THE HON’BLE SMT. JUSTICE TIRUMALA DEVI EADA CITY CIVIL COURT APPEAL No.221 OF 2019

JUDGMENT:

This is an appeal filed by the appellants, being aggrieved by the judgment and decree, dated 26.10.2018 passed in O.S.No.117 of 2012 by the learned I Additional Chief Judge, City Civil Court, Secunderabad (for short “the trial Court”).

2. The appellants herein are the plaintiffs and the respondent is the defendant before the trial Court. The parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity.

3. The case of the plaintiffs before the trial Court is that plaintiffs have entered into a Development Agreement – cum – Irrevocable General Power of Attorney in favour of M/s.Maha Laxmi Homes, represented by its proprietor Sri P.Srinivas in respect of plot No.26, survey Nos.67 and 69 admeasuring 550 Sq.yards situated at LIC Colony, Boosareddyguda of Bholakpur village, Secunderabad Cantonment vide document No.701 of 2011 dated 27.05.2011. It is further averred that there was an error in the said development agreement and thus they got a rectification deed registered vide document No.768 of 2011 dated

09.06.2011 and that they intended to construct a residential complex and obtained sanction from the defendant vide board resolution No.16(38) dated 08.12.2009 for construction of Stilt, Ground and two floors and after intimating the defendant they commenced construction without any deviation or violation of rules but that the defendant has issued a notice under section 248(1) of Cantonment Act (for short “the Act”), dated 28.08.2010 asking the plaintiffs to remove unauthorized construction within a period of 30 days, saying that the constructions undertaken by the plaintiffs are in contravention of Section 247 of the Act. It is their case that the plaintiffs have preferred an appeal against the said notice before the appellate authority, Pune and that the same is pending. During the pendency of the said appeal, the defendant had issued a final notice under Section 320 of the Act on 10.05.2012 asking to demolish and remove the unauthorized construction within eight days of the receipt of notice. Thus, the plaintiffs have filed a suit stating that without giving any opportunity to the plaintiffs for availing any remedy from the appellate authority, the defendant has issued final notice and that they have not committed any violation of the Act. It is further contended by the plaintiff that if at all there are any deviations, they can be condoned by collecting compounding fee by the cantonment authority. Hence, they filed a suit seeking declaration of the notice issued under Section 320 of the Act to be null and void and also for granting perpetual injunction against the defendant.

4. The defendant has filed a written statement denying the plaint averments. They contended that the suit is liable to be rejected under Order VII rule 11 of CPC as it is filed during the pendency of the appeal and that before instituting the suit the plaintiffs have not issued notice under 339 of the Act to the defendant and they did not adhere to any guidelines and that the plaintiffs failed to maintain requisite setbacks and that they have exceeded the permissible floor area and extended the construction on all the sides and that the plaintiffs are constructing apartments by obtaining permission for residential flats and that after inspecting the premises, the defendant got issued the show cause notice on 22.05.2010 to stop the construction and that as the plaintiffs did not respond to the same, they have issued another notice on 28.08.2010 and that taking advantage of the appeal filed by them, the plaintiffs are proceeding with the construction and the notice under challenge in the appeal was not suspended by the appellate authority. They further contended that the plaintiffs have filed the present suit with all false allegations suppressing the material facts. The defendant has further alleged that