(1) The plaintiff is the appellant. The suit is filed for an injunction restraining the defendants from interferring with peaceful possession and enjoyment of the joint passage and also restraining the 1st defendant from demolishing the constructions made and closing the joint passage. The 1st defendant is the hyderabad municipal corporation and the 2nd defendant is the owner of the neighbouring land. The averments in the plaint are that the plaintiff filed an application accompanied by plans on 1 - 6 - 1968 for issuance of a permit for construction of mulgies. In the absence of response from the 1st defendant the plaintiff started construction as per the proposed plan after expiry of 30 days and after giving notice to the 1st defendant under section 440 the hyderabad municipal corporation act (hereinafter referred to as h. M. C act) subsequently, however, the 1st defendant issued a permit date 21 - 11 - 1968 with some alterations in the proposed plan. Thereupon, the plaintiff sent a reply stating that the alteration of the plan is not in accordance with law. Despite the same, the 1st defendant issued notice under section 636 of h m c act to which the plaintiff sent a reply dated 9 - 6 - 69 through an advocate. The corporation staff visited the construction site and called upon the plaintiff to dismantle the construction which is in deviation of the sanctioned plan. Thereupon the plaintiff filed the suit for an injunction restraining the municipal [corporation from demolishing the structure. The plea of the defendant no. 1 is that the plaintiff submitted an application along with plans on 1 6 - 1968 for construction and it was refused on 23 - 8 - 1968 with certain remarks. Thereupon, the plaintiff again submitted an application along with plans on 4,11 1968 for sanction. The defendant sanctioned the permission as per the corrected plan and the same was received by the plaintiff on 26 - 11 - 1968. The plaintiff started construction subsequent to the issuance of permit on 26 - 11 - 1968' the plaintiff constucted a wall touching the mosque wall which is contrary to the sanctioned plan and also opened doors in contravention of the sanctioned plan. For the removal of the said deviations, notices under sections 461 452 and 636 of hmc act were issued to the pleintiff on 22 - 4 - 1969 30 - 4 - 1969 and 30 - 5 - 1969. The defendant denied that after expiry of 30 days from the date of the filing the initial application for permission, the construction was started after giving notice under sec. 440 of the hmc act. It is also pleaded that the suit is hit by section 685 of the h m c act as the suit is filed without waiting for the statutory period of 30 days after issue of notice as provided under section 685 of the act and as such the suit is liable to be rejected under order 47 rule 11 c p c. The registered notice dated 7 6 - 1969 was sent by registered post by the plaintiff on 8 - 6 - 1969 and the suit was filed on 10 - 6. 1969 without waiting for the expiry of period of one month next after the notice in writing has been given to the municipal corporation. The trial court held that the suit is hit under the provisions of section 685 (1) of hyderabad municipal corporation act as the plaintiff did not wait till the expiration of one month period. The trial court dismissed the suit as against 1s defendant holding that the suit is not maintainable and granted a decres against the 2nd defendant. As the 2nd defendant did not file any appea the decree to. That extent has become final. The plaintiff, aggrieved by the judgment in favour of the 1st defendant, preferred an appeal and the learned additional chief judge, city civil court, hyderabad confirmed the judgment of the trial court. The appellate court also considered whethe the notice under section 440 of the h. M. C. Act was given with regard to the commencement of the work pursuant to the plan submitted initially and whether the actions of the staff of the hyderabad corporation are actuated by mala fides and as such the notice under section 685 is not necessary. On both these points the appellate court found that the plaintiff failed to establish that a notice under section 440 of the act was issued to the 1 st defendant and that there is no material to hold that the officials of the corporation acted with mala fides.
(2) In the second appeal, the learned counsel for the appellant contended that the provisions of section 685 are not mandatory and both the courts below erred in holding that the suit is not maintainable. In any event, this is a case wherein the plaintiff submitted the plans end as there was no response from the municipal corporation within one month the right has accrued to the plaintiff to go ahead with the construction and a notice under section 440 of the h. M. C. Act was alto issued before commencement of the construction and in any event, the action of the municipal corporation is mala fide. In so far as the issuance of notice under section 440 of the h. M. C. Act and the allegation of mala fides, the appellate court gave a finding that the notjce is not issued and the mala fide intention is not established. This finding cannot be interfered within the second appeal under section 100 cpc and further this aspect was not touched upon or considered by the trial court. Even otherwise, when the initiation of proceedings for demolition are done under the provisions of the act the plaintiff cannot contend that the action proposed to betaken by the municipality is outside the purview of the provisions of the act and as such notice under section 685 is not necessary.
(3) Therefore, the only point that survives for consideration in the second appeal is, whether the suit is maintainable in view of tha provisions of section 685 of h m c act. Section 685 of h m c act is as follows:
"685: protection of persons acting under this act agalns suits: (1) no suit shall be instituted against the corporation or against the commissioner or a deputy commissioner or against any officer or servant, appointed under this act, in respect of any act done in pursuance or execution or intended execution of this act or in respect of any alleged neglect or default in the execution of this act - (a) until the expiration of one month next after notice in writing has been, in the case of the corporation, left at the chief municipal office and in the case of the commissioner or of a deputy commissioner or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney or agent, if any, for the purpose of such suit; or (b) unless it is commenced within six months next after the accrual of the cause of action"
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Section 685 (1) (a) envisages that the notice shall be given in writing regarding the contemplated suit and till the expiration of one month next after notice in writing has been given to the municipal office, the suit shall not be instituted. Section 685 (1) (a) relates to the embargo against the filing of the suit within the vulnerable period stipulated under this provision and clause (b) is concerned with the outer limit for initiating proceedings by way of suit. The object of section 685 is to give sufficient lime to the municipal corporation to consider whether the claim set up in the notice should be accepted or rejected. The municipal corporation being busy with multifarious activities is given sufficient time to consider about the validity and justification of the claim in depth and accept the claim or prepare for the resistance of the claim. The learned counsel for the appellant contends that the time contemplated under section 685 (1) is not mandatory and it works great hardship if the filing of the suit is stalled in some urgent situations and further no prejudice is caused to the municipal corporation if advance suit is filed. It is further contended that in the event of corporation deciding to defend the suit, it is immaterial if the suit is filed before or after the stipulated time. Even in a case where the suit is filed prematurely, the corporation decides to concede the claim, the corporation can be compensated by not mulcting with costs. It is also contended that section 80 cpc has been amended analogous to section 685 of h. M. C. Act by insertion of clause (2) permitting the filing of the suit with the leave of the court without serving any notice at all required under section 80 (1) cpc if the case warrants an urgent or im. Mediate relief. The learned standing counsel for the municipal corporation contends that this is a mandatory provision which has to be construed strictly and there is absolutely no warrant for relaxation whatsoever and as the plaintifff did not choose to wait till the expiration of one month, the suit is liable to be dismissed as not maintainable. 3. Section 685 expressly provides that unless the period of one month, next after the delivery of the notice expires, the institution of the suit is barred, it is a matter pertaining to the jurisdiction of the court to entertain the suit before the expiry of prescribed limit. The obligation is cast upon the court to reject the plaint where the suit appears to be barred by any provision of law. The language employed in section 685 of h. M. C. Act is imperative and does not admit of any intrusion of either hardship or prejudice. As contended by the appellant, it may be true that the corporation or government seldom responds to the claim and it is doubtful whether the object for which the time is prescribed is achieved it is also contended that the stock reply of the corporation or the govern. ' ment, is "the threatened suit will be awaited" and the instance of their conceding the claim is a freak. The absence of proper response or limping adherence to the provisions of the statute by the concerned parties cannot control the meaning, effect and impact of a particular provision. These considerations cannot make inroads into the mandatory character of the provision and any relaxation or dilution of the mandatory flavour nullifies the object and rigour of the provision.
(4) The learned counsel for the appellant has also relied upon sub - section (2) of section 80 cpc which has been brought into effect since 1976 for the proposition that the provisions in section 80 c p c have been relaxed viz. , the claimant is entitled tc file a suit before the expiry of time provided the matter is urgent and the leave of the court is obtained and in view of this legislative trend disclosed in section 80 (2) cpc the learned counsel for the appellant contends, that section 685 should not be construed strictly. This contention is not sustainable. sub - section (2) of section 80 cpc furnishes a clue to the interpretation that the provision is mandatory but for the said relaxation. The legislativemtent and declaration to give mandatory force to sub - section (1) of section 80 gpc subject to certain conditions enumerated in sub section (2) is abundantly clear. There is no corresponding amendment in section 685 of h. M. C. Act. The provisions of section 685 pertain to the jurisdiction of tne court to entertain the suit and imposes a ban on the instituon of the suit. It is true that the rigour of law has to be tempered with equitable considerations, but when the provisions are explicit and imperative they have to be enforced strictly even though prejudice is not caused there by to the party for whose benefit the provision is enacted.
(5) The learned counsel for the appellant has relied upon the decision reported in nani amma vs. State of kerala, air 1963 kerala 114. In this case, the plaintiff issued notice under section 80 cpc on 29 - 10 - 1952 to the district collector, quilon and instituted the suit on 10 - 1 1 - 1952 before the expiry of two months from service of notice. The kerala high court held that section 80 cpc does not expressly oust the jurisdiction of the court to try suits instituted before the expiry of the prescribed period and further no prejudice is caused to the government or the public officer if the suit is filed well before the stipulated time. I am not inclined to agree with the view of the kerala high court. The matter clearly relates to the jurisdiction of the court to entertain the suit and as such the question of prejudice, hardship and waiver are irrelevent. The learned standing counsel for the municipal corporation has relied upon the decision of the supreme court reported in b. R. Sinha vs. State of m. P. Air 1969 s. C. 1256. The supreme court while considering the impact and the compliance with the provisions of section 80 cpc laid down four propositions to consider whether the provisions have been complied with. (1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice. (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity; (3) whether a notice in writing has been delivered or left at the office of the appropriate authority mentioned in the section and (4) whether the suit is instituted after the expiration of two months next after notice has been so served and the plaint contains a statement that such a notice has been delivered or left. The next decision is that of the a. P. High court reported in d. Balakrishna murthy vs. Municipal commissioner, air 1961 a. P. 488. In this case the suit js filed by a government employee for alteration of his date of birth in the service register. The non - compliance of section 80 cpc in this case consisted of filing of the suit before the expiry of 2 months next after the notice in writing has been delivered to the respondent. This court held that the suit filed before the statutory period under sec. 80 c p c is fatal io the maintainability of the suit and the suit must be deemed not to have been instituted at all. The madras high court in the decision reported in union of india vs, devanagere cotton mills air 1976 madras 20 held that the suit was premature since the period prescribed in sec. 80 c p c for the institution of the suit has not expired on the date when the suit was instituted. To the same effect is another decision of the madras high court reported in m k r chettiar and co. Vs. Union of india, air 1971 madras 34. The bombay high court in ebrah - imbhai vs. State. Air 1975 bombay 13, held that the bar under section 80 c p c is a prohibition against the institution of the suit itself. The patna high court also has taken the same view in the decision reported in lakshmi narain vs. Union of india, air 1962 patna 64. In view of the unequivocal bar contained in section 685 of h m c act the considera - tions of hardship and ptejudice are not germane and the suit filed before the expiry of one month period specified in section 685 of h. M. C. Act is not maintainable. In the result, the appeal is dismissed, but in the circumstances without costs. Before parting, i may mention that it is high time that an amend - ment to section 685 of the hyderabad municipal corporation act, 1955 analo - gous to sub - saction (2) of section 30 c p c is highly desirable to aive prompt relief in deserving cases.