1987 C (PLP)

(1‑A) Whether the defendant is estopped from refusing the sanction in question? (2) Relief.

5. The learned trial Court vide its judgment, dated 7th of March, 1966 dismissed the suit of the respondent mainly on the basis of findings on issue No. 1.

6. The respondent feeling aggrieved filed an appeal before the learned Additional District Judge, Lahore who by his judgment, dated the 10th of November, 1966 accepted the same and setting aside the judgment and decree of the trial Court decreed the suit of the plaintiff‑respondent by granting the following declaration:‑‑ "Order, dated 13th August, 1960 of the defendant‑Corporation refusing to sanction the building plan Application No. 32 of 1960 of the plaintiff‑appellant is illegal, arbitrary and oppressive." The authorities of the appellant‑Corporation were also permanently restrained from interfering with the plaintiff‑respondent's right to construct a new 'Sabat' and a kitchen and a bath‑room thereon.

7. The appellant‑defendant being dissatisfied has come up in the present appeal.

8. The learned counsel for the appellant raised the following contentions:‑‑ (1) That having observed that Taj Din was a necessary party to the controversy, the lower appellate Court erred in not directing the impleadment of Taj Din and thereafter remanding the case for adjudication afresh; (2) That the learned Additional District Judge while deciding the appeal did not take into consideration the fact that as on the date of passing of the order by the appellant on 30th of August, 1960 Ordinance No. X had been promulgated and, therefore, the action taken by the appellant was not under section 266 of the Municipal Corporation Act of 1941; and (3) That the learned trial Court having not given any finding on issue No. 1‑A, the learned lower appellate Court should have remanded the case for finding on this issue if it had come to the conclusion that the finding of the trial Court on issue No. 1 had to be reversed.

9. On the other hand, the learned counsel for the respondent contended: First, that the controversy as to Taj Din being a necessary party or otherwise was not germane to the decision in appeal before the lower appellate Court, the application of Taj Din for being impleaded as a party having been dismissed by the trial Court and the revision against the said order having failed in the High Court the controversy had been set at rest finally; Secondly, that neither in the grounds of appeal before this Court nor before the lower appellate Court the plea being now raised as to the applicability of Ordinance X of 1960 qua the impugned order of the appellant, dated 30th of August, 1960 having been raised the appellant cannot raise this contention now as in effect it is a factual controversy and should have been set up in the pleadings before it could be urged. In the same context the learned counsel submitted that it is not only the order of 30th of August, 1960 which has been challenged but the same being based on an earlier order as is apparent from the order itself the orders of the appellant earlier passed were also in challenge when admittedly the law applicable was the Municipal Corporation Act; Thirdly, that the 'Sabat' was an existing structure since 1917‑18 and no valid exception to the reconstruction thereto could be raised by any one especially when the 'Sabat' is in the ownership of the respondent and no claim was lodged by any party claiming any right in the passage under the 'Sabat', which passage was allowed to be used without any hinderance even after the intended construction; and Lastly, that the order of the appellant having been passed without first giving an opportunity to the respondent to plead against the same was illegal and void.

10. Having given consideration to the controversy involved I am of the view that the contentions raised on behalf of the appellant have no force. The first contention of the learned counsel for the appellant obviously has no force in view of the position that the application of Taj Din for being impleaded as a party was rejected and the revision " against that order had also failed. He having not further challenged the order of the High Court the said order had attained finality and this point was, therefore, not germane to the controversy before the lower appellate Court. Otherwise also the appellant has no locus standi to raise this plea as it in no manner has suffered therefrom.

11. Taking now the second contention of the learned counsel for the appellant I suffice by observing that it has been admitted before me that the point now being canvassed was neither raised before the lower appellate Court nor is a ground in the appeal before me. The point involved does touch the factual controversy also as pointed out by the learned counsel for the respondent and, therefore, the same cannot be allowed to be urged at this late stage especially when no application even has been made for taking up this plea as an additional ground.

12. Adverting now to the only other contention of the learned counsel for the appellant, it may be observed that there was no necessity of remanding the case even if it be assumed that issue No. 1‑A had not been decided by the trial Court. The decision on this issue by the lower appellate Court is based admittedly on the available evidence and there was thus no occasion at all for remanding the case as sufficient material was available on record for effectual adjudication of the controversy embodied in the issue.

13. Apart altogether from the above position it may also be observed that the trial Court has also given finding on this issue though it is only based on the discussion made by it on issue No. 1.

14. Before parting with the case I may also observe that on the factual plane as well the order of the appellant‑Corporation appears to be unjust, illegal and improper as the 'Sabat' in question on which the bath‑room and kitchen are intended to be constructed in the first and the second storeys respectively had been existing as such since 1917‑18 which position has not been controverted by the learned counsel for the appellant and, therefore, there could possibly be no impediment in the way of sanctioning of plan so as to reconstruct the said 'Sabat'.

15. In view of the foregoing discussion I find no merit in this appeal, which is accordingly dismissed with costs. M.Y.H./756/L Appeal dismissed.