JUDGMENT
Dhavle, J.
1. This is an application under Section 115, Civil Procedure Code, and Section 107, Government of India Act, against an appellate order of the District Judge of Shahabad setting aside an ad interim in-j unction granted by the Second Munsif of Arrah.
2. The suit was brought by the petitioners for a declaration that the Municipal Commissioners of Arrah had no right to demolish a certain platform and for a permanent injunction against its demolition. A notice had been served on the petitioners by the Municipal Commissioners requiring them to demolish a platform in front of their house and projecting over a Municipal drain and their case was that as the platform was there from before the constitution of the Municipality, the Municipal Commissioners had no right to have it demolished, and that the notice was defective.
3. It was admitted before the Munsif that the platform was over a portion of the Municipal drain. The learned Munsif observed that under the Bihar and Orissa Municipal Act the Municipality was authorized to remove the obstruction, however old but he thought that it was doubtful if the notice served on the plaintiffs-petitioners was a proper notice since it mentioned no time within which they were to remove the obstruction. He accordingly granted an ad interim injunction in order to maintain the status quo till the decision of the suit.
4. When the matter went up to the District Judge in appeal it was conceded on behalf of the present petitioners that there is nothing in the Act which requires the period to be mentioned in the notice but it was argued that the notice was defective because it did not show on the face of it that it was a notice under Section 197 of the Act. The learned District Judge held that this defect did not render the notice invalid. In his opinion the suit was, therefore, prima facie not maintainable and he accordingly set the injunction aside.
5. It has been urged by the learned Advocate for the petitioners that they have a prima facie case, that the balance of convenience is in their favour, and that the suit will become infructuous if the platform is demolished before the decision of the suit.
6. On behalf of the opposite party an affidavit has been filed that the platform was actually demolished to the knowledge of the petitioners on 23rd April last, three days before this Court admitted the petition in revision and issued an interim injunction. It is, therefore, contended that the petition in revision has become infructuous.
7. The actual demolition on 23rd April is not disputed but the learned Advocate for the petitioners has called attention to the Munsif’s order of 23rd April directing the opposite party not to demolish the platform till the following Monday, i, e., 29 th April by which time the petitioners hoped to get an interim order from the High Court and to his order of 24th April giving the petitioners a rule against the opposite party to show cause why their subordinates concerned in the demolition should not be prosecuted for contempt of Court.
8. Now, Section 197 of the Act authorizes Municipal Commissioners to issue notices requiring owners of houses to remove projections on public drains. Section 198 provides that if such requisition is not complied within eight days, the Magistrate may, on the application of the Commissioners, order that the projection be removed, and that thereupon the Commissioners may remove such projections. Section 201 lays down that every order made by the Magistrate under Section 198 shall be deemed to be an order made by him in the discharge of the judicial duty, and the Commissioners shall be deemed to be persons bound to execute such orders of a Magistrate. Under Section 373 any person aggrieved by a requisition under Section 197 may appeal to the Commissioners, and the order passed on appeal is final. Section 200 provides that no person shall be entitled to compensation in respect of the removal of such a projection unless it be proved that the projection has existed for more than three years or from before the Municipality was constituted, whichever period may be less, in which case the Commissioners may, on an application, order reasonable compensation to be paid to any person who suffers damage by reason of such removal. Such is the scheme of the Act relating to the removal of projections, over-drains and it shows how little a householder can, by recourse to the Civil Courts, resist the removal of even an old platform projecting over a public drain if Municipal Commissioners decide upon such removal and proceed in accordance with Sections 197 and 198.
9. The petitioners’ case is that the notice served on them was defective. The plaint does not, however, say in what respect it was defective, and the ground taken before the Munsif was given up in appeal Assuming, for present purposes, in favour of the petitioners, that the notice was invalid on the ground advanced before the District Judge but not accepted by him, viz,, the failure to mention the section, and assuming also that the petitioners may be entitled to some relief on that ground, the permanent injunction against the removal of the platform, which is the substantial relief prayed for in the plaint, seems so much opposed to the scheme of the Act that the present is plainly not a case of the kind in which a temporary injunction is granted because the plaintiff would otherwise be deprived for ever of a right to a permanent injunction which he claims and might succeed in establishing.
10. The platform, as I have already said, has in fact been removed, and removed, as the affidavit of the opposite party shows, on the strength of a judicial order obtained from the Magistrate, The learned Advocate for the petitioners has contended that even so the application has not become infruotuous as petitioners could and ought to be allowed to re-build the platform. He has cited Karshan Bhadan Chatalia v. Indra Narayan Chandra 76 Ind. Cas. 49 : A.I.R. 1923 Pat. 597 : 4 P.L.T. 508 : 1 Pat.L.R. 393, a case in which an ex parte order for a delivery of possession was declared null and void and it was ordered that the delivery so effected be got rid of by a re-delivery to the other side. That case is easily distinguishable on fact a It is impossible on present materials in this case to say that the Municipal Commissioners have acted mala fide in carrying out the Magistrate’s order for the removal of the platform, The affidavit of the opposite party shows clearly enough how the platform caused great inconvenience to the public on account of its situation and how action was taken on the report of a special sub-committee in pursuance of an inspection note of the District Magistrate. The learned Advocate for the petitioners has referred to para. 9 of the plaint in which it is stated that irreparable loss would be caused to them if they had to wait; but it is clear that where the Municipal Commissioners have a clear right to get a platform, however old, demolished on payment, it may be, of compensation provided they proceed in accordance with the Act, there can be no loss which could not be adequately compensated for in money.
11. I must, therefore, dismiss the application as infructuous. Even if the platform had not in fact been demolished, I would not have felt disposed to interfere with the order of the District Judge which is not without jurisdiction nor illegal nor materially irregular, The opposite party will have their costs including a hearing-fee of one gold mohur.