Mohammad Hasham And Others v. Hyderabad Municipal Corporation, By Commissioner .

Judgement

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 had been served upon the respondent before the institution of the suit.

2. 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 had passed a resolution on 10th April. 1952 empowering itself to levy fees on the slaughter of animals in slaughter-houses, which it was not competent, to do, the only remedy for the appellants was to seek a declaration and injunction, and that S. 447 of the said Act did not apply to such relief.

3. In support of this contention, reliance was placed on certain authorities which need not be discussed in view of the Privy Council Judgment in the case of Bhagchand v. Secy, of Slate, AIR 1927 PC 176 (A). In that case, it was held that S 80, Code of Civil Procedure has to be strictly compiled with and it is applicable to all forms of action and all Kinds of reliefs. Their Lordships; overruled the view of the Bombay High Court which it had taken in Naginlal v. Official Assignee, I L R 37 Bom 243 (B) and Secretary of State v. Ghulam Rusul, ILK 40 Bom 392 : (AIR 1916 Bom 296) (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 resuh of the art would be to inflict irremediable harm. 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 the former section as has been done by the Privy Council in the Bhagchands case (A).

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

5. 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.

Order accordingly.