Joginder Paul Etc. vs Mohan Lal Jain and another

G.R. Majithia, J.—This regular second appeal is directed against the judgment and decree of the learned first appellate Court dated December 15, 1987, at the instance of the Plaintiff.

The unsuccessful Plaintiffs have come up in appeal against the judgment and decree of the first appellate Court whereby their suit was dismissed on the ground that a notice u/s 49 of the Punjab Municipal Act (for short ''the Act'') was not served on the Defendants. Resultantly, the suit was not maintainable.

I will refer to the parties with the nomenclature as given in the original plaint. The Plaintiffs came to the Court for seeking a mandatory injunction directing Respondent No. 1 to remove the Kotha at point ''X'' the wall marked ''DEF'' alongwith fence over the site plan in red in the site plan and for permanent injunction restraining the Defendants from making any temporary/permanent structure over the site ''BCGH'' shown in the site plan annexed with the plaint. They claimed that they were owners of the shop and house shown as green in the site plan. Towards North of the Plaintiffs, property there was a public street, over which the municipal committee has got a right of control and supervision. The doors and windows of the Plaintiff''s property open towards the site in dispute They are entitled to use the site marked as ''BCGH'' mentioned in the site plan The municipal committee has got no right to sanction a plan or grant any lease or licence to Defendant No 1 to raise any construction over the site in dispute. The sanction granted to raise construction by the municipal committee in 1980 was null and void The Plaintiffs apprehend that the municipal committee-Defendant No. 2 might not grant any further licence to Defendant No. 1 to raise further construction. Resultantly, the instant suit was filed

The Defendants controverter the allegations of the Plaintiffs and on the pleadings of the parties the learned trial Judge framed the following issues: -

Whether the Plaintiffs are the owners in possession of the shop-cum-house shown as green in the site plan attached with the plains ? OPP.

2 Whether there was a street 30 wide in existence on the Northern side of the above said house, which was used by the general public ? OPP

Whether the site in dispute shown as EFGH in the site plan vests in Defendant No. 2 ? OPD-2.

Whether Defendant No. 2 has no authority to lease out the site in dispute ? OPP.

Whether Defendant No. 1 was a licencee in the portion shown as ADEP in the site plan and his licence was revoked and proceedings started against him under the Public Premises (Eviction of Unauthorised Occupants) Act ? If so, to what effect ? OPP.

5-A. Whether the alleged door, window and Chabutra were constructed by the Plaintiffs without the sanction of the Municipal Committee and after the property in dispute was leased to Defendant No. 2 ? If so, to what effect ? OPD.

Whether the resolution of Defendant No. 2 dated 31.3 1980 granting lease/licence of the abovesaid plot ADEF to Defendant No 1 is illegal, void without jurisdiction, against the provisions of law and inoperative ? OPP

Whether the construction raised by Defendant No 1 in the said plot is liable to be demolished on the ground taken in the plaint ? OPP.

Whether the site plan filed by the Plaintiffs is not correct ? If so. to what effect ? OPD

Whether the suit is not maintainable ? OPD

Whether the suit is competent without sanction of the Advocate General u/s 92 of the CPC ? OPP.

Whether no notice was necessary u/s 49 of the Punjab Municipal Act. 1911. before institution of present suit against Defendant No. 2 ? If not, to what effect ? OPD.

Whether the Plaintiff is entitled to the mandatory injunction prayed for ? OPP

Whether the Plaintiff is entitled to the injunction prayed for? OPP.

Issue No. 11 was treated as a preliminary issue. The learned trial Judge held that before any suit could be filed against Defendant No. 2, it was mandatory for the Plaintiffs to serve a notice u/s 29 of the Act on the Defendants. The learned trial Judge dismissed the suit holding that in absence of notice, the suit was not maintainable against the municipal committee. This finding of the learned trial Judge was upheld in appeal by the learned first appellate Court The Specific Relief Act of 1877 was subjected to judicial interpretation. A scrutiny of the accumulated mass of case-law and a overhaul of the provisions of the Act was obviously necessary The Law Commission was appointed by the President of India. The recommendations of Commission were embodied in its Ninth Report and these culminated in the passing of the Specific Relief Act, 1963. It will be useful to refer to Section 49 of the Act, as well as Section 54 of the Specific Relief Act, 1877 and S. 38 of the Specific Relief Act, 1963

Suits against committee and its Officers-No suit shall be instituted against a committee or against any officer or servant or of a committee in respect of any act purporting to be done in its or his official capacity, untill the expiration of one month next after notice in writing has been, in the case of a committee, delivered or left at its office, and in the case of an officer or servant, delivered to him or left at his office or place of abode, stating the cause of action and the name and place of abode of the intending Plaintiff; and the plaint must contain a statement that such notice has been so delivered or left:

Provided that nothing in this section shall apply to any suit instituted u/s 54 of the Specific Relief Act, 1877 (1 of 1877).

S. 54 of the Specific Relief Act, 1877

S. 38 of Specific Relief Act, 2963.

"Subject to the other provisions contained in or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication

"Perpetual injunction when granted: (1) Subject , to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication

When such obligation

arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.

(2) When any such obligagation arises from contract, the court shall be guided by the rules and provisions contained in Chapter If.

When the defendant invades or threatens to invade the plaintiff''s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following causes (namely)

(3) When the defendant invades or threatens to invade the plaintiff''s right to or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:

(a) where the defendant is trustee of the property for the plaintiff;

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion:

(c) where the invasion is such that pecuniary compensation would not afford adequate relief:

(c) where the invasion is such that compensation in money would not afford adequate relief;

(d) where it is probable that pecuniary compensation cannot be not for the invasion;

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings."

(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings

Explanation For the purpose of this section a trademark is property."

The merits of the suit would obviously involve determination of the Plaintiffs'' alleged right or alleged commission of act by the Defendants which would, be contrary or violative to right of the Plaintiffs. The necessary allegations in the body of the plaint will enable the Court to come to a determination of the above basic question. In law a declaration by implication or in express term would not make any difference in substance and it will not affect or alter the nature of the suit and the instant suit in substance is a suit for perpetual or permanent injunction to restrain Defendant No. 2 from granting any further lease or licence for permission to raise temporary or permanent construction by Defendant No. 1. The instant suit satisfies the test of a suit u/s 38 of the new Act. It will be useful to refer to the provisions of Section 6 of the Punjab General Clauses Act, 1898, which reads thus:-

Constitution of references to repealed enactments.-Where this Act, or any other Punjab Act, repeals and re enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

If I read Section 38 of the Specific Relief Act in place of Section 54 of 1877 Act, the consequence will be that the instant suit will fall in the proviso to Section 49 of the Act. I. therefore, hold that the suit was I maintainable without any notice u/s 49 of the Act. on the Defendants. In this context, it will be useful to refer to the following observations of J. V. Gupta, J. in Yogesh Kumar v. Municipal Committee Bassi Pathana Through its Executive Officer President (1987) 91 P.L.R. 527:-

From the plaint it is quite evident that the Plaintiff bad filed a suit for permanent injunction restraining the Defendant-committee from demolishing the boundary wall-etc. In order to find out the nature of the suit the defence taken by the Municipal Committee will not be relevant. Thus, the suit filed as such was maintainable in view of the said proviso to Section 49 of the Act. The view taken by the courts below in this behalf was wrong and illegal.

Resultantly, I set aside the judgment and decree of the learned first appellate Court, and remit the case to the learned trial Judge for disposal on merits. The parties through their counsel are directed to appear before the learned trial Judge on December 2, 1988.