MUHAMMAD ILYAS HUSSAIN Versus CANTONMENT BOARD, RAWALPINDI

1. MUHAMMAD AKRAM, J .-The petitioner's suit against the respondent herein was dismissed by the trial Court and the decree was affirmed on appeal rejected by the Additional District Judge, Rawalpindi. His second appeal was likewise dismissed in limine by a learned Judge of the Lahore High Court at Lahore on the 17th February 1976. Hence this petition for special leave to appeal from the Judgment and decree of the High Court.

2. Briefly the relevant facts are that the Additional Executive Officer, Rawalpindi Cantonments Rawalpindi served a notice dated 31st May 1971 on the petitioner herein against an allegedly unauthorised re-construction of a stall by him at the main gate of Mutton 'Market, Kashmir Road, Rawalpindi Cantonment, and directed him to stop the work immediately, failing which the platform constructed by him shall be demolished through the agency of the Cantonment Board at his risk and cost. On this on the 20th of June 1971 the petitioner brought his suit against the respondent in the civil Court at Rawalpindi for a declaration to the effect that the impugned notice dated 31st May 1971, was male fide, illegal and has no effect against him. In the suit he also prayed for a permanent injunction restraining the defendant from demolishing the construction in dispute. The defendant resisted the suit and inter alia raised a preliminary objection in its written statement to the effect that the suit of the plaintiff' as laid was not competent without a two months' prior notice served on the Cantonment Board id accordance with the requirements of section 273 (I) of the Cantonments Act (II of 1924). On the merits the defendant controverted the allegations of the plaintiff and raised the plea that he had no right to encroach upon the land in the market and raise the unauthorised construction.

3. Eventually, on the 17th of March 1975, the Civil Judge, Rawalpindi dismissed the suit of the plaintiff as incompetent in the absence of any notice served by him on the defendant in accordance with the requirements of section 273 (1) of the Cantonments Act. In this connection the Court observed that the plaintiff has sought two distinct and independent reliefs for declaration and permanent injunction in his suit. The principal relief for which he has sued was for a declaration and that as such his suit was hit by the mischief of subsection (1) of section 273 and was not covered by the exception provided in subsection (4) of section 273 of the Act. The judgment was affirmed on appeal of the petitioner which was dismissed by the Additional District Judge, Rawalpindi on the 23rd of December 1975. He too was of the opinion that the suit of the plaintiff as laid was not competent without two months' prior notice to the defendant. In his opinion, in his suit, the plaintiff has prayed for the relief for a declaration and as such without complying with the mandatory requirements of sub section (1) of section 273 of the Act, the suit of the plaintiff was not competent and had been rightly dismissed. The plaintiff then went up in regular second appeal against the decree. But a learned Judge of the Lahore High Court at Lahore agreed with the two Courts below and dismissed his appeal in limine on the 17th of February 1976. In his opinion a question of title to the property inevitably arose in the suit and it was, therefore, necessary for the plaintiff to have sued for declaration as the principal relief claimed by him and that his prayer in the suit for the grant of permanent injunction against the defendant was consequential only and flowed from the declaration which was the main and substantive relief claimed by him, hit by section 273 (1) of the Act. In this connection he observed as under;-----

4. "Written statement filed by the respondent shows that the notice for the demolition of the property was issued because according to the respondent the appellant had made certain encroachments. Obviously the appellant has denied to have made encroachment and claimed to be a tenant over the disputed place. So obviously the question of title is involved that It was, prima facie, necessary for the appellant to serve a notice under section 273 of the Cantonment Act, before bringing a suit. I do not find any force in the argument of the learned counsel that his prayer for permanent injunction was not made as a consequential relief but as an independent relief, besides the declaration sought for. Since the appellant according to the respondent was not a tenant of the place over which he made construction, seeking of declaration of his title to the effect that he was tenant over the disputed portion, was necessary and the prayer for a permanent injunction will only to be a consequential relief. The judgment and decree passed by the Courts below are correct and not finding any force in the appeal, I dismiss it in limine."

5. In this case before us the respondent has entered a caveat and we have heard the learned counsel for the parties. Subsection (1) of section 273 of the Cantonments Act lays down that no suit shall be instituted against any Cantonment Board, in respect of any act done, or purporting to have been done, in pursuance to this Act or rules or bye-laws made thereundse, until the expiration of two months after notice in writing has been left at the office of the Board and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff. The subsection is imperative and comprehensive in its scope. There is, however, an exception ingrained upon this subsection under subsection (4) of this section. It provides that ;

6. "(4) Nothing in subsection (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit or proceeding."

7. So that no such prior notice will be necessary in the case of a suit against the Board in which the only relief claimed is an injunction, of which the object would be defeated by giving of the notice or the postponement of the institution of the suit or proceedings. In the instant case from a copy of the plaint placed on this record we find that the plaintiff has claimed the relief for a declaration to the effect that the impugned notice served on him was mala fide, illegal and had no legal effect and has also prayed for a permanent injunction restraining the defendant from demolishing the structure in dispute. The plaintiff has separately valued and sued for these two reliefs in his suit against the defendant. Therefore strictly speaking the suit of the plaintiff as laid was not covered by the exception contained in subsection (4) of section 273 of the Act and was not competent in the absence of a two months' prior notice required under subsection (l) of the section.

8. But there was nothing to prevent the plaintiff to give up a part of his claim or relief at the trial. Under Order 11, rule 2 (3) of the Code of Civil Procedure a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for any such relief, he shall not afterwards sue for the relief so omitted. Similarly under Order XXIII, rule 1 (1) of the Code, at any time after the institution of a suit, a plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim. In Shantha Nand v. Basudevanand (A I R 1930 A4. 225), a Full Bench of the Allahabad High Court held that the Courts exist for doing justice between the parties and not for enforcing discipline against them. It is the duty of the plaintiff or the applicant to state the facts correctly and not conceal them and it is the duty of the Court to see to what relief the plaintiff or the applicant is entitled under the law. The mere fact that the plaintiff or the applicant has asked for more than he can get does not give to the Court a discretion to refuse to grant even that part of the relief to which he is entitled.

9. It was, therefore, open to the plaintiff in the instant case to have dropped and given up the relief for declaration at any time during the course of the proceedings in the suit and thus confine his suit for the relief for the injunction only. Indeed in this connection in the interest of justice :an amendment could have been allowed to the plaintiff in the plaint at any stage during the pendency of the suit and even in the course of the appeal.

10. Before us the learned counsel for the petitioner has relied upon a reported case of the Lahore High Court under an analogous provision in section 49 of the Punjab Municipal Act, 1911. In Municipal Committee Hansi v. Mehtab Singh (A I R 1931 Lah. 12), it was held that a suit for mandatory injunction to build a khal and a perpetual injunction restraining the Municipal Committee from building drain on plaintiff's property is not entirely illegal. The suit may be dismissed as regards the illegal relief for mandatory injunction claimed and decreed as regards the legal relief.

11. With due deference we are unable to appreciate the observations by the High Court reproduced above to the effect that according to the written statement of the defendant the plaintiff had made certain encroachments, which allegation was denied by him and that therefore the pleadings of the parties gave rise to a question of title between them and as such it was necessary for the plaintiff to have sued for a declaration of his title to the property and the relief for permanent injunction for which the plaintiff has sued was consequential only. But there is nothing in the plaint to warrant the conclusion that the plaintiff has prayed for the relief for permanent injunction merely as a consequential one. Indeed a bare look at the plaint is sufficient to show that the plaintiff has separately valued the two reliefs for declaration and permanent injunction and prayed for them as two independent and substantive reliefs. It is open to a plaintiff to frame his suit and mould his relief in any manner within the law. For instance he could have possibly sued for the relief for declaration or permanent injunction or for both or even for declaration and permanent injunction as a consequential relief to suit his own requirements in accordance with law.

12. In this country declaratory decrees are granted under section 42 of the Specific Relief Act, 1877. It lays down that any person entitled to any legal character, or to any right as to any property, may institute a suit ,against any person denying his title to such character and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not ask for any further relief. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a declaration of title, omits to do so. On the other hand the specific relief by way of perpetual injunction may be granted by the Court in accordance with the provisions contained in sections 54 and 56 under Chapter X of the Specific Relief Act. In this connection section 54 inter alia lays down that a perpetual injunction may be granted to prevent the breach of "obligation" existing in favour of the applicant, whether expressly or by implication. The term "obligation" is defined in section 3 of the Act as "including every duty enforceable by law". So that when a legal duty is imposed on a person in respect of another, that other is invested with the corresponding legal right. In general under the first paragraph of section 54. of the Act, injunction may be granted by the Court to an applicant to prevent the breach of an existing legal right vested in him. In this connection Lord Kingsdown in Imperial Gas Co. v. Broadbent (29 L J Ch. 377) said that after the establish ment of his legal right and of the fact of its violation, a plaintiff is in general entitled as of course to a perpetual injunction to prevent the recurrence of the wrong, unless there be something special in the circumstances of the case such as laches or where interference with the plaintiff's right is trivial. This in itself necessarily entails an adjudication into the right of the plaintiff before granting the injunction to which he may be entitled. It is not always necessary for him to have sued for the declaration of his title as a substantive relief and asked for the injunction as a consequential relief only. Therefore, we are unable to uphold the view formed by the High Court in this case.

13. In the light of the above discussion, we grant leave to appeal to the petitioner, convert this petition into an appeal, and accept the appeal by setting aside the impugned judgment and decree passed by the High Court. Before us the learned counsel for the plaintiff-appellant has given up the relief for declaration as being unnecessary and redundant and has confined his suit for the relief of permanent injunction. The request is allowed subject to all just exceptions at the trial in the suit. The suit of the plaintiff is remitted to the trial Court for its disposal in accordance with law. But there shall be no order as to costs in this Court.

14. S.A .H Appeal allowed.