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Regular Second Appeal No. 315 of 1967, heard on 30th November, 1986.

‑‑‑O. I, R. 10(2)‑‑Impleading of parties‑‑Application of a person desiring to be impleaded as a party dismissed by Trial Court and his revision also failed before High Court‑‑Order of High Court not challenged‑ Order, held, attained finality.

‑‑‑S. 100‑‑Municipal Administration ‑ Ordinance (X of 1960)‑‑Second appeal‑‑Point raised in second appeal regarding applicability of Statute qua impugned order neither raised before lower appellate Court nor in grounds of appeal before High Court‑‑Point involved touching factual controversy‑‑No application even made for taking up point as an additional ground‑‑Point, held, could not be allowed to be raised in second appeal.

‑‑‑O. XLI, Rr.23 & 24‑‑Remand of case‑‑Trial Court not giving any finding on issue whether defendant was estopped from refusing sanction of plan but lower appellate Court deciding issue and its decision was based on available evidence and sufficient material was available on record for factual adjudication of controversy embodied in issue‑‑ Contention that lower appellate Court should have remanded case to trial Court for recording finding on issue, held, not acceptable.

‑‑‑S. 100‑‑City of Lahore Corporation Act (XV of 1941), S.266‑‑Sanction of building plan‑‑Respondent applying for approval of plan for reconstruction of 'SABAT' (a roof over passage running by side of house) which had existed since 1917‑18 and which position had not been controverted by Corporation and there existed no impediment in way of sanction of plan‑‑Refusal by Corporation to sanction plan, held, was unjust, illegal and improper in circumstances.

Fayyaz Hussain Kadri for Appellant.

Hakam Qureshi for Respondent.

Dates of hearing: 29th and 30th November, 1986.

This regular second appeal calls in question judgment and decree, dated 10‑11‑1966 passed by the learned Additional District Judge, Lahore.

2. The facts necessary for the purposes of this appeal, briefly stated, are that the respondent Muhammad Tufail instituted a suit for declaration with consequential relief against the appellant in the Court of Civil Judge 1st Class, Lahore. The declaration sought for was to the effect that order, dated the 30th of August, 1960 passed by the appellant may be declared illegal. As a consequential relief the plaintiff‑respondent prayed for the issuing of a permanent injunction restraining the defendant‑appellant from interfering in the construction of 'Sabat' and the construction of a bath‑room and a kitchen over it. The respondent owns House No. 1/1541 Chohata Mufti Bakar Bazar, Lakar Mandi, Lahore having purchased the same in 1956. He has asserted in the plaint that there was a 'Sabat' (which has been explained as a roof over the passage running by the side of the house) existing at the time the house was purchased. He submitted a plan to the appellant for reconstruction after demolition of the old structure. This plan was rejected on 29‑10‑1957; whereupon the respondent refiled the same after removing objections. The plan was approved on 10‑3‑1958. Some of the residents of the Mohallah made a representation against the approval alleging that if the 'Sabat' is allowed to be constructed it would be prejudicial to their rights. On this representation the appellant modified the sanction of plan by order, dated the 13th of March, 1958 and withdrew approval of the construction of 'Sabat'.

3. The respondent filed an appeal against the latter order, dated the 13th of March, 1958 which was rejected by the Commissioner.

4. The respondent thereafter submitted another plan of the similar nature as had been earlier rejected. This plan was also rejected on the basis of earlier rejection by order, dated the 30th of August, 1960. The appellant‑respondent thereupon instituted a suit against the appellant on 4‑2‑1961, out of which the present appeal has arisen. The suit was resisted by the appellant and on the divergent pleadings of the parties three issues were framed by the trial Court. The same are reproduced hereunder for facility of reference:‑‑

(1) Whether the order of the defendant, dated 13th August, 1960 is illegal, arbitrary, oppressive, ultra vires and mala fide"

(1‑A) Whether the defendant is estopped from refusing the sanction in question

(2) Relief.

5. The learned trial Court vide its judgment, dated 7th of March, 1966 dismissed the suit of the respondent mainly on the basis of findings on issue No. 1.

6. The respondent feeling aggrieved filed an appeal before the learned Additional District Judge, Lahore who by his judgment, dated the 10th of November, 1966 accepted the same and setting aside the judgment and decree of the trial Court decreed the suit of the plaintiff‑respondent by granting the following declaration:‑‑

"Order, dated 13th August, 1960 of the defendant‑Corporation refusing to sanction the building plan Application No. 32 of 1960 of the plaintiff‑appellant is illegal, arbitrary and oppressive."

The authorities of the appellant‑Corporation were also permanently restrained from interfering with the plaintiff‑respondent's right to construct a new 'Sabat' and a kitchen and a bath‑room thereon.

7. The appellant‑defendant being dissatisfied has come up in the present appeal.

8. The learned counsel for the appellant raised the following contentions:‑‑

(1) That having observed that Taj Din was a necessary party to the controversy, the lower appellate Court erred in not directing the impleadment of Taj Din and thereafter remanding the case for adjudication afresh;

(2) That the learned Additional District Judge while deciding the appeal did not take into consideration the fact that as on the date of passing of the order by the appellant on 30th of August, 1960 Ordinance No. X had been promulgated and, therefore, the action taken by the appellant was not under section 266 of the Municipal Corporation Act of 1941; and

(3) That the learned trial Court having not given any finding on issue No. 1‑A, the learned lower appellate Court should have remanded the case for finding on this issue if it had come to the conclusion that the finding of the trial Court on issue No. 1 had to be reversed.

9. On the other hand, the learned counsel for the respondent contended:

First, that the controversy as to Taj Din being a necessary party or otherwise was not germane to the decision in appeal before the lower appellate Court, the application of Taj Din for being impleaded as a party having been dismissed by the trial Court and the revision against the said order having failed in the High Court the controversy had been set at rest finally;

Secondly, that neither in the grounds of appeal before this Court nor before the lower appellate Court the plea being now raised as to the applicability of Ordinance X of 1960 qua the impugned order of the appellant, dated 30th of August, 1960 having been raised the appellant cannot raise this contention now as in effect it is a factual controversy and should have been set up in the pleadings before it could be urged.

In the same context the learned counsel submitted that it is not only the order of 30th of August, 1960 which has been challenged but the same being based on an earlier order as is apparent from the order itself the orders of the appellant earlier passed were also in challenge when admittedly the law applicable was the Municipal Corporation Act;

Thirdly, that the 'Sabat' was an existing structure since 1917‑18 and no valid exception to the reconstruction thereto could be raised by any one especially when the 'Sabat' is in the ownership of the respondent and no claim was lodged by any party claiming any right in the passage under the 'Sabat', which passage was allowed to be used without any hinderance even after the intended construction; and

Lastly, that the order of the appellant having been passed without first giving an opportunity to the respondent to plead against the same was illegal and void.

10. Having given consideration to the controversy involved I am of the view that the contentions raised on behalf of the appellant have no force. The first contention of the learned counsel for the appellant obviously has no force in view of the position that the application of Taj Din for being impleaded as a party was rejected and the revision " against that order had also failed. He having not further challenged the order of the High Court the said order had attained finality and this point was, therefore, not germane to the controversy before the lower appellate Court. Otherwise also the appellant has no locus standi to raise this plea as it in no manner has suffered therefrom.

11. Taking now the second contention of the learned counsel for the appellant I suffice by observing that it has been admitted before me that the point now being canvassed was neither raised before the lower appellate Court nor is a ground in the appeal before me. The point involved does touch the factual controversy also as pointed out by the learned counsel for the respondent and, therefore, the same cannot be allowed to be urged at this late stage especially when no application even has been made for taking up this plea as an additional ground.

12. Adverting now to the only other contention of the learned counsel for the appellant, it may be observed that there was no necessity of remanding the case even if it be assumed that issue No. 1‑A had not been decided by the trial Court. The decision on this issue by the lower appellate Court is based admittedly on the available evidence and there was thus no occasion at all for remanding the case as sufficient material was available on record for effectual adjudication of the controversy embodied in the issue.

13. Apart altogether from the above position it may also be observed that the trial Court has also given finding on this issue though it is only based on the discussion made by it on issue No. 1.

14. Before parting with the case I may also observe that on the factual plane as well the order of the appellant‑Corporation appears to be unjust, illegal and improper as the 'Sabat' in question on which the bath‑room and kitchen are intended to be constructed in the first and the second storeys respectively had been existing as such since 1917‑18 which position has not been controverted by the learned counsel for the appellant and, therefore, there could possibly be no impediment in the way of sanctioning of plan so as to reconstruct the said 'Sabat'.

15. In view of the foregoing discussion I find no merit in this appeal, which is accordingly dismissed with costs.

M.Y.H./756/L Appeal dismissed.

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