to the

validity of ULC permission has already abated.

34) The Trial Court has grossly erred in rejecting Applicants’

Application under Order VII Rule 11 of the Code on the ground that the

same was �led at a belated stage. As observed above, the issues in the

suit were framed on 6 June 2005 and the same was recast on 18 January

2008. Applicants �led Notice of Motion seeking rejection of plaint on 17

January 2009. The Trial Court has held that the motion was �led at a

belated stage after framing of issues. However, the �nding appears to be

contrary to the settled position where powers under Order VII Rule 11 of

the Code can be exercised at any time prior to making of a decree.

Reliance by Mr. Engineer on judgment of Apex Court in Church of Christ

Charitable Trust (supra) in this regard is apposite, in which it is held in

paragraph 10 as under:

10. Since the appellant herein, as the �rst defendant before the trial Judge,

�led application under Order 7 Rule 11 of the Code for rejection of the plaint

on the ground that it does not show any cause of action against him, at the

foremost, it is useful to refer the relevant provision:

xxx

It is clear from the above that where the plaint does not disclose a cause of

action, the relief claimed is undervalued and not corrected within the time

allowed by the court, insuf�ciently stamped and not recti�ed within the time

�xed by the court, barred by any law, failed to enclose the required copies and

the plaintiff fails to comply with the provisions of Rule 9, the court has no

other option except to reject the same. A reading of the above provision also

makes it clear that power under Order 7 Rule 11 of the Code can be

exercised at any stage of the suit either before registering the plaint or

after the issuance of summons to the defendants or at any time before

the conclusion of the trial.

(emphasis added)

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35) Similarly in ITC Ltd. vs. DRAT (supra), the Apex Court has

held that mere framing of the issues in the suit cannot come in the way

of consideration of application under Order VII Rule 11 of the Code.

36) Another erroneous �nding recorded by the City Civil Court

while rejecting the motion �led by the Applicants is failure to raise the

defence of bar under Section 149 of MRTP Act in the written statement.

The �nding is egregiously erroneous since �ling of written statement

itself is not necessary for deciding the Application under Order VII Rule

11 of the Code. As a matter of fact, even �ling of application may not be

necessary in a given case and the Court can suo moto reject the plaint by

having recourse to Order VII Rule 11 of the Code.

37) In Sujala Yashwant Nitsure (supra), this Court held that

even if the plea of bar of jurisdiction under Section 149 of the MRTP Act

was not raised in the pleadings, the Court was not precluded from

considering the plea even at the appellate stage where the jurisdictional

bar went to the root of the matter. This Court held in paragraph 77 of the

judgment as under:

77. … Therefore, taking into consideration all the facts and circumstances as

obtained in the matter herein and the �ndings rendered hereinabove, I do not

�nd any merits in the appeal. The 1st Appellate Court has dismissed the appeal

although reasoning assigned were different to certain extent as have be

clari�ed in the Judgment hereinabove. In asmuch as, the bar of suit under

section 149 of the M.R.T.P. Act was not argued over before the trial Court or

before the 1st Appellate Court. But same being a point of law, this Court has

allowed the parties to address it on the said point. The plaintiffs have failed in

the said legal point and as the same goes to the root of the matter the suit of

the plaintiffs consequently has to be dismissed.

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38) It is also settled law that subject matter jurisdiction stands

on a different footing and can never be waived by a party. Therefore,

mere failure to raise a plea in the written statement that the suit is

barred under Section 149 of the MRTP Act can never amount to waiver

on the part of the Petitioners. Non-raising of such plea would not confer

jurisdiction on the City Civil Court, which is expressly barred under

Section 149 of the MRTP Act. Whether the bar to maintainability of the

suit would apply or not would not depend on the conduct of Defendants.

If there is a bar, the plaint in the suit must be rejected the moment such

bar is brought to the notice of the Court. It can be brought to the notice

of the Court either through written statement or through an application

or even orally. Even if Defendant does not bring the bar to the

maintainability of the suit to the notice of the Court, the Court can itself

notice such bar and proceed to reject the plaint. Thus, there is no

concept of waiver on the part of the Defendant who fails to aver in the

written statement that there is bar to the maintainability of the suit.

Reliance by Mr. Engineer on judgment of the Apex Court in Harshad

Chiman Lal Modi V/s DLF Universal Ltd. and Anr .

13

in this regard is

apposite.

39) Reliance by Mr. Jayale on judgment of this Court in Raja

Bahadur Motilal (supra) is inapposite. The judgment is an authority on

the proposition that a writ petition cannot be entertained in the light of

existence of effective alternate remedy of �ling a suit when the issue

involves right to use TDR. In the case before this Court, there was

dispute about ownership of TDR and in the light of that position, this

13 (2005) 7 SCC 791

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Court held that effective alternate remedy was to �le a suit. The

judgment cannot be read in support of an abstract proposition that in

every case, where the permission granted by the Municipal Corporation

is challenged, the bar under provisions of Section 149 of the MRTP Act

would not apply. It is well settled position that the judgment is in

authority for what it decides and not what can be logically deduced

therefrom [SEE: Commissioner of Customs (Port), Chennai vs. Toyota

Kirloskar Motor (P) Ltd.

14

and Secundrabad Club and Ors. Vs. CIT and

Ors.

15

]. The judgment in Raja Bahadur Motilal does not lay down a law

that a suit challenging permission by Municipal Corporation is

maintainable irrespective of provisions of Section 149 of the MRTP Act.

40) Faced with the situation that the suit does not contain any

prayer or relief for declaration of title, Mr. Jayale has submitted that

Plaintiff-Society has �led a Chamber Summons seeking amendment of

the plaint. In the schedule to the Chamber Summons, Plaintiff has

sought to seek a declaration that it is entitled to TDR of the suit property

and that TDR of 1000 sq.m. sanctioned vide the plans and used in

construction of the building White Orchid is illegal, null and void.

Proposed amendment also seeks to challenge the full OC in respect of

the building issued on 27 August 1999 and Building Com pletion

Certi�cate issued on 27 April 2000. The Application for amendment is

still not decided. Once the Application for rejection of plaint under Order

VII Rule 11 of the Code is pressed before the Court, the Court cannot

defer a decision thereon merely because application for amendment of

14(2007) 5 SCC 371

152023 SCC OnLine 1004

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Renuka CRA 472 of 2009

the plaint is �led or is pending. Application for rejection of plaint needs

to be decided on the basis of averments made and relief sought in the

plaint. The Application cannot be rejected on the ground that Plaintiff

may be granted permission in future to amend the plaint and that such

amendment may result in retention of the plaint. In Prakash G. Goyal

(supra), this Court has held in paragraph 15 of the judgment as under:

15. The trial Court despite noticing the fact that the relief of declaration with

regard to the nature of plaintiffs title not having been sought, committed an

error in granting time to the plaintiff to seek proper relief and pay Court fees

within a period of 15 days. From the provisions of Order VII, Rule 11 of the

Code and especially clauses (b), (c), (e) and (f) the Court can extend the time

for permitting the plaintiff to comply with its directions only in the situations

contemplated therein. Where the rejection of the plaint is sought under

provisions of Order VII, Rule 11(a) or (d) of Rule 11, there would be no question

of granting time to the plaintiff to rectify the defects in the plaint. In the

present case the trial Court having found that a case under provisions of Order

VII, Rule 11(d) of the Code had been made out, there was no occasion for the

trial Court to have granted further time of �fteen days to seek appropriate

relief. By granting that time the trial Court acted beyond its jurisdiction and

hence the order to that extent cannot be sustained. The submission made on

behalf of the plaintiff that the defect in question was curable and hence liable

to be recti�ed by placing reliance on the decisions in Mst

Rukhmabai and Vidyavati Gupta (supra) does not deserve acceptance. If the suit

appears from the statements in the plaint to be barred by any law, that defect

cannot be said to be curable as contended by the plaintiff. Needless to state

that recourse to provisions of Order VII, Rule 13 of the Code in that context is

always permissible in accordance with law.

41) Thus, mere �ling of chamber summons by the Plaintiff to

amend the plaint could not have prevented the Trial Court from deciding

the application for rejection of plaint. The Trial Court has otherwise not

waited for decision of amendment application and has proceeded to

decide the application for rejection of plaint by taking into consideration

the averments and reliefs in the unamended plaint. It has however

faltered in not allowing the application by ignoring the position that all

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Renuka CRA 472 of 2009

the reliefs sought in the plaint are expressly barred under Section 149 of

the MRTP Act.

42) Mr. Jayale has also referred to �ling of Suit No. 1489 of 2019

by Defendant No. 8-Society. In that suit, White Orchid CHSL has inter

alia sought a declaration that it is the sole owner and possessor of entire

FSI �owing out of larger land (except FSI of 20662 sq.ft. held by Plaintiff-

Society). Thus, Suit No. 1489 of 2019 clearly involves issue of title

relating to the FSI �owing out of the larger land. As against this, LC Suit

No. 2591 of 2000 �led by Plaintiff-Society does not contain any relief for

declaration of title. Mr. Jayale has placed on record copy of counterclaim

�led by Plaintiff-Society in Suit No. 1489 of 2019, in which Plaintiff has

challenged the Deed of Assignment dated 10 August 2016. Thus, Plaintiff

has joined issues relating to title by �ling Counterclaim in Suit No. 1489

of 2019. Be that as it may. It is not necessary to take into consideration

the reliefs sought in Suit No. 1489 of 2019 or in Counterclaim No. 3 of

2023 �led by Plaintiff therein. Suf�ce it to observe that Plaintiff-society

has failed to seek declaration of title in LC Suit No. 1489 of 2019. The

Suit contains plain vanilla challenge to the development permissions,

thereby attracting clear bar under Section 149 of the MRTP Act. The City

Civil Court has erred in rejecting the motion �led by the Applicants.

43) The Revision Application accordingly succeeds, and I

proceed to pass the following order:

(i) Order dated 14 July 2009 passed by the City Civil Court

on Application at Exh-14 is set aside.

Page No. 30 of 31

22 SEPTEMBER 2026

Renuka CRA 472 of 2009

(ii) The Application at Exh-14 �led in LC Suit No. 2519 of

2000 is allowed in terms of prayers made therein and the

Plaint in LC Suit No. 2591 of 2000 is rejected.

(iii)Consequently, LC Suit No. 2591 of 2000 is dismissed.

44) Civil Revision Application is allowed in above terms. There

shall be no order as to costs.

45) Nothing remains to be adjudicated in the Interim

Applications. The same are accordingly disposed of.

[SANDEEP V. MARNE, J.]

Page No. 31 of 31

22 SEPTEMBER 2026

MEGHA

SHREEDHAR

PARAB

Digitally

signed by

MEGHA

SHREEDHAR

PARAB

Date:

2026.09.22

20:47:08

+0530