Mufti Baha-Ud-Din Farooqi, Actg. C.J.
1. The plaintiff instituted a suit for injunction restraining the Cantonment Board, Srinagar, and the Military Estates Officer, Badamibagh Cantt., Srinagar, from demolishing the peripheral wall surrounding his house and ad-joining premises. In reply it was contended in the written statement that the plaintiff had constructed Latrine, poultry farm, and had erected a wooden fencing on the defence land which is adjacent to the private land without any permission from the Military Estates Officer or the Cantonment Board Badamibagh Cantonment. Their further contention was that the encroachment was removed on 2-12-1978 but the plaintiff again encroached upon the defence land implying the land belonging to the cantonment authority', and carried out the construction of the latrine, poultry farm, and wooden fencing without any permission of the cantonment board. It was also contended that the plaintiff had issued no notice under Section 80 CPC either to the Cantonment Board or to the Military Estate Officer before the institution of the suit, and as such the suit was not maintainable. The trial Court raised the following issue :
Whether the suit is liable to be dismissed for want of Issuance of notice under Section 80 OPD
After hearing the learned counsel for the parties, the Court decided the issue against the plaintiff and held that the suit was not maintainable. The Court argued that though the suit against the Cantonment Board was maintainable under Section 273(4) of the Cantonments Act, where, as in the present case, the 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 proceeding. But the same principle was not applicable if the suit was lodged against the Military Estates Officer and that in that case a notice under Section 80 CPC was a must and before the plaintiff can institute a suit he has to serve such notice on the Military Estates Officer. In this, the trial court has assumed facts without trying to acertain the same. One could understand the logic if the finding of the court were that the Military Estates Officer was acting in the capacity of an Estates Officer and that it was in that capacity that he had issued a notice for removing the encroachment on the land owned by the Cantonment Board. But there is no such finding. For aught we know, the Military Estates Officer may not have acted as the Estates Officer and may have simply acted as a representative of the Cantonment Board, in order to demolish the construction which, it was alleged, had been raised without obtaining the previous permission of the Cantonment Board. In fact the written statement itself was very vague and did not spell out the case of the defendant clearly. It was nowhere pleaded in specific terms that the Military Estates Officer was acting as an Estates Officer and had issued notice for removal of the encroachment on the land owned by the Cantonment Authority. The defence put up on the other hand was that the plaintiff had raised the impugned constructions without obtaining the permission of the Cantonment Board and such constructions included the land, which belonged to the Cantonment authority and was described as 'defence land'. In my opinion, the proper course for the trial court to adopt was to ask for better particulars of the written statement before it had framed the issues and embarked upon the enquiry into any of those issues. In its present form, the order of the trial court is not sustainable. It is hereby set aside. The trial court is directed to proceed in the matter, raise and determine the relevant issues, after keeping in view the observations made above.
2. The parties are directed to appear before the trial court on 3rd of June, 1982.