SRINAGAR DEVELOPMENT AUTHORITY Vs. MOHD AMIN JOGOO

JUDGEMENT

(1.) THIS revision petition is filed against the impunged order dated 9th August, 1994 passed by Srinagar Civil Munsiff Srinagar in civil Suit captioned Mohd. Amin Tangoo and other V/s Srinagar Development Authority. The petitioner is the defendant in the original suit before the lower court. He has come up with this revision stating therein that the court below in the aforementioned suit has framed issues. Issue No. 7 pertains to the maintainability of the suit for want of issuance of notice u/s 48 of the Development Act. Issue No. 7 reads as under : - "Whether the suit is not maintainable for want of notice u/s 8 of the J&K Development Act? OPD."

(2.) ISSUE No. 8 is regarding the cause of action. These two issues were taken as preliminary issues and were argued before the court below which passed the impugned order by virtue of which the court has held that the provision of section 48 of the J&K Development Act have no application in the suit and, therefore, held the suit maintainable on this court This order has been assailed on the ground that the trial court has erred in holding that section 48 of the Development Act is not applicable when it is not clear from the Act itself that no suit can be instituted against the Development Authority unless the defendants are given two months notice.

(3.) HEARD learned counsel for the parties at length and perused the record. Before entering into the discussion of the learned counsel for parties, it will be in the fitness of the things to quote section 48 of J&K Development Act, 1870 which reads as under: - "48, Notice to be given of suits: - (1) No suit shall be instituted against the Authority, or any member, thereof, or any of its officers or other employees, or any other person acting under the directions of the authority or any member or any officer or other employees of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made there under until the expiration of this Act or any rule or regulation made there under until the expiration of two months after notice, and in other cases, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered. (2) No suit as such is described in subsection (1) shall, unless it is a suit for recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises."