BASHIR AHMAD Vs. HIRA LAL
LAWS(J&K)-1982-9-10
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 16,1982

BASHIR AHMAD Appellant
VERSUS
HIRA LAL Respondents

JUDGEMENT

- (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 herein.
(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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