BASHIR AHMAD Vs. HIRA LAL
HIGH COURT OF JAMMU AND KASHMIR
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(1.) THIS revision petition is directed against an order passed by the District Judge at Srinagar restraining the defendants from demolishing
the suit property, concomitantly calling upon them to file their
objections to the injunction sought for by the plaintiff respondent No. 1
(2.) RESPONDENT No. 1 brought a suit for declaration and injunction against the present ptitioners and the Muncipality of Srinagar,
respondent No. 2 herein. Alongside, he also made an application for an
interim injunction restraining the defendants from demolishing the suit
building of which he claims to be a tenant under the present petitioners.
On 11.2.1982 the learned District Judge passed the following order: -
"This application has been presented by the learned counsel for
the plaintiff/petitioner which is supported by an affidavit. Issue notice
to other side. Since the application is supported by an affidavit,
therefore a prima face case is made over for issue of temporary
injunction, as prayed for in favour of the plaintiff/petitioner against
the defendants/non -applicants. Therefore, a temporary injunction as
prayed for is granted in favour of the defendants/non -applicants. This
order is passed subject to the objections to be filed by other side. Put
up the application on 24.2.1982."
On the following day he passed yet another order which reads as
under : -
"Issue notice to the partys counsel for tomorrow. Demo -1 tiod of
any kind of the said property be stopped."
(3.) BOTH the orders as appears from their apparent tenor are purely interlocutory in character though, there can be no manner of doubt that
they are still appealable orders. Even so under the present circumstances
of the case, especially keeping in view the averments made in the plaint
it is not possible for me to dispose of this revision petition on merits.
It is better that the petitioners file their objections before the
District Judge and if the District Judge on hearing the parties still
makes the injunction absolute then they have every right to come to this
court in appeal.
Mr. B. A. Khan however vehemently argued that the suit was barred in view of the mandatory provisions of section 57 and 57 -B of
Jammu and Kashmir Municipal Act, 2008. Section 57 provides that no suit
against a Municipality shall lie in respect of any act purporting to be
done by it or its officers provided one months notice is given to
Municipality or its officer as the case may be. Mr. Khans contention is
that no such notice having been made in the plaint, the suit was not
maintainable. Suffice it to say that section 57 is encted for the
Municipality. It is open to the Municipality to raise the plea of
non -service of notice or it may even waive the non -service of such a
notice. At least the petitioners have no right to question the
maintainability of the suit, on the ground that no notice in terms of
section 57 was served on the Municipality or its officers. Mr. Khan then
invited my attention to section 57 -B of said Act. To bring home his point
that even an exparte injunction could not have been issued against the
Municipality without affording it a reasonable opportunity of showing
case against it. There appears to be some force in this argument. But
here also this provision canot come to the rescue of the petitioners.
What section 57 -B provides is that no temporary injunction can be issued
against a Municipality without hearing it. The injunction has no doubt
been issued but the Municipality does not seem to be aggrieved of it as
it has not challenged the aforesaid order in revision before me. The
challengers are the petitioners alone who cannot derive any benefit out
of the provisions of section 57A, which stanes there only for the benefit
of the Municipality or its officers. That apart, the question as to
whether or not the act partorting to be done by the Municipal Act is a
mixed question of law and fact which can be judged determined only o the
basis of adequate pleadings and proof necessary. It is a fortiori
necessary that the defendants including the petitioners file their
objections to the present petitioners file their objections to the
proposed order of injunction before the trial court plead all necessary
facts therein disentitling the plaintiff to the relief prayed for.;
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