' SHAH JEHAN KHAN AKHUNDZADA, J.---The facts leading to the instant civil revision are that on 18- 2-2009 Hashim Ali and others petitioners/plaintiffs have filed a suit for declaration to the effect that they are lawful and legal allottees of shops situated in Janjaal Pura Nowshera Cantt vide Cantonment Bdard Resolution (C.B.R) bearing No,11 dated 14-2-2006 and No,21 dated 18-4-2006 passed in the light of advice of respondent/defendant No,1 and tenancy agreement executed in pursuant thereof and the same are illegal, unlawful without any legal authority, void, hence ineffective upon their rights. They also sought for mandatory injunction restraining respondents/defendants to withdraw and cancel the office order/letter bearing No,33-G/3484/DG- VISIT/ Nowshera dated 19-12-2008 and also sought for perpetual injunction restraining the respondents/defendants from canceling/selling/reauctioning the shops in question to other parties and alienating the same in any manner. It was averred in the plaint that vide Cantonment Board Resolutions (CBR) bearing Nos.11 and 21 dated 14-2-2006 and 18-4-2006 respectively, they were allotted vacant site for construction of the shops in the Janjaal Pura Nowshera and they were directed to comply with all the relevant conditions vide office letter issued by respondent/defendant No,1 bearing No,IV-TR/10/JP/61, dated 30-3-2006; that after fulfilling all the terms and conditions, the petitioners/plaintiffs started construction of the said shops by taking loans. Subsequently, the petitioners/plaintiffs were ordered by the defendant/respondent No,1 that Cantonment Board, Nowshera has ordered the cancellation of the disputed shops vide its Resolution No,11 dated 10-11-2008 and in pursuance of the said Resolution the allotment was cancelled; that the plaintiffs/petitioners moved application to the respondent/defendant No,1 against the cancellation of allotment however, no reply was furnished. Hence, the instant suit.
2. During the pendency of the suit two applications i,e, one by respondents/defendants for rejection of plaint due to non-maintainability of the suit and the other by the petitioners/plaintiffs for deletion of relief of declaration from the plaint were submitted and vide order dated 28-7-2009, the application of the respondents/defendants for rejection of plaint was dismissed while the application of the petitioners/plaintiffs for deletion of prayer of declaration from the plaint was accepted. Later on, the petitioners/plaintiffs filed amended plaint in which the prayer for declaration was deleted.
3. The suit was contested by the respondents/defendants by filing written statement and from the divergent pleadings of the parties the following issues were framed:-- ISSUES:
(1) Whether the plaintiffs have got a cause of action? OPP
(2) Whether the plaintiff is estoppel to sue? OPD
(3) Whether the suit is bad due to non-joinder of necessary parties? OPD
(4) Whether proper _court fee has been affixed? OPD
(5) Whether the Court has got the jurisdiction to entertain the present suit? OPD
(6) Whether the Cantt. Board Resolution (CBR) bearing No,11 dated 10/11/2008 and Office letter No,33/G-3484/DG-VISIT/Nowshera dated 19/12/2008 regarding cancellation of shops is illegal and unlawful and is ineffective upon the rights of the plaintiffs?
(7) Whether the plaintiffs are entitled to the decree as prayed for? OPP
(8) Relief
4. In order to prove their claim, Hashim Ali, petitioner/plaintiff No,1 only appeared as PW-1 while from the respondents/defendants side one Inam Ullah their representative appeared as DW-1. After hearing the learned counsel for the parties, the learned Civil Judge-II, Nowshera dismissed the suit petitioners/plaintiffs vide judgment and decree dated 10-5-2010.
5. Feeling aggrieved from the above judgment and decree of the learned trial court, the petitioners/plaintiffs preferred an appeal before the learned appellate court which was dismissed by the learned Addl. District Judge-I, Nowshera vide his judgment and decree dated 8-2-2011.
Through the same judgment, the application filed by the petitioners/ plaintiffs for additional evidence as well as the memo of appeal was also dismissed. Being not contented with the judgments and decrees of the two learned, courts below, the petitioners/plaintiffs have filed this revision petition.
6. I have heard the learned, counsel for the parties and have gone through the record of the case.
7. Since the jurisdiction of the civil court is involved in the instant case, therefore, I restrict myself only to sole question of jurisdiction without touching the other merits of the case. The respondents/ defendants in their written statement besides raising the other legal and factual grounds, have took the plea that since the petitioners/plaintiffs have not complied the provision of Special Law i,e, the mandatory provision of section 273 of the Cantonments Act, 1924, therefore, civil court has no jurisdiction to entertain such like suit.
7. In order to appreciate the rival contentions of both the learned counsel for the parties, it will be beneficial to go through section 273 of the Cantonments Act which reads as under:- "273. Notice to be given of suit.---(1) No suit shall be instituted against any (Board] or against any member of a Board, or against any officer or servant of a (Board], in respect of any act done, or purporting to have been done, in pursuance of this Act or of any rule or bye-law made thereunder, until the expiration of two months after notice in writing has been left at the office of the (Board], and, in the case of such member officer or servant, unless notice in writing has also been delivered to him or left at his office or place of abode, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and unless the plaint contains a statement that such notice has been so delivered or left.
(2) If the (Board], member, officer or servant has, before the suit is instituted, tendered sufficient amends to the plaintiff the plaintiff shall not recover any sum in excess of the amount so tendered,, and shall also pay all costs incurred by the defendant after such tender.
(4) No suit, such as is described in subsection (1), shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(5) Nothing in subsection (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit or proceeding;".
9. The notice within the contemplation of section 273 of the Act, as a condition precedent before bringing any cause to the Court is purposeful. Object of notice under section 273(1) of the Act of 1924 is to provide a course or mechanism to a person who is aggrieved of an act done or purported to be done under the Cantonments Act, for the speedy redressal of his grievance at the departmental level. In case the grievance is not attended to within two months from the date of service of notice on the Board, member, or servant of the Board, as the case may be, then the act complained of, could be brought to the Court. Such course is available where the act complained of is performed or proposed to be carried out, falls within the four corners of the Cantonment Act, or of any rules or bye-laws made thereunder.
10. Since in the instant case, no notice as required under section 273 of the Cantonments Act, 1924 has been served upon the respondents/defendants and the petitioners/plaintiffs to avoid this legal obligation has filed, amended plaint to seek for mandatory and perpetual injunction in lieu of declaration which act was "departure" from the pleadings inconsistent with the previous pleadings and prayer which are not permissible by the provision of Order VI Rule 7 C.P.C. Which is reproduced as under:- "Departure.---No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same".
11. In view of the above discussion, I have come to the conclusion that the Civil Court has got no jurisdiction to entertain the suit of the petitioners/plaintiffs and their suit was rightly dismissed by the courts below and judgments and decrees of the two learned courts impugned herein are well founded being found on proper appreciation of evidence and legal provisions of law. Thus, learned two courts below have neither exercised its discretion not vested in it by law nor have failed to exercise jurisdiction so vested in it by law nor have acted illegally or with material irregularity.
12. Resultantly, this revision being devoid of force as well as not D maintainable is hereby dismissed.