MEMOONA BI Vs. MUNICIPAL CORPORATION OF DELHI

JUDGEMENT

(1.) [On 7-11-58, the D.D.A. seat notice to appellant saying that her property had become unfit for habitation and she should carry out necessary repairs. She replied that she had applied for sanction of Corporation. Latter informed her in 1959 that sanction for repairs was not necessary. Nothing was done until 1962 and the Corporation did the said repairs and demanded the expenses from the appellant. She sued the Corporation claiming that expenses could not be claimed without reference and determination by the District Judge. The defence was that suit was barred by S. 30 of Slum Areas Act and also for want of notice U/S 478 (1) of Municipal Act. Trial Court and 1st appellate court dismissed the suit and appellant filed 2nd appeal in High Court.] Para 7 onwards judgement is :-

(2.) The first question raised on behalf of the appellant was that the decision of the Courts below, to the effect that the suit of the appellant was not maintainable in the absence of a notice under Section 478 (1) of the Corporation Act, was based on a misconstruction of the provisions of sub-sections (1) & (3) of the said Section as also an erroneous assessment of the nature of the suit filed by the appellant aad it was contended that while on its true interpretation and meaning, Section 478 bars the institution of suits in the absence of a notice only if the suit claimed a principal relief besides one of injunction, the suit of the appellant though described as a suit for "declaration and injunction. It was further, argued that in construing a suit to determine if it fell within the exception provided in sub-section (3) of Section 478 of the Corporation Act, it must be determined as to what was the principal relief sought in the suit and the existence of any subsidiary or other relief which was unnecessary to entitle the plaintiff to the relief of injunction, had to be ignored.

(3.) The finding of the Courts below on this question was, however, sought to be justified on behalf of the respondent on the ground that the plaintiff's suit was ex-facie one "for declaration and injunction" and clearly felt within the mi chief of sub-section (1) of Section 478 of the Corporation Act being a . suit other than the suit for a mere injunction and was beyond the scope of the saving provisions contained in sub-secticn (3) of that Section.