JUDGMENT
M.S. Jamdar, J.
1. This appeal arises against the decree dismissing plaintiff’s suit for injunction and against the order simultaneously passed rejecting appellant’s notice of motion for interim injunction. The appellant is a tenant of a room on the terrace of a building situate on Plot No. 134, Govindji Kani Road, Dadar, Bombay. On the allegation that the appellant unauthorisedly constructed a shed adjoining the room in his possession, the respondent-Corporation served a notice on the appellant under section 351 of the Bombay Municipal Corporation Act calling upon him to show cause why the unauthorised construction mentioned in the notice should not be demolished. This notice dated September 5, 1980 was received by the appellant on November 12, 1980. It was issued by the Deputy Municipal Commissioner, Zone II. To this notice appellant gave a reply on November 18, 1980 through his Advocate contending inter alia that he was not carrying out any new construction but he was just repairing the old structure which was in a very dialpidated condition and to repair the same he had sought permission of the Corporation on several occasions, but without granting such permission and without making proper enquiries the structure was sought to be demolished at the instigation of the landlord who wanted to dispossess him. The appellant also stated in para 4 that thought no notice under section 527 of the Bombay Municipal Corporation Act was necessary the aforesaid reply should be treated as a notice under section 527. Thereupon the Assistant Engineer (Buildings & Factories), F/South, by his letter dated December 5, 1980 addressed to the appellant’s Advocate called upon the appellant to produce the documents in his possession within seven days from the receipt of the notice. According to the appellant he went to the office of the Assistant Engineer, (Building & Factories), F/South Ward at Parel, on December 24, 1980 but he was informed that the decision to demolish the structure in question was already taken. The appellant, therefore, filed a suit for declaration that the notice dated September 5, 1980 was illegal, ultra vires and issued a non-germane, extraneous and irrelevant considerations, without application of mind, mala fide, and for permanent injunction restraining the Corporation from enforcing the said notice. Simultaneously he took out notice of motion for interim injunction restraining the respondent-Corporation from executing the aforesaid notice. The interim injunction was granted ex parte. The respondent-Corporation filed their written statement and also affidavit-in-reply to the notice of motion adopting the contentions raised in the written statement and praying that the notice of motion should be dismissed and the ad interim injunction should be dissolved. The respondent-Corporation contented that the unauthorised structure was detected when the premises were inspected on receiving information to that effect from the landlord and that in response to the impugned notice the appellant never approached the officers of the Corporation to show that the construction sought to be demolished was not unauthorised. It was also contented that the suit itself was not maintainable as no valid notice under section 527 of the Bombay Municipal Corporation Act was served on the Corporation before filing the suit. The learned trial Judge rejected the contention of the appellant that no notice under section 527 of the Bombay Municipal Corporation Act was necessary. He also held that the letter dated November 18, 1980 which the appellant wanted to be treated as a notice under section 527 was not a valid notice inasmuch as it was addressed to the Deputy Municipal Commissioner and not to the Corporation. He also held that issuing a notice under section 351 for demolition of unauthorised construction is not a mala fide action. Consequently he dismissed the suit and rejected the notice of motion.
2. Shri Vyas, the learned Advocate for the appellant, contended that the suit was dismissed by the learned trail Judge even though it was not posted for hearing or for determination of the issue about maintainability of the suit, and that no relief on notice of motion was granted solely on the ground that the suit was being dismissed. He also contended that the learned trial Judge has failed to consider the question whether any notice under section 527 was necessary.
3. There is no substance in the contention that no notice under section 527 was necessary. The impugned notice was given in exercise of the powers conferred on the Corporation under section 351 of the Act which empowers the Municipal Commissioner to call upon, by a written notice a person commencing, contrary to the provisions of section 347, erection of any building or execution of such work as is described in section 342 to show cause why such building or work should not be removed or pulled down. A notice issued in purported exercise of this power cannot be said to be ultra vires. Hence a notice under section 527 must be given before filing a suit for challenging validity of such a notice and of the legality of the action taken in pursuance of the same.
4. The letter dated November 18, 1980 addressed by the appellant to the Deputy Municipal Commissioner cannot be treated as a valid notice under section 527 obviously because the suit was not filed against the Deputy Municipal Commissioner. The notice is not issued to the Corporation against which the suit is filed. Hence the learned trial Judge rightly relied on the decision in Nathubghai v. B.M.C., 60 Bom.L.R. 515, to hold that the letter dated November 18, 1980 cannot be considered as a valid notice under section 527 of the Bombay Municipal Corporation Act in a suit against the Corporation. Moreover, admittedly the notice is not in the prescribed form.
5. It is true that the suit was not fixed for hearing or for deciding any issue about maintainability of the suit, but the suit appeared, from the statements in the plaint itself, to be barred by the provisions contained in section 527 and hence the learned trial Judge was competent to reject the plaint under Order 7, Rule 11. It is well settled that this rule can be applied at any stage of the suit and hence the order dismissing the suit cannot be styled as illegal merely because the suit was not fixed for hearing or for determination of the issue of maintainability.
6. Moreover, as rightly urged by Shri Trivedi the absence of notice under section 527 relates to the jurisdiction of the trial Court to entertain and try the suit and hence the learned trial Judge was bound to dismiss the suit once he came to the conclusion that no notice under section 527 was given by the appellant before filing the suit. In support of his contention Shri Trivedi place reliance on the decision of the Full Bench in Vasand Ambadas v. Bombay Municipality, . No doubt the question involved in that matter was whether the procedural requirement of giving a notice under section 527 of the Bombay Municipal Corporation Act can be waived or not. But the learned Judges proceeded to consider that question on the premise that no suit can be instituted without service of notice if such service of notice is required statutorily as a condition precedent to the exercise of jurisdiction, and proceeded to lay down that the procedural requirement of giving such a notice can be waived and on such waiver the Court gets jurisdiction to entertain and try the suit. As rightly held by the learned trial Judge no valid notice under section 527 of the Bombay Municipal Corporation Act was given by the appellant before filing the suit and hence the trial Court had no jurisdiction to entertain and try the suit, which was rightly dismissed. As the suit, itself was dismissed no question of granting temporary injunction arose.
7. The result, therefore, is that the appeal must fail. The appeal is dismissed with costs.