Mohd. Hasham and others vs Hyderabad Municipal Corporation

Qamar Hasan, J.—The only question to be considered in this appeal on behalf of the plaintiffs is whether the First Additional judge, City Civil Court was right in dismissing the suit by his Judgment and decree of 28th October, 1953, on the preliminary ground that no previous notice as required by S. 447 of the Hyderabad Municipal Corporation Act has been served upon the respondent before the institution of the suit.

It is an admitted fact that no such notice has been served. The argument in the Court below and before us was that as the respondent has passed a resolution on 10th April, 1952 empowering itself to levy fees on the slaughter of animal in slaughter-houses, which it was not competent to do, the only remedy for the appellants was seek a declaration and injunction, and that S. 44 of the said Act did not apply to such relief.

In support of this contention, reliance was placed on certain authorities which need not on (sic) in, view of the Privy Council Judgment in the case of Bhagchand v. Secy. of State, AIR 1927 PC 126 (A) in that case, it was held that S. 96, CPC has to be strictly complied with and it is applicable to all forms of action and all lands of reliefs. Their Lordships overruled the view of the Bombay High Court which it bad taken in Naginlal v. Official Assignee, ILR 37 Bom 243 (B) and Secretary of State v. Ghulam Rusul, ILR 40 Bom 392: AIR 1916 Bom (sic) (C). The Bombay authorities no doubt support the contention of the learned Advocate for the appellants.

These suits were to restrain by injunction the commission of some official act prejudicial to the plaintiff. It was held that if the immediate result of the act would be to inflict irremediable barm. S. 80 does not compel the plaintiff to wait for two months before bringing the suit, though if nothing to be apprehended beyond what payment of damages would compensate, the rule is otherwise and the section applies. Section 447 of he Hyderabad Corporation Act is substantially the same as S. 80 of the Civil Procedure Code. Nothing has been urged to prevent us from interpreting former section as has been done by Privy Council in the Bhagchand''s case (A).

Before we conclude, we may point out that the Learned Additional First Judge ought not have dismissed the suit but rejected the plaint.

In the result, the appeal fails. The plaint however would stand rejected. In the circumstances of this case, each party will bear his own costs in this Court and in the Court below.