1988 PLP 1182 (CLC)

This Revision is directed against the judgment and decree of Ist Additional District Judge, Hyderabad, dated 16‑7‑1980, who had set aside the decree granted by the Civil Judge, Hyderabad on 11‑5‑1966 decreeing the Suit No. 704 of 1963 of the applicant filed for declaration and injunction.

2. The gist of the relevant facts is that the applicant had constructed a house after getting the plan sanctioned from the Cantonment Board, but he had forgotten to include the ventilators and W.C. and Urinal in the plan. However, in the building constructed by him he opened 17 ventilators in the building in different storeys and also made one W.C. and Urinal on the ground floor in the open space. He was issued a notice by the Cantonment Board for shutting off the 4 ventilators on a ground floor and demolishing the W.C. and Urinal on the same floor. He applied for the modification of the senetioned plan, but the same was not allowed and even his appeal met with failure. He filed a Suit for declaration and injunction. The Suit was resisted by the respondent No.2, Bashir Ahmed, who was the neighbour of the applicant. The Cantonment Board, however, did not resist the suit. The Civil Judge decreed the suit after recording of the evidence and allowed the declaration as well as the injunction sought by the plaintiff applicant.

3. The respondent No.2 Bashir Ahmed, filed appeal, which was allowed by the Ist A D J, Hyderabad on the ground that section 273 of the Cantonments Act bars a suit against the Cantonment Board without giving of requisite notice as it was mainly a suit for declaration and the relief of injunction was merely ancillary. It is an admitted position in this case that the requisite notice was not given by the applicant to the Cantonment Board. It has been held by the Civil Judge that 4 ventilators objected to by the respondent No.2 are 7 feet above the ground. There was, however, no objection to the opening of the other 13 ventilators.

4. The appellate Court also observed that the ventilators have been installed in violation of sanctioned place and the W.C. was constructed on public property. However, the main basis of the decision of the appeal is section 273 of the Cantonment Act, which reads as under: ‑ "273. (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 hereunder, 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 (3) 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. (4) Nothing in sub‑section (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 proceedings."

5. However, Mr. G.H. Abbasi, learned counsel for the appellant has placed his reliance upon P L D 1976 SC 785 and has also made a prayer that the appellant wants to drop a relief or the prayer of the declaration from the suit, which has been filed by him. I find that the Supreme Court in that case has allowed the prayer of deleting of the prayer of declaration in such petition after special leave to appeal before the Supreme Court. In that case the suit had been filed against the Cantonment Board for declaration and injunction, but the same was dismissed on the ground that notice not having been given as required under section 273, the suit was barred as the main prayer was of declaration. The appeal in that case also met the same fate and revision before the High Court was also dismissed. But Vie Supreme Court entertained the Civil Petition for Special Leave to Appeal, allowed the dropping of the prayer of declaration and after converting it into appeal allowed the same and set‑aside all the judgments of the lower courts below and remanded the suit for trial to the trial Court for its disposal in accordance with law.

6. Mr. Raja Qureshi, appearing for respondent No.2, did not contend otherwise and stated that this is the final view of the Supreme Court.

7. That being the position, I allow the applicant to drop the prayer of declaration from his suit. The net result is that the suit is now for injunction only and the same is remanded for trial to the trial Court in accordance with law. I have set‑aside the judgments and decrees of the two lower courts, namely, dated 16‑7‑1980 and 11‑5‑1966. The cost would abide the result of the suit. The suit is directed to be decided with maximum speed. H.B.T./A‑250/K , Order Accordingly.