This civil revision application under section 115, C.P.C. is directed against the judgment, dated 24- 12-1995 passed by Additional District Judge, Hyderabad in Miscellaneous Civil Appeal No,38 of 1995 upholding the order, dated 23-8-1995 passed by Senior Civil Judge, Hyderabad refusing to grant a temporary injunction in favour of the applicant in Suit No,121 of 1995.
2. Essentially dispute between the parties relates to an area measuring 160 sq. ft. in the compound of House No,250 situated in Saddar Bazar, Hyderabad for which the applicant has filed a suit against the respondent before the lower Court.
3. Briefly stated the case of the applicant is that he is the exclusive owner and in possession of the aforesaid house measuring 490 Sq.ft. besides additional frontage land measuring 160 sq.ft on old grant terms. In the year 1977, Cantonment Board sent a letter to him claiming the frontage area measuring 160 sq. ft. as their property and directed him to demolish his boundary wall whereby the said area was abounded and included in his house. He, therefore, filed Suit No,374 of 1988 for permanent injunction restraining the respondent from demolishing the compound wall or any part of the western courtyard of his house or interfering with his possession over the said area as it formed compact part of the said house. This suit was decreed against the respondent as prayed under the provisions of Order VIII Rule 10, C.P.C. vide judgment and decree, dated 27-5-1979 which attained finality as no appeal was preferred against the aforesaid decree.
4. In 1994 applicant's house being in old and dilapidated condition collapsed as a result of illegal construction of adjacent House No,251 which necessitated the application for reconstruction of his house. Accordingly on 30-8-1994 he submitted a building plan to the respondent for approval but through inadvertence he declared the total area of his house as 490 sq. ft. instead of 650 sq. ft.
Consequently on 14-12-1994 he submitted a revised building plan on 650 sq. ft. alongwith statutory notice under section 273 of Cantonment Act, 1924 (hereinafter referred to as Act, 1924) as well as a certified copy of the decree passed in the earlier suit. Applicant did not receive any response from the respondent for quite a long period whereas on 30-1-1995 respondent communicated the sanction of approval to the building plan, dated 30-8-1994 submitted earlier. In the circumstances, applicant started raising construction over the plot in suit but the employees of the respondent interfered with the construction and extended threats of intervention through military police and demolition of the construction. Consequently he submitted an application, dated 13-6-1995 to the Executive Officer of the respondent Board who called him to his office for an interview and stoppage of the construction work in the meanwhile by letter, dated 15-6-1995. The applicant attended the office of the said officer but the latter could not see him being lawfully busy with his official business. As after the submission of revised building plan alongwith statutory notice and certified copy of the decree in the previous suit, respondent did not communicate anything to the applicant in respect of approval of revised building plan and his application, dated 13-6-1995 also remained unresponded, it is averred by the applicant that the respondent is deemed to have accorded sanction to the erection of the revised building plan in terms of section 181(6) of the Act, 1924. In the aforesaid circumstances, he filed the above suit in the Trial Court seeking the following reliefs:--- (a)To declare that the defendant has approved the revised building plan of the plaintiff in terms of section 181(6) of Cantonment Act, 1924.
(b)To restrain the defendant permanently from demolishing the existing construction or interfering in the construction work of the plaintiff upon House No,250 Saddar Cantonment Hyderabad admeasuring 650 sq. ft. according to the said revised building plan.
(c)The defendant may be sadlled with the cost of the suit.
(d) Any other relief that this Hon'ble Court may deem fit and proper in the circumstances of the case may also be granted.
5. Alongwith the plaint, applicant moved an application for temporary injunction against the respondent for a restraint order from demolishing the existing construction and stoppage of on going construction on the site pending disposal of the suit.
6. The case of the respondent Board as reflected in its written statement as well as the counter- affidavit is that the applicant is the occupant of the aforesaid house measuring 490 sq. feet whereas exclusive ownership of the land in entire Saddar Bazar vests in the Federal Government.
According to the respondent additional frontage land measuring 160 sq. feet is the Government land on which applicant has no right and title to raise any construction. This piece of land was not granted to the applicant as old grantee who unauthorisedly and illegally occupied the said front area. While previous litigation between the parties is not disputed, it is urged that the applicant did not claim frontage land measuring 160 sq. feet in the previous suit and that he had rightly applied for approval of the building plan over an area measuring 490 sq. feet while he was fully conscious that the revised plan shall not be approved by the respondent and it was therefore, that he issued statutory notice alongwith the revised plan for the purpose of filing this suit. Issues relating to non- maintainability of the suit for want of a valid and legal statutory notice and for not exhausting the remedy available to the applicant, were also raised in the pleadings.
7. Upon hearing the learned counsel for the parties, learned Senior Civil Judge dismissed the injunction application which was impugned in Miscellaneous Civil Appeal No,38 of 1995 before District Judge, Hyderabad. This appeal was heard by an Additional District Judge but without any success hence this civil revision application.
8. At the hearing, learned counsel appearing in support of this revision application mainly relied upon the decree passed in Suit No,374 of 1978 in which a permanent injunction was issued against the respondent from demolishing the compound wall or any part of the western courtyard of the house by itself or through its agents, servants etc. as the courtyard with its compound wall was the compact part of his house. In the previous suit the applicant had in the alternative claimed the compound wall by way of adverse possession for more than 60 years as it was in existence at the commencement of Act, 1924 having acquired its possession through its predecessor in interest from time to time. It may be pertinent to observe that despite the service of summons the respondent in the previous suit though called upon to file a written statement did not file it within the statutory period with the consequence that the Court passed the judgment and decree in the suit under order VIII rule 10, C.P.C. It may further be observed that in the previous suit which was filed for a permanent injunction, no doubt the applicant claimed to have constructed compound wall by replacing a katcha wall with a pacca wall 4 feet high with the permission of the respondent Board vide Letter No,9/250/834, dated 27-7-1976 he had further asserted that the compound wall had been included in the plot in suit and the applicant as well as his predecessor-in-interest had used it for more than 100 years. In the earlier suit respondent by its letter, dated 20-5-1977 had called upon the applicant to demolish the said compound wall to which applicant had taken an exception and asked---for demarcation of the area through respondent officials but without any response. The said suit was filed in the wake of subsequent notice, dated 12-10-1978 requiring the demolition of the wall within three days.
9. The next contention of the learned counsel for the applicant is that subsection (6) of section 181 of the Act, 1924 lays down that where the Board neglects or omits for one month after the receipt of a valid notice to make and to deliver to the person who has given the notice, any order of any nature specified in this section and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or omission, then, if such neglect or omission continues for a further period of 15 days from the date of such communication, the Board shall be deemed to have given sanction to the erection or re-erection as the case may be unconditionally. No doubt this subsection is followed by a proviso having direct nexus with subsection (3) of extending the period of one month in cases where the Board has referred the application to the Military Estate Officer for his no objection certificate, the same is hardly attracted as it is not pleaded by the respondent whether applicant's case was referred to Military Estate Officer.
10.On the other hand learned counsel for the respondent has referred to extract from General Land Register showing area of the house as 490 sq. feet and vehemently urged that the applicant was fully aware that he was owner of the land to aforesaid extent of 490 sq. feet and therefore, rightly submitted a site plan for approval which was duly approved on 30-1-1995. Learned counsel submitted that the applicant was fully conscious of this situation and in the circumstances he had reason to believe that his revised site plan covering 650 sq. feet shall not be approved by the Cantonment Board. The next argument urged by the learned counsel is that there was no valid notice in terms of section 179 and as such notice being inherently invalid, concept of automatic approval would hardly arise. It was lastly submitted that the suit filed by the applicant before the Trial Court could not be maintained for want of statutory notice under section 273 of the Act, 1924 as any suit can be instituted against the respondent Board only after the expiry of two months from the date on which the cause of action arose whereas the notice in the instant suit is said to have been attached to the request for approval of revised building plan.
11.Learned counsel referred to the judgments reported as Muhammad Ilyas Hussain v. Cantonment Board Rawalpindi (PLD 1976 SC 785), Abdul Sattar Kotriwala v. Cantonment Board, Hyderabad (1988 CLC 1182) and Cantonment Board, Rawalpindi v. Muhammad Saeed (1995 M LD 883) whereas the learned counsel for the applicant relied upon Muhammad Shamim v. Additional Estate Officer (1994 M LD 1398).
12.While the cases cited on behalf of the respondent touch the root of the case and lay down a rule of law that prior notice may be not necessary in the case of a suit against the Board in which the only relief claimed is an injunction, of which the object would be defeated by giving the notice or postponement of this institution of the suit or proceedings. However, suit for a declaratory relief in terms of section 42 of Specific Relief Act would not be maintainable without a valid notice as contemplated by section 273 of the Act, 1924. The case relied upon by the applicant however deals with the question of grant of a temporary injunction in terms of Order XXXIX Rules 1 and 2, C.P.C. in the case of a public servant against Additional Estate Officer. Suffice it to say the case does not deal with the effect of absence or otherwise of statutory notice under section 273 of Act, 1924 was the suit as not directed against Cantonment Board.
13.In Muhammad Ilyas Hussain's case (supra) Supreme Court while dealing with the effect or otherwise of absence of a notice under section 273 of Act, 1924 allowed the plaintiffs to drop the relief for declaration in the suit being unnecessary and redundant. The suit which had been finally disposed of by the Courts below was remitted to the Trial Court for a decision in accordance with the law. This decision was followed by Muhamthad Zahoorul Hach J. (as he then was) in Abdul Sattar's case (supra) taking the view that the plaintiffs could be allowed to drop the prayer of declaration from the suit which was remanded for trial to the Court in accordance with the law. No doubt learned Single Judge of Lahore High Court in Cantonment Board, Rawalpindi case (supra) exhaustively dealt with the question of law raised before him in the context of various provisions of the Act, 1924 and interpretation of statutes, the fact of the matter is that all these judgments were directed against final decree passed by the original Court and either upheld or set aside by the Appellate Court. There was definite evidence by the parties in all the suits and the High Court as well as the apex Court had the benefit of deciding such questions after examination of the various questions of fact and law involved in the reported cases. The case in hand is, however, directed against an interlocutory order passed on an injunction application refused by the Trial Court as well as appellate forum. Suffice it to say, the question whether the applicant would like to drop the prayer for declaration in the suit filed by him is a question which can only be appropriately allowed or disallowed by the Trial Court and not by this Court is the exercise of limited revisional jurisdiction.
In the peculiar facts and circumstances of the case, I would advisedly refrain from expressing myself on the question whether the notice given by the applicant within the meaning of section 273 was invalid and proper, whether the revised plan is deemed to have been sanctioned by the respondent Board in the face of a prima face valid notice under section 179 and subsequent written communication, dated 13-6-1975 calling the attention of the Board to the neglect and omission on their part within the meaning of subsection (6) of section 181 and sanction to the building plan under the deeming clause. In fact such questions are not pure questions of law and decision thereon depends on the existence of certain facts which can only be established by appropriate evidence which is yet to be recorded.
14.For the limited purpose of temporary injunction, it may be pertinent to observe that there exists a final decree for permanent injunction in the previous suit in favour of the applicant which holds the field and, by no stretch of reasoning, can it be treated as nullity in law. Apparently, therefore, the applicant is entitled to protect and preserve his rights under the decree. Consequently, it can be safely said that he has raised serious questions of fact and law which require deeper consideration at the trial and, thus, he has been able to make out a strong prima facie case for the grant of a temporary injunction and, at least, a case for maintenance of the status quo.
15.Likewise, the balance of convenience would lay in favour of the applicant rather than the respondent as by reason of demolition of the structure raised by him, it is the applicant who would be put to greater amount of hardship and inconvenience to his utter frustration. Even the purpose and object of filing the suit may be vitiated and the relief asked for may be rendered infructuous.
The building has admittedly been erected in a residential locality and no serious prejudice is likely to be caused to the Cantonment Board if status quo is maintained pending the decision of the suit by a competent Court of law. On the aforesaid premises, it would be just, fair and logical to conclude that by refusal of temporary injunction, applicant is likely to suffer an irreparable loss which may possibly be not capable of being measured in terms of coins. Conversely, respondent is not likely to suffer an irreparable loss by continuance of status quo already obtaining for the last nearly two years.
16.For the aforesaid facts and reasons, I am clearly of the view that both the Courts below committed an error of law by not exercising jurisdiction vested in them and by not appreciating the questions of law in their proper prospective. Accordingly, revision application succeeds and is hereby allowed. During the pendency of the suit, respondent shall not demolish the existing construction on the site directly or indirectly. Costs to follow the cause.