2004 PLP 685 (MLD)

Ss.42 & 54

Cantonments Act. (II of 1924), S.273

Suit for declaration and injunction against Cantonment Board

Service of prior notice on Board

Dismissal of suit in view of provisions of 5.273 of Cantonments Act, 1924 due to addition of relief of declaration-- ,.Validity

Supreme Court permitted deletion of relief of declaration and continuation of suit for relief of permanent injunction. Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785 fol. (c) Cantonment Act (II of 1924)

S.273

SpecificRelief Act (I of 1877), Ss.53 & 54

Civil Procedure Code (V of 1.908), O.XXXIX, Rr.1 & 2

Suit for injunction to restrain Cantonment Board from demolishing construction

Temporary injunction

Trial Court while granting temporary injunction allowed plaintiff to continue with exterior or interior finishing work of building

Validity--Allowing such relief to plaintiff was beyond scope of S.53 of Specific Relief Act, 1877 and O.XXXIX, C.P.C.

New situation vis-a-vis suit property could not be created under protection of stay order or injunction

High Court accepted revision petition with direction to parties to maintain status quo qua suit property. Waqarul Haq Sheikh for Petitioner. Nemo for Respondents. Date of hearing: 10th November, 2003. On 17-3-1997 the respondent filed a suit against the petitioner. The relief claimed in the plaint was a decree for permanent injunction restraining the petitioner from causing any demolition of the initial or any completed construction or in any manner causing any interference in the construction carried out by the plaintiffs on her commercial plots bearing Nos.83, 84 and 85, Adam Jee Road, Rawalpindi Cantt., according to the plan, appended with the plaint as Annex-I. The suit was contested by the petitioner by filing a written statement and denying the contents of the plaint. It was objected that the construction has been raised and is continuing without sanction of the construction plan. A prayer was made that the plaint be rejected under Order VII, rule 11, C.P.C. The learned trial Court observing that whereas relief for declaration ought to be sought, it has not been sought to avoid the effect of section 273 of the Cantonments Act, 1924, which bars a suit for declaration in the absence of a mandatory notice, proceeded to reject the plaint on 24-9-1997. A learned ADJ, Rawalpindi, allowed the appeal and remanded back the case for trial on merits vide order dated 10-12-1997.

2. Learned counsel for the petitioner, in the first instance, tried to argue that the learned ADJ has acted illegally in reversing the order rejecting the plaint. However when confronted that the suit was for permanent injunction and there was no need to serve a prior notice in terms of section 273 of the Cantonments Act, 1924, he does not press the said point. I may note here that this matter stands settled by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ilyas Hussain v Cantonment Board, Rawalpindi (PLD 1976 SC 785). Their Lordships have held that it is not always necessary for the plaintiff to sue for declaration of his title as substantive relief and ask for injunction only as a consequential relief. In absolutely similar circumstance where a notice had been issued and the petitioner had, in fact, filed a suit for declaration but it was dismissed because of the said provisions of law i.e. section 273 of the Cantonments Act, 1924 the Hon'ble Supreme Court permitted the deletion of the relief of declaration and continuation of suit for relief of permanent injunction.

3. The learned counsel, however, drawn my attention to the impugned order passed by Malik Ata Rasool Joya, learned ADJ, Rawalpindi, whereby he has also directed the petitioner to continue with the exterior or interior finishing work of the building. This, of course, is beyond the powers under section 53 of the Specific Relief Act as also Order XXXIX, C.P.C. because a new situation vis-a-vis the property in suit cannot be allowed to be created under the protection of a stay order or injunction. The civil revision accordingly is disposed of with the direction to the learned trial Court to proceed further with the suit and to decide the same within six months of the receipts of this order and meanwhile both parties to maintain status quo qua the suit property. Nod orders as to costs. S. A. K./C-1/L Order accordingly.