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Regular Second Appeal No. 291 of 1980, decided on 13th June, 1981.

‑‑S. 100‑Second appeal‑Contention not raised before Courts below‑Held, cannot be allowed to be raised in second appeal for first time.

‑‑S. 100‑Second appeal‑Question of fact‑Held, cannot be gone into in second appeal.‑[Question of fact].

‑‑S, 78‑Demolition of unauthorised construction‑Notice to occupant‑Municipal Committee in earlier, suit not contesting challenge to its power to issue notice leading occupant to have suit disposed of as infructuous‑Conduct of Municipal Committee mani festing its acceptance that construction objected to was authorised Demolition of such construction without notice‑Held, unautho rised and Municipal Committee liable for damages. [Damages].

Administrator, Corporation of Lahore v. Mangal Sen A I R 1945 Lah.

151 distinguished.

Quaim Din v. Muhammad Yaqub P L D 1978 Lah. 842 ref.

Fayyaz Husain Kadri for Appellant.

Muhammad Rashid Ahmad for Respondent.

Dates of bearing: 27th May and 3rd June, 1981.

This second appeal is directed against the judgment and decree dated29th of January, 1990 passed by learned Additional District Judge, Lahore, whereby he dismissed the first appeal of the appellant against the judg ment and decree dated 6th November, 1978 of learned Civil Judge, Lahore, whereunder a decree of recovery of Rs. 5,000 was passed in favour of the Respondent/ Plaintiff.

2. The respondent had brought a suit against the appellant for recovery of immovable property and compensation amounting to Rs. 5,000 on the averments that he had set up a wooden stall on a piece of rented land belonging to one Mst. Naeema Khanum. It was asserted that the respondent had not encroached upon any land of the appellant despite that he was served with a notice dated 5th March, 1971 to remove the said wooden stall. This notice was challenged in Civil Court by filing a suit and on account of statement of counsel for the appellant to the effect that no action would be taken in pursuance to the aforesaid notice the suit was disposed of as having been rendered infruc tuous. It was also asserted in the plaint that after about two years another notice dated 18th November, 1972 was issued calling upon the respondent to remove the stall which was replied and the appellant was reminded that the notice was illegal. The respondent also took the plea in the suit that the notice was not pursued further after the reply sent in the above terms for almost one and a half years. Then abruptly on 13th February, 1974 the officials of the appellant illegally removed the stall and the electric meter and that the appellant withheld these articles despite they were called upon to deliver back the articles through a notice in writing but this notice also remained un replied.

3. The appellant controverted the above‑mentioned assertions in its written statement but failed to produce any evidence to substantiate its pleas despite grant of time and opportunities by the trial Court. The evidence of the appellant was closed and in the circumstance the trial Court decreed the suit on the basis of evidence produced by the respondent. As the first appeal filed by the appellant remained unsuccess ful, hence this second appeal.

4. Learned counsel in support of this appeal contended that the learned Courts below erred in law in decreeing the suit as the notice dated 18th November, 1972 as required by section 78 (2) of the Municipal

Administration Ordinance, 1960 was served on the respondent and as the same remained uncomplied, the staff of the appellant acting within lawful authority demolished the wooden stall, relying on Administrator,

Corporation of Lahore v. Mangal Sen (A I R 1945 Lah. 151) argued that the notice cannot be treated to have become infructuous or ineffective merely on account of efflux of time. Elaborating this submission he submitted that the construc tion of the wooden stall was without any sanction and that assuming a second notice was to be given, the failure to give the same would not furnish cause of action to claim damages as neither any prejudice was caused nor any loss accrued due to non‑service of a notice.

5. Learned counsel for the Respondent argued that the appeal is incompetent as the amount, claimed in the suit was Rs. 5,000, only and under section 102 (2), C. P. C. second appeal lies only when the amount or the value of the subject‑matter of the original suit exceeds Rs. 50,000. He further submitted that at this stage the appellant may not be allowed to convert the appeal into Revision Petition under section 115, C. P. C.

The preliminary objection is without any merit as the word "fifty" in place of "two" was substituted by Ordinance 10 of 1980, enforced on 26th March, 1980 whereas the judgment impugned in this appeal is dated 29th January, 1980 and the appeal was lodged on 25th of March, 1980 i.e one day prior to the enforcement of the aforesaid Ordinance. It is apparent that on the date, i.e. 29th January, 1980 the impugned judgment was passed and on the date i.e. 25th March, 1980 the appeal was instituted unamended section 102

(2) was in force. The relevant part of section 102, C. P. C. reads as under :‑

No second appeal lies : (a) ...............

(b) in any other suit, when the amount or value of the subject‑matter of the original suit does not exceed Two thousand rupees".

In this case as the amount of the subject‑matter of the original suit exceeds Rs. 2,000, second appeal is maintainable and is, therefore, held, to be competent and the objection is repelled. The order dated 27th May, 1981 treating the appeal as revision is, therefore, recalled.

6. On merits learned counsel for the respondent argued that according to the practice of the appellant in case of any alleged unautho rized construction, firstly, a notice requiring demolition/alteration within 7 days is served and in case of non‑compliance thereof another notice of 48 hours is given before carrying out the demolition on the spot. Learned counsel for the appellant concedes that the Municipal Committee has been following the said practice by giving two notices. But in this case this could not, be done as beautification of The Mall Road was to be effected emer gently on the eye of Islamic Summit. Learned counsel also contended that the appellant is estopped from issuing any notice of demolition or from carrying out the demolition at the site in view of the statement of the counsel in the earlier suit to the effect that no action would be taken and the withdrawal of the earlier notice on account of which Respondent did not press his suit and had it disposed of as having become infructuous. Reliance is placed by the learned counsel for the Respondent on the observations made in Quaim Din v. Muhammad Yaqub.( P L D 1978 Lah. 842)

7. I have gone through the judgments of the learned Courts below and have considered arguments addressed by the learned counsel for the parties. I find that the contentions raised by the learned counsel for the appellant. in this Court were not raised before the learned Courts below as the same do not find mention in any of the two judgments. The petitioner cannot be allowed to take these pleas in second appeal for the first time. Even otherwise, the contention that failure to give notice does not furnish cause off action for claiming damages as no prejudice or loss was caused has no force as the question whether any damage or prejudice was caused or not is a question of fact. No evidence was produced by the petitioner to prove that no loss was occasioned to the respondent by the act of demolition carried out on the spot. On the other band, it is in the evidence that the wooden stall was not only demolished but was also taken away alongwith the electric meter by the Officers of the appellant.

8. Coming to the next contention that as, the notice dated 18^th November, 1972 was admittedly served the purpose of law relating to service of notice under section 78 stood complied with and the said notice remained in operation and had not become ineffective with the passage of time as the notice cannot be treated to have become infructuous with the mere efflux of time. In support of this contention observations made in Administrator, Corporation of Lahore v. Mangal Ser. were relied. The precedent case is distinguishable as it was held in the circumstances of that case that the Court can not infer abandonment or withdrawal of notices. It was observed that :‑

"It may well be that in a proper case a Court could infer the abandon ment or withdrawal of a notice but on the materials before this Court in the present case it is impossible to come to such a conclusion."

It follows that as a matter of general proposition it was not held that a notice which is not acted upon for quite a length of time cannot lead, to the inference of abandonment or withdrawal of the notice. In the instant case after having made the statement in the earlier suit and having not pursued the matter despite a reply in which the power to issue the notice was challenged the appellant Committee appears to be not justified in relying on the notice dated 18th November, 1972. Learned counsel for the appellant relied more on the fact that in the conditions in which the beautification of Mall Road (Shahrah‑e‑Quaid‑i‑Azam) at the eye of Islamic Summit was being undertaken a fresh notice was not possible. This hardly affords basis for non‑compliance of the provisions of section 78 of M.A.O. Moreover the appellant was estopped to invoke the said provision in view of the conduct of the appellant Committee in not contesting the earlier suit which led the respondent to have the suit disposed of as infructuous. This conduct manifested the accep tance by the appellant Committee of the wooden stall as authorized, construction.

9. In the circumstances the demolition of the wooden stall was unauthorized and the right of the respondent to claim the damages cannot be denied. As regards the quantum of damages, the same was not seriously challenged before me in view of the fact that the appellant had failed to adduce any evidence whatsoever on this‑ point at the trial, The net result of the above discussion is that the Second Appeal has no merit and is, therefore, dismissed with costs.

S. Q. Appeal dismissed.

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