Harbans Singh vs The Municipal Committee, Talwandi Bhai, Tehsil and Distt Ferozepore and another

Gokal Chand Mital, J.—After hearing the learned counsel for the parties, I am of the view that the judgment and decree of the learned District Judge, Ferozepore, cannot be sustained. Harbans Singh had earlier brought a civil suit to challenge the action of Municipal Committee, Talwandi Bhai in interfering with the plaintiff''s lawful possession of the property in dispute. In that suit, the Municipal Committee raised a preliminary objection that the civil suit was not competent as notice u/s 49 of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act) had not been served. The suit was dismissed after recording a finding that notice u/s 49 of the Act was not issued and, therefore, the suit was not competent. At the same time, the trial Court also went into the merits of the case and found against the plaintiff. The plaintiff filed an appeal but that appeal was got dismissed as withdrawn as he was advised to file a civil suit after serving a notice u/s 49 of the Act and thereafter the present suit was filed. The suit was opposed by the Municipal Committee and one of the pleas raised was that the present suit was not maintainable in view of the decision of the earlier suit. The trial Court found that the earlier suit was mainly dismissed because notice u/s 49 of the Act had not been issued although there were certain observations on merits as well. Therefore, he concluded that the present suit was not barred because it was filed after the issue of notice u/s 49 of the Act. On merits, the trial Court found in favour of the plaintiff and decreed the suit and restrained the Municipal Committee from interfering with the lawful possession of the plaintiff with the property in dispute. The Municipal Committee went up in appeal and the learned District Judge upset the finding of the trial Court on the maintainability of this suit without going into the merits of the case. It concluded that in view of the earlier decision, the present suit was not maintainable. The plaintiff has come to this Court in this second appeal.

After hearing the learned counsel for the parties, I am of the view that the learned District Judge clearly fell in error in holding that the present suit was not maintainable in view of the dismissal of the earlier suit. It is not disputed by the learned counsel for the Municipal Committee that one of the findings recorded in the earlier suit was that notice u/s 49 of the Act was not issued and, therefore, suit was not competent. It is equally not disputed by the learned counsel for the plaintiff that there were certain observations on merits in the earlier decision. However, the fact remains that unless notice u/s 49 of the Act is issued, a suit would not have been competent and, therefore, the finding recorded by the Court in the earlier suit would not operate as res judicata, nor would it have the effect that a fresh suit would not be maintainable. It is not disputed that notice u/s 49 of the Act was issued by the plaintiff now and the suit was filed thereafter. Therefore, the suit was clearly maintainable.

For the reasons recorded above, this appeal is allowed; the judgment and decree of the learned District Judge dated 8-6-1982 are hereby set aside and the case is remitted to the learned District Judge, Ferozepore to restore the appeal to its original number and decide the same on merits under issues 2, 2-A and 3. The parties, through, their counsel, are directed to appear before the learned District Judge, Ferozepore, on 22-11-1982. However, there will be no order as to costs.