MOHAMMAD HASHAM Vs. HYDERABAD MUNICIPAL CORPORATION

JUDGEMENT

(1.) The only question to be considered in this appeal on behalf of the plaintiffs is whether the First Additional Judge, City Civil Court was right in dismissing the suit by his Judgment and decree of 28th October, 1953, on the preliminary ground that no previous notice as required by Section 447 of the Hyderabad Municipal Corporation Act had been served upon the respondent before the institution of the suit.

(2.) It is an admitted fact that no such notice has been served. The argument in the Court below and before us was that as the respondent had passed a resolution on 10th April. 1952 empowering itself to levy fees on the slaughter of animals in slaughter-houses, which it was not competent, to do, the only remedy for the appellants was to seek a declaration and injunction, and that Section 447 of the said Act did not apply to such relief.

(3.) In support of this contention, reliance was placed on certain authorities which need not be discussed in view of the Privy Council Judgment in the case of Bhagchand v. Secy, of Slate, A.I.R. 1927 PC 176. In that case, it was held that S 80, Code of Civil Procedure has to be strictly compiled with and it is applicable to all forms of action and all Kinds of reliefs. Their Lordships; overruled the view of the Bombay High Court which it had taken in Naginlal v. Official Assignee, I L R 37 Bom 243 and Secretary of State v. Ghulam Rusul, ILK 40 Bom 392 The Bombay authorities no doubt support the contention of the learned Advocate for the appellants. These suits were to restrain by injunction the commission of some official act prejudicial to the plaintiff. It was held that if the immediate resuh of the art would be to inflict irremediable harm. S 80 does not compel the plaintiff to wait for two months before bringing the suit, though If nothing to be apprehended beyond what payment of damages would compensate, the rule is otherwise and the section applies. Section 447 of he Hyderabad Corporation Act is substantially the same as Section 80 of the Civil Procedure Code. Nothing has been urged to prevent us from interpreting the former section as has been done by the Privy Council in the Bhagchand's case .