( 1 ) THIS appeal has been preferred TO by the plaintiff/appellant (hereinafter REFERRED TO to as the appellant in order to facilitate the reference) against the judgment and decree dated March 11, 1977 passed by an Additional District Judge, Tis Hazari Courts, Delhi, whereby he affirmed the judgment and decree passed by the learned Sub Judge on May 16, 1974 dismissing the suit of the appellant.

( 2 ) BRIEF facts which led to the presentation of the present appeal are as under: that the appellant herein filed a suit before the learned lower Court which was registered as Suit No. 684/69 wherein he prayed that the defendant/respondent (hereinafter REFERRED TO to as the respondent for the sake of convenience), their servants and agents be restrained from demolishing the tin shed existing at the rear portion of premises bearing No. B-29b, Kailash Colony, New Delhi, fully shown in the plan annexed with the plaint. The case of the appellant is that he is the owner of premises bearing No. B-29b situated at Kailash Colony, New Delhi, which consists of a tin shed situated at the back side of the abovesaid premises shown by red colour in the plan annexed with the plaint. The aforesaid accommodation including the tin shed (hereinafter REFERRED TO to as the disputed property for the sake of brevity) has been in existence from before the enforcement of the Delhi Municipal Corporation Act, 1957 (for short `act ). The abovesaid property is assessed to house tax. The officers of the respondent came to the abovesaid place on September 19, 1969 in the evening and threatened to demolish the disputed property on the ground that the same was an unauthorised construction. The appellant who is the owner of the disputed property has never been served with show cause notice as required under Sections 343 (1) and 344 (1) of the Act. He has in view of the above, neither been heard nor has been given any opportunity to lead evidence in support of his case. No demolition order under Section 343 of the Act has so far been served on the appellant who is the owner of the said tin shed. Consequently the threatened action of demolition is illegal, invalid, ultra vires and without jurisdiction. It has thus been prayed that the respondent, their servants and agents be restrained from demolishing the abovesaid tin shed.

( 3 ) THE respondent put in contest, inter alia, on the following grounds: that the suit of the appellant in fact was suit for declaration and as such, the same was not maintainable without the service of the notice under Section 478 (1) of the Act. The notices under Sections 343 and 344 of the Act were issued and served on M/s Fritz and Singh who were the tenants of the appellant in the disputed property and an opportunity of being heard was also granted to them. The aforesaid M/s Fritz and singh filed an appeal before the District Judge against the demolition notice. However, the same was got dismissed as withdrawn vide order dated May 13, 1969. In view of the above the present suit was not maintainable and was liable to be dismissed. Even otherwise, the suit of the appellant was not maintainable as an equally efficacious remedy was available to the appellant. The impugned tin shed was an unauthorised construction. Hence, the respondent had got every right to demolish the same. The suit was false and frivolous and the same was liable to be dismissed. The learned lower Court framed the issues on April 14, 1970 and recorded the evidence of both the parties.

( 4 ) AFTER hearing the learned counsel for both the parties and after the appraisal of the evidence the learned Sub Judge was of the view that the present suit was not maintainable as M/s Fritz and Singh had already availed of an opportunity to challenge the impugned demolition order by preferring an appeal. He was further of the view that no show cause notice was necessary to be served on the appellant inasmuch as he was not the builder of the alleged unauthorised constructi