The Single Bench of Justice Sanjay Dhar of High Court of Jammu & Kashmir and Ladakh, in a Civil Second Appeal filed by the J&K Housing Board, against the order of Ist Appellate Court (Ld. Additional District Judge, Jammu) while dealing with one of the issues as to ‘Whether the notice under Section 57 of the J&K Housing Board Act is mandatory in nature?’ observed that a bare perusal of Section 57 of the Act reveals that before filing a suit against the Board or against any officer of the Board, the person has to serve a two months previous notice in writing of the intended suit and of the cause thereof, upon the Board or the officer concerned. However, the Court held that the only purpose of the notice is to aware the Board of the proposed grievance and to avoid litigation, its purpose is not to non-suit the litigant on technical grounds.
In the case before the Hon’ble Court, the Trial Court had held that the suit is not maintainable, inter-alia, because of non-issuance of notice under Section 57 of the J&K Housing Board Act, whereas the Ld. Ist Appellate Court had set-aside the judgment of the Trial Court, and with respect to issuance of notice observed that the same is a mixed question of law and fact, and hence, can be decided only after a trial.
The Hon’ble High Court noted that the respondents before it-plaintiffs before the Trial Court, had earlier also filed a suit on the same cause of action, which was withdrawn with a liberty to file a fresh suit on the same of cause of action, and the plaintiffs had served a notice upon the defendant-Housing Board in the earlier suit in which details about the cause of action were intimated to the defendant-Board. The Hon’ble High Court while holding that the of Section 57 of the Act is to advance the cause of justice and to give an opportunity to the Housing Board to examine the claim made by the plaintiffs so as to avoid unnecessary litigation, ruled that since the plaintiffs during the pendency of earlier suit, have served a notice upon the defendant-Board intimating it about their grievance and cause of action and after withdrawal of their earlier suit, they filed the instant suit, as such, there was no requirement for the plaintiffs to serve another notice after the withdrawal of earlier suit and prior to filing of subsequent suit. It held that by serving a notice in the earlier suit, the plaintiffs have done a substantial compliance of Section 57, as the Board was well informed about the cause of action.
However, since the Respondents/Plaintiffs had not challenged the finding of Ist Appellate Court on the issue of notice, as such, the said finding was left unaltered by the Hon’ble Court.
