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Regular Second Appeal No. 507 of 1977. decided on 6th December, 1981.

----S. 119 and Specific Relief Act (I of 1877) S. 56 (i)‑Suit for restraining construction filed before sanction of building plan by Municipal Corporation, held, not barred.

.‑. S. 100‑Second Appeal‑Objections that appellants put in certi fied copy of decree after expiry of period of limitation for filing appeal and impleaded one of defendants who died as respondent in appeal‑Objections, held, not fatal to appeal.

Muhammad Siddique Chaudhry for Appellants.

Younas Khan for Respondents.

Date of hearing : 6th December, 1981.

The events and circumstances culminating in filing of this second appeal against the judgment and decree of the learned Additional District Judge, dated the 14th July, 1977 dismissing the appellants' first appeal against the judgment and decree of the learned Civil Judge, Lahore, dated 6th July, 1974 whereby the appellants' suit for issuance of permanent injunction restraining the respondents from raising construction in Agha Street and Khadim Street in Nawan Kot was dismissed, may be shortly stated in the following words. On the basis of alleged purchase of land the respondents wanted to set up construction at the place which the appellants considered to be public street. After obtaining the consent in writing of the Advocate‑General, Punjab, in accordance with the provisions of section 91 of the Code of Civil Procedure, the appellants instituted suit on the 11th April, 1974, for perpetually injuncting the respondents from constructing anything in the street in dispute. On the 6th July, 1974 the learned trial Civil Judge rejected the appellants' application for grant of temporary injunction pendente lice and dismissed their suit on the ground that it was barred under section 119 of the Municipal Administration Ordinance, 1960, and section 56 (i) of the Specific Relief Act, 1877, because the appellants could avail of the remedy of appeal provided by section 11.9 of the aforementioned Ordinance against the order of the Municipal Authorities sanctioning the plan of the building to be constructed by the respondents. The appeal preferred by the appellants was accepted by the learned Additional District Judge who, vide his order dated the 18th April, 1975, remanded the suit for retrial to the learned Civil Judge. Revision petition against the appellate order was accepted by this Court on the 1st July, 1976 on the technical ground that the decree‑sheet had not been prepared by the learned Civil Judge. The appellants were asked to apply to the learned Civil Judge for preparing the decree‑sheet. Thereafter, the appeal was heard again by the same learned Additional District Judge who dismissed it on the 14th July, 1977. Hence this appeal.

2. The learned counsel for the appellants contended that the appellants could not take benefit of the provisions of section 119 of the Municipal Administration Ordinance because they had filed suit earlier on the 11th April, 1974, than the sanctioning of plan of the proposed building of the respondents by Lahore Municipal Corporation on the 23rd May, 1974. According to him when the cause of action accrued to the appellants there was no sanctioned plan in existence and in such circumstances no question of invoking aid of section 119 of the Ordinance could arise. He maintained that even if the plan had been sanctioned the appellants could have brought the suit for getting public nuisance created by the respondents undone. No caveat can be entered to the contention of the learned counsel for the appellants.

3. The objections of the learned counsel for the respondents that the appellants had put in certified copy of the decree in this Court after expiry of the period of limitation for filing appeal and that one of the defendants, namely, Sain Muhammad Ali, who had died on the 21st October, 1975 was impleaded as respondent in appeal, are not fatal to the appeal in hand.

4. In view of the above this appeal is accepted, the impugned judgment and decree of the learned Additional District Judge and of the learned Civil Judge are set aside and the case is remanded for trial according to law. The parties are directed to appear on the 20th December, 1981 before the learned District Judge, Lahore, who will entrust the suit for trial to a Civil Judge who will be directed to give it priority over other cases and decide it within three months. The appellants will get costs of the appeal from the respondents.

M. Y. H. Appeal allowed.

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