S.B.CIVIL SECOND APPEAL NO. 142/1990 Municipal Board, Iklera Versus. Radha Mohan 21/08/2008 HON'BLE MR.JUSTICE ASHOK PARIHAR. Mr. Parag Rastogi, for the appellant. Mr. VK Tamolia, for the respondent. Suit for injunction and demolition filed on behalf of the plaintiff-respondent was decreed by the trial court vide judgment and decree dated 25/03/1985. The above judgment and decree passed by the trial court has further been affirmed by the lower appellate court vide judgment and decree dated 16/01/1990. This Court, while admitting the present appeal, framed the substantial question as to whether the suit filed by the plaintiffs-respondents against the Gram Panchayat was not maintainable on account of non-service of notice under Section 79(2) of the Rajasthan Panchayat Act, 1953. Though no issue in regard to maintainability of the suit was framed by the trial court, however, the fist appellate court, while remanding the matter back to the trial court framed the issue in regard to non-service of notice and maintainability of suit under the above provision. On a further Misc. Appeal before this Court directions were issued to the lower appellate court to decide the above issue without remanding the same to the trial court. The lower appellate court as per material available on record decided the issue against the defendant-appellant holding that it was a clear case of waiver on behalf of the defendant-appellant. The lower appellate court observed that the question of maintainability was never pressed by the Gram Panchayat and conduct of the parties also prove the intention of waiver so far as the above issue is concerned. On the basis of findings of fact, since after due consideration proper discretion has already been used by both the courts below, in the facts and circumstances, no further interference is called for by this Court, moreso, when the substantial question of law as framed, referred above, does not survive in view of judgment of this Court in the case of Municipal Board, Nimbaheda Vs. Syed Ashkali, RLW 1968 Page 407. Even the Division Bench of this Court in a reference on the above question has observed that the question whether in-fact there is a waiver or not would necessarily depend on facts of each case and is liable to be tried by the same court if raised. Having considered entire facts and circumstances, in view of the judgments referred above, I find no ground for any interference of this Court. The appeal is dismissed accordingly as having no merits. (Ashok Parihar), J.