GARIB CHAND Vs. MUNICIPAL COMMITTEE

JUDGEMENT

(1.) IN this Second Appeal, the counsel for the Plaintiff -Appellant has raised a point that the first appeal filed by Respondent -Municipal Committee, before the lower appellate court, against the decree of the trial court, decreeing Plaintiff's suit was not competent inasmuch as no resolution was filed with the first appeal, either taking a decision for filing an appeal against the judgment and decree of the trial court or authorising a person to sign and file appeal on behalf of the Municipal Committee and therefore, he submits that on this short ground alone, this second appeal should be allowed and the appeal before the lower appellate court should be held incompetent thus setting aside judgment and decree of the lower appellate court and restoring those of the trial court.

(2.) THE Plaintiff -Appellant filed a suit challenging the validity of Notice Exhibit P/1 dated May 31, 1974 issued by Respondent -Municipal Committee under Section 172 of the Punjab Municipal Act, under which the Plaintiff was directed to remove the encroachment within a period of three days failing which the same was to be removed at his expense, by the Municipal Committee. Prayer in the suit is for declaring the impugned Notice Exhibit P/1 as illegal and void and for permanent injunction restraining the Municipal Committee from demolishing the chappar raised by the Plaintiff, on the site in dispute. The Municipal Committee contested the suit on the ground that notice was valid in -as -much as the structure was raised on a public street and could be ordered to be removed under Section 172 of the Punjab Municipal Act. The following issues were framed in the case:

(3.) THE trial court, by its judgment and decree dated June 1, 1976 decreed the suit holding the impugned Notice to be illegal and not binding on the Plaintiff and ordered the issue of injunction as prayed for. With regard to issue No. 1, the Plaintiff was directed to make up the court -fee which was done. Against the judgment and decree of the trial court, the Municipal Committee took an appeal before the District Court, which was heard by the Additional District Judge. The learned Additional District Judge, by his judgment and decree dated November 24, 1977 allowed the appeal, set aside the decree of the trial court and dismissed the suit with costs throughout, holding that the Plaintiff had encroached upon part of a public street and as such the Notice is legal and valid.