Yogesh Kumar vs Municipal Committee

J.V. Gupta, J.—This is Plaintiff''s second appeal whose suit for permanent injunction has been dismissed for want of notice u/s 49 of the Punjab Municipal Act (for short the Act).

The Plaintiff filed the suit for permanent injunction restraining the Defendant-committee and his agents and servants from demolishing the boundary wall shown in the plan attached with the plaint forcibly, illegally or in any other manner.

The suit was dismissed inter alia on the ground that it was bit by Section 49 of the Act because no notice, contemplated therein, was given by the Plaintiff. Both the Courts below have dismissed the suit on that ground alone.

The learned Counsel for the Plaintiff-Appellant submitted at the time of motion hearing that the proviso to Section 49 of the Act has not been considered and thereunder no notice was necessary for filing a suit for perpetual injunction as contemplated u/s 54 of the Specific Relief Act, 1877 which is equivalent to Section 38 of the Specific Relief Act, 1963.

The learned Counsel for the Appellant contended that in view of the proviso, the suit being for injunction was maintainable. In support of this contention he referred to Gian Chand v. Municipal Committee, Samaria (1965) 67 P. L. R. (S. N.) 40. On the other hand, the learned Counsel for the Defendant-Municipal Committee referred to Municipal Committee, Nakodar v. Sadhu Ram I. L. R. 1957 Pb. 638, and contended that the the suit could not be said to be for permanent injunction. Rather it was a suit for declaration and as a consequence thereof the Plaintiff claims for an injunction.

After hearing the learned Counsel for the parties I find force in the contention raised on behalf of the Appellant. Section 49 of the Punjab Municipal Act. 1911 reads as under:-

Suits against committee and its officers.-No suit shall be instituted against a committee or against any officer or servant 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 (I of 1877).

From the plaint it is quite evident that the Plaintiff had 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. Consequently, this appeal succeeds, the judgment and decree of the Courts below are set aside and the case is sent back to the trial court for deciding the same on merits in accordance with law. The parties have been directed through their counsel to appear in the trial court on 6.4.1987. The records of the case be sent back forthwith.

It is directed that in order to expedite the hearing of the suit the parties will lead their evidence on their own responsibility. Dasti summons may be given, if so desired, as provided under Order 16 Rule 17-A CPC Code.