( 1 ) THIS second appeal under section 100 of the Code of Civil Procedure, as it stood prior to its amendment by Act 104 of 1976, challenges the judgment and decree of the Additional District Judge dated 3. 9. 76 affirming the judgment and decree dated 21. 12,74 of Subordinate Judge 1st Class whereby the suit of the plaintiff-respondent was decreed, restraining the appellant. Municipal Corporation of Dcihi from demolishing the structure of the disputed property raised by the plaintiff after getting the plan sanctioned.

( 2 ) BRIEFLY the facts are that the plaintiff is the owner of plot No. 41-B, Rajpur Road, Delhi. He applied to the appellant for sanction of a building plan for construction on the said plot which was sanctioned vide letter dated 13. 8. 68. and it was communicated to the plaintiff vide letter dated 20. 8. 68. The plaintiff constructed the building. He sent a notice in writing on 6. 9. 69 under section 31-6 of the Delhi Municipal Corporation Act, 1957 (hereinafter called the Act ) apd deposited necessary fees for obtaining a completion certificate to enable him to occupy the building. The plaintiff alleges that the officials of the Corporation visited the premises on 13. 6. 69 for the purpose of verification. But refusal to grant the completion certificate was never communicated to him, that by letter dated 22. 4 70 received on 24. 4. 70 he was informed that the completion certificate could not be granted as the sanction of the plan stood revoked on 2. 9. 69. The plaintiff alleges that he was never served with any order of revocation of the sanctioned plan, that there was no question of revocation after the building had been completed and the completion certificate was deemed to have been granted. The plaintiff filed the suit for permanent injunction restraining the Corporation from demolishing or otherwise interfering in any manner whatsoever with his property on the said plot. The appellant Corporation in its written statement pleaded that a letter dated 13. 6. 69 was issued to the plaintiff for arranging inspection of the building by the Corporation officials but no such opportunity was given by the plaintiff, that the sanction of the plea was revoked by it as the plaintiff had sub-divided the plot and had carried out construction in violation of the sanctioned plan and thus the construction was unauthorised entitling the Corporation to take action under sections 343 and 344 of the Act. It was admitted that the plan was sanctioned on 13. 8. 68 which was communicated on 20. 8. 68. The receipt of the notice and deposit of fees under section 346 of the Act for the issue of completion certi- ficate- are admitted. The trial Court decreed the suit and passed a decree restraining the Corporation as prayed for. On appeal the Additional District Judge confirmed the judgment and decree of the trial Court. Hence this second appeal.

( 3 ) THE learned counsel for the appellant submits that a letter dated 13. 6. 69 was issued to the plaintiff which was served upon him The Corporation officials wanted to inspect the building constructed by him, but the plaintiff did not comply with the said notice and therefore, it must be deemed that the Corporation refused to issue the completion certificate. His next submission is that the plan sanctioned on 13. 8. 68 was revoked by the Corpo- ration on 2 9. 69 and therefore, the building in question must be deemed to have been erected without sanction. Learned counsel for the plaintiff on the other hand submits that the letter dated 13. 6. 69 was never received by the plaintiff, that there is no proof about service of such letter, that the Courts below have held that no such letter was ever served. His-submission is that the finding of fact cannot be agitated in second appeal. He further submits that ingredients of section 338 of Act were never pleaded by the appellant in its written statement. There is no plea that any show-cause notice to revoke the sanction was issue