(1.) A temporary injunction was issued by the Sub judge Baramulla against the Town Area Committee Baramulla restraining the petitioner from demolishing a certain wall belonging to the plaintiff in Khanpura Baramulla. The litigation between the parties started on a notice dated 10th May 1962 issued by the Chairman Town Area Committee to Ghulam Mustafa Shah, one of the plaintiffs, to the effect that he had without permission of the Town Area Committee erected a wall whereby he had blocked a public lane; and despite his having been asked to remove the same a number of times he had failed to do so. The Chairman Town Area Committee informed Ghulam Mustafa Shah that the wall would be demolished on the 17th of May through the employees of the Town Area Committee and the charges so incurred would be payable by him. On 17 -5 -62 three persons Ghulam Mustafa Shah, Ghulam Nabi Shah and Habib Ullah Shah brought the suit in question whereupon they obtained an exparte temporary injunction which was confirmed by the Sub -judge on 23 -7 -62. Against this order an appeal was preferred which was disposed of by the learned Additional District Judge Srinagar by his order dated 26 -12 -62. The learned Additional District Judge rejected the appeal of the Town Area Committee. Against this order of the learned Additional District Judge the Town Area Committee has come up in further revision to this Court.
(2.) THE main point of contention between the parties in this court has been -as in the lower appellate court -whether the suit of the plaintiff was competent without a notice of one month having been given to the Town Area Committee before the institution of the suit. According to Mr. Kaul counsel for the Town Area Committee no suit could be brought against a Town Area Committee until the expiration of one month after notice had been given stating the cause of action and the name and the place of abode of the intending plaintiff .In this case admittedly no notice has been given by the plaintiffs to the Town Area Committee before the institution of the suit. The point for consideration, therefore, is whether the suit is bad or is not maintainable without due notice having been given to the defendant (Town Area Committee) as contemplated by S.41 of the Town Area Act. Learned counsel for the parties have copiously referred to the authorities under S.80 of the Civil P.C., which enacts law which is analogous in principle to the provisions of S.41 of the Town Area Act. Before discussing the authorities it would be profitable to reproduce S.80 of the Civil P.C. and S.41 of the Town Area Act so far as the present dispute is concerned. S.80 of the C.P. Code runs as under: -
(3.) NO suit shall be instituted against the Government in respect of any act purporting to be done until the expiration of four months next after notice in writing has been delivered or left at the office of stating the cause of action, the name, description or place of residence of the plaintiff and the relief which is claimed, and the plaint shall contain a statement that such notice has been delivered or left.