Interim Order 12

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 20 CS SCJ 148/23 SHANKAR BUILDERS Vs. THE
MUNICIPAL CORPORATION OF DELHI
07.02.2026
Present: Sh Sachin Aggarwal, ld counsel for the
plaintiff.
Ms Vasu Singh, ld counsel for the defendant.
An application u/o VII Rule 11 CPC is pending
disposal. Arguments heard.
At the outset, it is noted that the present
application has been filed by MCD stating that the present
suit has been filed without the lapse of the statutory period of
two months as per Section 80 CPC/478 of DMC Act. It is
argued by ld counsel for MCD that as per the plaint, a legal
notice was sent to MCD on 18.01.2023 and the present suit
has been filed on 09.02.2023 without waiting for the
stipulated period of two months to be over. It is stated that in
such circumstances, the suit of the plaintiff is barred and the
plaint is liable to be rejected under Order VII Rule 11 (d)
CPC.
Ld counsel for the plaintiff, on the other hand,
has stated that the plaintiff has filed the present suit seeking
the relief of injunction as well as relief of recovery of money
against the defendant and that an application seeking waiver
of the statutory period as per section 478 of DMC Act was
filed alongwith the suit and after considering the same, the
notice was issued by this Court. It is argued that in such
circumstances, it has to be deemed that the requirement of
notice itself, was waived and the suit cannot be dismissed.
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Heard.
It is significant to mention that the present suit
has been filed by plaintiff seeking relief of declaration,
injunction as well as for recovery of earnest money, on
09.02.2023 and prior to institution of this suit, a legal notice
was also issued to the defendant on 18.01.2023. It is pertinent
to mention that alongwith the suit, an application u/s 478 of
DMC Act was also made on behalf of plaintiff, however,
without giving any finding over the said application, notice
of the suit was issued. It is relevant to refer to Judgment of
Hon’ble High Court of Delhi passed in Yashod Kumari vs
MCD 2004 (78) DRJ 629 (DB) wherein it was held that an
application seeking waiver should have been decided first
either granting leave or refusing it, in which case the plaint
would have been returned to the plaintiff for filing it again
after completion of two months’ notice. It is to be seen that
the summons of the suit were issued on 03.03.2023 and no
formal order was passed on the application seeking waiver. A
lot of time has passed since then and the defendant has
already filed a written statement, though with an application
for condonation of delay.
In the considered opinion of this Court, once
the authority/defendant has contested the suit on merits even
at preliminary stage, it cannot plead non-service of notice
and cannot seek dismissal of the suit only on this ground.
Accordingly, the application u/o VII Rule 11
(d) CPC stands dismissed.
Ld counsel for defendant has sought time to
file reply to the application u/o XI Rule 14 CPC.
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An application u/o VIII Rule 1 CPC seeking
condonation of delay in filing of written statement is also
pending disposal.
Let the case be notified for arguments on both
the aforesaid applications for 07.05.2026.
(Nitish Kumar Sharma)
JSCC/ASCJ/GUDN. JUDGE
North, Rohini Courts,Delhi/07.02.2026
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