IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE TWELVETH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO. 90 OF 2004 Between: Sunanda Devi (died) Per LRs 2 to 4. … Appellants V/s. Parvathi Bai & Ors. … Respondents Counsel for the Appellants: Sri M. Sudheer Kumar Counsel for the Respondents: Smt.Manjari S.Ganu The Court made the following: (Judgment follows next page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO. 90 OF 2004 JUDGMENT : This second appeal is filed against the decree and judgment passed by the XI Additional Chief Judge, City Civil Court, (FTC), Hyderabad in AS.No. 388 of 1999 whereby and whereunder the learned Additional Chief Judge confirmed the decree and judgment passed by the II-Junior Civil Judge, City Civil Court, Hyderabad, in OS.No. 1071 of 1994 and O.S.No. 1663 of 1994. 2. For the sake of convenience, the parties will be referred by their names. 3. Smt. Parvathi Bai and Smt. Indira Bai filed OS.No. 1071 of 1994 seeking the relief of mandatory injunction for removal of certain constructions which were made. Smt. Sunanda Devi, the first defendant therein while constructing her house deviated from the plan approved by the Municipal Corporation of Hyderabad. Smt. Parvathi Bai and Smt. Sunanda Devi are adjacent landowners. The basis for the suit filed by Smt.Parvathi Bai is that by making constructions in deviation of the approved plan of the Municipal Corporation of Hyderabad. Smt. Sunanda Devi infringed the ownership as well as the enjoyment rights of Smt. Parvathi Bai while constructing her house. The cross suit, OS.No. 1663 of 1994 was filed by Smt. Sunanda Devi against Smt.Parvathi Bai and Hyderabad Municipal Corporation contending that her construction is by and large as per the prescribed plan which was approved by the Municipal Corporation and she did not infringe any right of Smt. Parvathi Bai and some minor deviations from the approved plan were made as per the advice given by the technical and vastu experts. Therefore, Smt. Sunanda Devi admitted in her pleadings that she made certain deviations. 4. The learned trial Court dismissed the suit filed by Smt.Sunanda Devi and decreed the suit filed by Smt. Parvathi Bai granting temporary injunction directing the removal of illegal and unauthorized constructions made by Smt. Sunanda Devi. The first appellate Court by its common judgment in AS.No. 388 of 1999 and AS.No. 389 of 1999 confirmed the decree and judgment passed by the learned trial Court in all respects. 5. Feeling aggrieved the legal representatives of Smt. Sunanda Devi who are the appellants 2 to 4 filed the present second appeal against the decree and judgment passed by the learned first appellate court in AS.No. 388 of 1999. In this context, it requires to be noticed that there is no second appeal in so far as the decree and judgment passed in AS.No. 389 of 1999 by the first appellate Court. 6. Heard Sri M.R.K. Choudary, the learned Senior Counsel representing Sri M. Sudheer Kumar, the learned counsel appearing for the appellants and Smt. Manjari S. Ganu, the learned counsel appearing for the respondents. 7. This Court while exercising its jurisdiction under section 100 of the Code of Civil Procedure while disposing of the second appeal will not interfere with the concurrent findings of fact recorded by both the courts below if they are based on evidence and not being perverse. 8. In the instant case, apart from the oral and documentary evidence let-in by the parties, an Advocate-Commissioner was appointed by the trial Court and he submitted his report. He was also examined as PW-4 during the trial before the learned trial Court. The documents relating to his report are marked as Exs. C-1 to C-42. None of the parties filed any objections to the Commissioner’s report. It appears that during the pendency of the litigation, the Municipal Corporation of Hyderabad regularized the constructions made by Smt. Sunanda Devi. The approved plan after regularization by the Municipal Corporation of Hyderabad, dated 02-6-2000 was marked as Ex.B-7 on behalf of Smt. Sunanda Devi as additional evidence in the appeal filed by her. 9. Both the courts below have categorically held that there were deviations and the said deviations are not minor as contended by Smt. Sunanda Devi but they are major deviations, which affect the ownership and enjoyment rights of Smt. Parvathi Bai and Indra Bai. Thus, the findings being arrived at basing on evidence let-in by both the parties and on consideration of the report of the Commissioner against which no objections have been filed by either of the parties cannot be interfered with in the second appeal. It seems they are the findings in relation to facts. 10. One of the contentions raised by Sri M.R.K. Choudary, the learned Senior Counsel for the appellants is that the statutory notice required under section 685 of the Hyderabad Municipal Corporation Act, 1955 was not issued by Smt. Parvathi Bai to the Municipal Corporation of Hyderabad before instituting the suit and the Municipal Corporation of Hyderabad being the second defendant in the suit in OS.No. 1071 of 1994, the said suit is not maintainable. The learned Senior Counsel would further contend that the first appellate court erroneously recorded the findings that for want of notice under section 685 of the Hyderabad Municipal Corporation Act, the suit filed by Smt. Sunanda Devi i.e., OS.No. 1663 of 1994 is not maintainable whereas the suit filed by Smt.Parvathi Bai in OS.No. 1071 of 1994 is maintainable and the said finding is illegal and liable to be set-aside in the present second appeal. 11. Before adverting to the contentions urged by the learned Senior Counsel for the appellants, it is necessary to extract Section 685 of the Hyderabad Municipal Corporation Act, 1955 which is as follows: Section 685 : Protection of persons acting under this Act against suits :- (1) No suit shall be instituted against the Corporation or against the Commissioner or a Deputy Commissioner or against any Officer or servant, appointed under this Act, in respect of any act done in pursuance of execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act – (a) until the expiration of the one month next after notice in writing has been, in the case of the Corporation, left at the Chief Municipal Officer and in the case of the Commissioner or of a Deputy Commissioner or of a Municipal Officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney or agent, if any, for the purpose of such suit; or (b) unless it is commenced within six months next after the accrual of the cause of action; (2) At the trial of any suit --- (a) the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice delivered or left by him as aforesaid; (b) the claim, if it be for damages, shall be dismissed if tender of sufficient amends shall have been made before the suit was instituted or if, after the institution of the suit, a sufficient sum of money is paid into Court with costs. (2) Where the defendant in any such suit is a Municipal Officer or servant, payment of the sum or of any part of any sum payable by him or in consequence, of the suit whether in respect of costs, charges, expenses, compensation for damages or other wise, may be made, with the previous sanction of the Standing Committee from the Municipal Fund. 12. The learned Senior Counsel relied upon the following decisions on this point: SAWAI SINGHAI NIRMAL CHAND V/s. THE UNION OF INDIA [1]. In this case, the Supreme Court held that the provisions of Section 80 are attracted in a suit filed under Order-21, Rule-63. MUNICIPAL CORPORATION, HYDERABAD, through Commissioner, Hyderabad City, Darooshifa, Hyderabad District V/s. DEVI SING[2], wherein it is held that in-as-much-as Section 447 of the Hyderabad Municipal Corporation Act in pari materia with Section 80 of the Civil Procedure Code, it applies as much as to suits for injunction as to other kinds of suits, and as admittedly in the instant case no previous notice was served on the Corporation, the present suit is therefore not maintainable. 13. On the other hand, Smt.Manjari S.Ganu, the learned counsel appearing for the respondents would contend that only when the relief is claimed against the Hyderabad Municipal Corporation or the action of the Corporation is challenged the requirement of issuing notice under section 685 of the Hyderabad Municipal Corporation Act becomes mandatory. Other wise, it is not necessary to issue the said notice before instituting the suit merely because the Municipal Corporation of Hyderabad is one of the defendants. According to the learned counsel, the suit filed by Smt.Parvathi Bai, the Municipal Corporation of Hyderabad is only a proper party but not a necessary party, as no relief is claimed against the Corporation and no positive action of the Corporation taken against the plaintiff therein is challenged in the suit. In support of her contention, she relied upon the following decision: KOLANATI SATYANARAYANA AND ORS. V/s. NIZAMPATNAM MASTAN AND ORS[3], wherein it is held as follows: The objection as to the non-issuance of notice under section 80 CPC is equally untenable, because of the reason that respondents 1 to 4 did not claim any relief against the Government or its officials. On the other hand, they based their claim on Ex.A-1 issued by the Government. The necessity to issue a notice under Section 80 CPC arises, if only, any action of the Government is challenged. From their angle, it was sufficient if the appellants herein were injuncted from interfering with their right from removing the clay. 14. In the instant case in the suit filed by Smt. Sunanda Devi, no specific relief has been claimed against Municipal Corporation of Hyderabad nor any action taken by the Corporation is challenged specifically in the suit. As rightly contended by the learned counsel for the respondents, the Municipal Corporation is only a proper party and not a necessary party. The suit can be disposed of even in the absence of Municipal Corporation being a party. Therefore, in the suit filed by Smt.Parvathi Bai, issuance of notice under section 685 of the Act against the Corporation is not mandatory. Whereas Smt.Sunanda Devi filed the suit against the Municipal Corporation restraining them from resorting to any activity of demolition basing on their notice issued to her to remove unauthorized or illegal constructions. Therefore, the learned first appellate court, in my view rightly held that in the suit filed by Smt.Parvathi Bai notice under section 685 of the Hyderabad Municipal Corporation Act is not mandatory, whereas in the suit filed by Smt.Sunanda Devi, notice under section 685 of the Act is mandatory and there is no illegality in the order passed by the learned first appellate court. 15. Another contention urged by the learned Senior Counsel for the appellants is that pending disposal of the appeal by the first appellate court, the alleged unauthorized or illegal constructions have been regularized by the Corporation by exercising powers under G.O.Ms.No. 419. The learned first appellate court ought to have taken into consideration Ex.B-7 regularization proceedings issued by the Corporation and ought not to have decreed the suit for mandatory injunction. 16. Smt. Parvathi Bai filed the suit for mandatory injunction contending that there was infringement of her right to ownership and enjoyment of the property by Smt. Sunanda Devi and that the Municipal Corporation of Hyderabad was passive towards Smt. Sunanda Devi without taking appropriate action against her. Therefore, the main question involved in the suit is about the infringement of right vested in Smt. Sunanda Devi. The Municipal Corporation apart from regularizing illegal constructions or deviations is under duty to protect the rights of the neighbours and while doing so it has to exercise the powers of regularization without offending the rights of the neighbouring house owners. Under the guise of regularization of illegal constructions, if the Corporation allows Smt. Sunanda Devi to invade into the rights of Smt. Parvathi Bai it can be certainly said that it is in excess of powers of regularizations conferred on it by the statute. If the constructions made by Smt.Sunanda Devi amounts to infraction of rights of Smt.Parvathi Bai, the Municipal Corporation shall not regularize illegal constructions made by Smt.Sunanda Devi. Both the courts below have concurrently held that deviations resorted to by Smt.Sunanda Devi are not minor deviations but they are major deviations which entitled Smt.Parvathi Bai to obtain the relief of mandatory injunction by way of demolishing the unauthorized/illegal constructions. As a matter of fact, since the suit filed by Smt.Parvathi Bai is pending seeking demolition of the unauthorized/illegal constructions made by Smt.Sunanda Devi and the Municipal Corporation of Hyderabad is under duty to refrain itself from proceeding with the regularization of deviations committed by Smt.Sunanda Devi. The Corporation ought to have under law waited for the verdict of the appellate court and without leave from the court it should not have regularized unauthorized/illegal constructions. Such a course taken by the Municipal Corporation, in my view is not in accordance with law. I am not in acceptance with the arguments advanced by the learned Senior Counsel appearing for the appellants that only regularization can be questioned in public interest litigation by way of invoking writ jurisdiction. In the written statement, the Municipal Corporation of Hyderabad contended that it is not within its purview to regularize the deviations acceding to the request of Smt.Sunanda Devi. On an application made by Smt.Sunanda Devi during the pendency of the appeal, the Municipal Corporation of Hyderabad regularized the deviation by its order under Ex.B-7. When the Municipal Corporation of Hyderabad under the guise of power of regularization acts in excess of its authority and makes an order regularizing the deviations infringing the rights of Smt.Parvathi Bai just like any other individual the corporation is amenable to the jurisdiction of the Civil Court, more particularly because by the time of the alleged regularization order, an appeal in relation to the subject matter is pending before a competent court. Therefore, the learned first appellate Court rightly held that the first appellate court in the instant case has power to examine the validity of the regularization made by the Municipal Corporation of Hyderabad, who is the second defendant in the suit filed by Smt.Parvathi Bai. 17. One of the important contentions urged by the learned counsel appearing for the respondents is as to the maintainability of the second appeal. The learned counsel would submit that there are two cross suits one filed by Smt.Parvathi Bai seeking the relief of mandatory injunction by way of demolishing the unauthorized/illegal constructions made by Smt. Sunanda Devi. The other one is filed by Smt.Sunanda Devi against the Municipal Corporation restraining it from demolishing the constructions made by her in pursuance of the notice issued by it alleging that she made some constructions illegally/unauthorisedly in deviation of the approved plan. Both the suits were disposed of by the trial court by a common judgment. Against which two appeals; AS.No. 388 of 1999 and AS.No. 389 of 1999 were filed by Smt.Sunanda Devi. In both the appeals a common judgment was rendered. But the legal representatives of Smt.Sunanda Devi preferred the second appeal only against AS.No.388 of 1999. According to the learned counsel for not filing second appeal against AS.No. 389 of 1999 in which the decree and judgment passed by the trial court is confirmed by the first appellate court and became final. The present second appeal according to the learned counsel is therefore, is barred by resjudicata. 18. In support of her contention, she relied upon the following decisions: DARAYAS BAMANSHAH MEDHORA V/s. N;ARIMAN BAMANSHA MEDHORA[4] wherein it is held as follows: Two cross-suits were filed between the very same parties, the subject matter of dispute was the very same property, and the reliefs sought by each plaintiff in their respective suits were similar; the trial Court by consent of parties consolidated the two suits and directed that they be tried together. The two suits were decided by a common judgment. As a result of the said common judgment, the suits filed by one party was dismissed, whereas the suit filed by another party was allowed. Thus, although the judgment was common, it dealt with two separate suits and consequently the common judgment resulted in two separate and distinct decrees. The party whose suit was dismissed filed only one appeal against the decree whereunder lthe suit of another party was allowed but did not file any appeal aginst the decree whereunder his suit was dismissed. Held, in the circumstances that when two decrees were passed, appeal against only one of them was not maintainable. It would be a loose generalization to hold that the bar of resjudicata is created only by the judgment and not by the decr5ee. Thus generalization would hold the field only if the question under consideration was in respect of only, or merely, “issue estoppel” and not in respect of a common judgment resulting in two decrees. An appeal under sect6ion 96 CPC lies only from a decree and not from a judgment. It cannot be overlooked that these are not merely loose concepts, but have a very specific meaning and connotation inasmuch as each of these has been independently defined under the CPC. QAMAR JEHAN KAUSER V/s. MOHD. IBRAHIM MOOSA (died) by LRS[5], wherein the learned single Judge of this Court held that when two appeals arising out of same suit and the judgments in both the appeals rendered against defendant, defendant ought to prefer two separate second appeals, failure to do so would attract principle of resjudicata. BADRI NARAYAN SINGH V/s. KANDEO PRASAD SINGH AND ANR [6], wherein it is held as follows: Civil Procedure Code 1908 – S.11 – Election proceedings – Applicability of principle of resjudicata – Election Petition – Election of A declared void and set aside – Appeal by both C and A – Appeals of profit, and C declared duly elected – dealt appeal by A dismissed – Appeal by C – Supreme Court against order in appeal – C only, on ground that finding that office of profit was wrong – held that not having appealed against order in appeal by A setting aside his election, the fact on question whether A held office of profit had become final and operated as resjudicata and could not be challenged before Supreme Court. 19. In view of the above judgments relied upon by the learned counsel appearing for the respondents, the second appeal filed by Smt. Sunanda Devi is barred by res judicata under section 11 of the Code of Civil Procedure, since no appeal has been preferred against the decree and judgment passed by the first appellate court in AS.No. 389 of 1999 confirming the judgment and decree passed by the trial Court which became final. Therefore, the present second appeal itself is not maintainable. 20. For the foregoing reasons, the second appeal is dismissed. There shall be no order as to costs. __________________________ JUSTICE R. KANTHA RAO. 12-10-2011 I s L NB: LR copy to be marked. THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO. 90 OF 2004 PRE-DELIVERED JUDGMENT Circulation No.227 Date: 12-10-2011 Court Master: I s L Computer : Bungalow of RKR, J. [1] ) AIR 1966 SC-1068 [2] ) 1968 (2) An.W.R. 174 [3] ) 2007 (1) ALD-497 [4] ) AIR 2002 GUJARAT 166 [5] ) 2006 (4) ALD-841 [6] ) AIR 1962 SC-338 (V 49 C-52) (From Patna: AIR-1961 Pat-41)