SRINIVASA REDDY, J. ( 1 ) IN this appeal under Section 100 C. P. C. the appellant-plaintiff calls in question the judgment and decree of the 1st Addl. Civil Judge (Sr. Dn.) at Belgaum in RA. No. 203/1996 affirming the judgment and decree dated 4. 11. 1996 passed by the Prl. Munsiff at Belgaum in o. S. No. 56/1994 dismissing the suit filed by the plaintiff. ( 2 ) THE plaintiff filed the suit praying for permanent injunction against the defendant Board restraining the Board from acting upon the notice issued by it under Section 256 of Cantonments Act, 1924 (the Act for short) on the ground that the Board was not entitled to initiate action under Section 256 of the Act as the appellant-plaintiff had not violated any of the provisions of the Act. The defendant- board opposed the claim of the plaintiff on the ground that the action taken by the Board was quite in accordance with law. The learned munsiff framed the following issues as arising for its consideration:1. Whether plaintiff proves that she has effected the repairs without making any encroachment over the property of defendant? 2. Whether plaintiff proves that defendant interfered in her lawful possession and enjoyment of the suit property? 3. Whether defendant proves that the suit of the plaintiff is hit by the principles of res judicata, as alleged in para-3 of the written statement? 4. Whether defendant proves that the suit of plaintiff is not maintainable in the present form, as alleged in para-6 of the written statement? 5. What Order or decree?the Trial Court answered points 1 to 4 in the negative and dismissed the suit. ( 3 ) BEING aggrieved by the dismissal of the suit, the plaintiff went in appeal before the Court-below on the ground that the judgment and decree of the Trial Court was contrary to law and facts on record and, therefore, unsustainable in law. The court-below framed the following issues as arising for its determination. 1. Whether the plaintiff proves that she has effected repairs without making any encroachment over the property of the defendant? 2. Whether the plaintiff is entitled to the relief of injunction as sought against the defendant in view of the notice under Section 256 of the Cantonment Act? 3. What Order?the Court-below on answering points 1 and 2 in the negative and against the plaintiff-appellant dismissed the appeal. 2. Whether the plaintiff is entitled to the relief of injunction as sought against the defendant in view of the notice under Section 256 of the Cantonment Act? 3. What Order?the Court-below on answering points 1 and 2 in the negative and against the plaintiff-appellant dismissed the appeal. Being aggrieved by the dismissal of the suit and the appeal by the Courts below, the appellant-plaintiff has come up in this regular second appeal. ( 4 ) I have heard the learned Counsel Mr. R. B. Deshpande for the appellant and Mr. K. Anantharaman for the respondent-Board. ( 5 ) FOR the sake of convenience the parties herein will be referred in the course of this judgment with reference to their rank in the trial Court. ( 6 ) THE following substantial questions of law arise for my consideration in this appeal:1) Whether the conclusion of the Court-below that the construction carried out by the plaintiff would amount to erection or re-erection of building is perverse in law as the said conclusion was arrived at by them without reference to the tests prescribed in Section 179 (2) of the Act as to what constitutes erection or re-erection of a building?2) Whether the suit as brought by the plaintiff is not maintainable for want of omission on his part to avail of the remedy available to him under Section 274 of the Act?3) Whether the appellant is entitled to the relief of injunction as sought for by him on the ground that the action proposed to be taken under Section 256 of the Act on the basis of Ex. D1 is illegal and improper? ( 7 ) THE plaintiff is seeking the relief of permanent injunction against the Board from acting upon the notice issued to him under Section 256 of the Act. The Board has issued the notice under Section 256 after forming an opinion that the plaintiff had resorted to erection or re-erection of a building without notice as stipulated under Section 185 of the Act. Both the Courts-below have proceeded on the premise that the repairs done by the plaintiff on his site amount to erection or re-erection, disbelieving the case of the plaintiff that he merely carried out some repairs which do not amount to erection or re-erection of a building. Both the Courts-below have proceeded on the premise that the repairs done by the plaintiff on his site amount to erection or re-erection, disbelieving the case of the plaintiff that he merely carried out some repairs which do not amount to erection or re-erection of a building. The Court-below has also come to the conclusion that the suit as filed by the plaintiff without exhausting the remedy under Section 274 of the Act is not maintainable. Any person intending to erect or re-erect a building in a cantonment is bound to apply for sanction by giving a notice of his intention in writing under Section 179 of the Act to the Board. Section 179 (2) also describes the various alterations or conversions to a building which would amount to erection or re-erection of a building. Subsection (2) which lists out the various alterations and conversions is very relevant for the purpose of deciding this appeal and, therefore, i quote it:179. Notice of New Buildings: (1) Whoever intends to erect or re-erect any building in a cantonment shall apply for sanction by giving notice in writing of his intention,- (a ). (b ). . (2) For the purpose of this Act, a person shall be deemed to erect or re-erect a building who (a) makes any material alteration or enlargement of any building, or (b) converts into a place for human habitation any building not originally constructed for that purposes, or (c) converts into more than one place for human habitation a building originally constructed as one such place, or (d) converts two or more places of human habitation into a greater number of such places, or (e) converts into a stable, cattle-shed or cowhouse any building originally constructed for human habitation, or (ee) converts into a dispensary, stall, stop, warehouse, godown, factory or garage any building originally constructed for human habitation. (f) makes any alternation which there is reason to believe is likely to affect prejudicially the stability or safety of any building or the condition of any building in respect of drainage, sanitation or hygiene, or (g) makes any alteration to any building which increases or diminishes the height of, or area covered by, or the cubic capacity of, the building, or which reduces the cubic capacity of any room in the building below the minimum prescribed by any bye-law made under this Act. It is not even the case of the Board that the construction done by the plaintiff amounts to a conversion or alteration as described in sub-clauses (b) to (g) of sub-section 2 of Section 179 of the Act. The construction made would, therefore, have to fall under sub-clause (a) of sub-section (2) in order to insist on the plaintiff that he ought to have issued a notice which he did not and therefore he is liable to be proceeded against under Section 256 of the Act. The basis on which the Board proceeded against the plaintiff is the report of the inspecting Officer who visited the premises on 30. 4. 1992 and noticed that the plaintiff was re-erecting the front portion without obtaining valid permission. ( 8 ) THE question therefore boils down to determining whether the re-erection of the frontportion of the building as noticed by the inspecting officer in Ex. D1 would constitute a material alteration or enlargement of any building. It is argued by learned Counsel for the board that as this is purely a question of fact, the courts-below having answered it against the plaintiff, this Court cannot go into that question again in the second appeal. I would deal with this aspect of the matter later on in the course of this judgment. Suffice to point out here that that embargo does not operate in the present case. Back to the issue, one can safely rule out that the construction carried out by the plaintiff was an enlargement of the building because alteration and enlargement connote entirely two different meanings and certainly one cannot expect an inspecting officer who is a professional in his field to have failed to make a note of it in his report had he noticed any enlargement when he visited the site of construction. It was clearly noticed by him in Ex. D1 that the front portion was being re-erected by the plaintiff. The case of the plaintiff as made out in the plaint reads:plaintiff is the owner of the suit property. The defendant had issued the notice under Form No. 36 under sub-section (2) of section 185 of the Cantonments Act, 1924 under No. H. No. 43/ madras A: st/227 dated 6. 6. 1992 for which the plaintiff has given a reply dated 22. 6. The defendant had issued the notice under Form No. 36 under sub-section (2) of section 185 of the Cantonments Act, 1924 under No. H. No. 43/ madras A: st/227 dated 6. 6. 1992 for which the plaintiff has given a reply dated 22. 6. 1992 that the said period being rainy reason the suit property was in dilapilated condition and there was every apprehension of the existing roof coming down and there was no other go than to effect necessary repairs to the roof and the side walls and the repairs were essential as the dilapilated condition of the suit property was endangering the inmates of the house. Even discounting the case as putforth by the plaintiff and going entirely by the inspection report of the inspection officer what Ex. D1 bears out is that the front portion of the building was being re-erected. It means in common parlance that the front wall of the building was pulled down and a new wall was put up in its place without in any way altering the shape and size of the building. In order to construe whether such construction amounts to a material alteration the Court has to examine as to how the person who undertook such repair would have himself understood the repairs being carried out by him because the notice under Section 179 has to emanate from the person who intends to erect or re-erect a building in a cantonment. Where a lay man bereft of the technical knowledge essential to differentiate between alteration simpliciter and a material alteration proceeded on the assumption that the repairs carried out by him were mere alteration simpliciter and not a material alteration and has approached the Court for an order of injunction against the Board which proposed to proceed against him treating the construction as material alteration, it was the duty of the courts below to have examined the issue with reference to the description of the various conversions and alterations as set out in Section 179 to determine whether the said construction amounts to erection or re-erection of the building. The Courts-below have failed to examine the issue with reference to Section 179 but merely proceeded in the matter by exclusively placing reliance on Ex. D1. The Courts-below have failed to examine the issue with reference to Section 179 but merely proceeded in the matter by exclusively placing reliance on Ex. D1. Even when the learned counsel appearing for the plaintiff cited the decision reported in ramachandra vs COMMISSIONER M. C. C. 1 in support of his contention that replacing of a roof is a simple case of repairs and does not amount to unauthorized construction or material alteration, the Court-below dismissed the plea without reference to Section 179. The relevant portion in the judgment of the Court below reads: In the light of this submission I carefully gone through the entire case law. In the above cited decision the provisions of karnataka Municipal Corporation Act were for consideration before their Lordships. Having considered the definition incorporated in the provisions of K. M. C. Act about alteration, construction or reconstruction, his Lordship has held that replacing of roof alone is a simple case of repairs and notice under Section 321 of the Act was illegal and not binding on the occupant. But in the instant case what amounts to unauthorized construction in the cantonment area is very well stated under Section 179 (1) of the act. (Underlining is mine) the Court-below just stopped at that and did not refer to the tests prescribed under Section 179 (2) of the Act to determine the question whether the construction by the plaintiff amounts to erection or reerection of a building as defined or described in Section 179. The court-below has failed to take a leaf out of the decision in ramachandra, supra, to which its attention was drawn, wherein before arriving at a conclusion the learned Single Judge had referred to the tests contained in the Karnataka Municipal Corporation Act as to what constitutes a simple alteration or a material alteration. Where the law has laid down in clear terms the types of alterations or conversions which would constitute a material alteration and which alone could serve as the basis for an action under Section 256 of the Act, it is incumbent on the Courts in the process of justifying the action proposed against the builder under the relevant provision of the Act to refer to those tests. I am not for a moment reapprising the evidence to reach a different finding on fact but I am only referring to the fact that the findings of the Courts-below stand vitiated because of non-application of the tests prescribed in law for arriving at a conclusion as to whether the basis for taking action under Section 256 of the Act was available to the authorities under the statute. Where on account of failure on the part of the Courts-below in applying the tests laid down in law while arriving at a finding of fact, the findings so recorded by them are rendered perverse, the question whether such finding of fact recorded by them without reference to the statutory tests is sustainable in law would itself be a question of law and a substantial one at that. The Courts-below having not determined the issue of the nature of construction with reference to the tests laid down in Section 179 (2) (b) of the Act and having regard to the fact that in my considered opinion the construction done by the plaintiff would not amount to a material alteration within the meaning of Section 179 (2) (b) of the Act, there was no necessity for the plaintiff to have issued a notice of his intention to the Board before proceeding with the construction. I am not alone in arriving at this conclusion for it has been laid down by a learned Single judge of Allahabad High Court (Lucknow Bench) in a case reported in RAM SWAROOP vs CANTONMENT BOARD2 to the following effect:section 179 (2) clearly states that a person shall be deemed to erect or re-erect a building if he makes any material alteration or enlargement of any building. Though it is true that in replacing a roof with R. C. C. roof slab and replacing the tin sheets constituting a wall of the kitchen with a brick wall, alterations are effected which would normally add to the comforts and safety of the residents and that the new construction is more lasting and substantial, they do not amount to any material alteration. Therefore, without doubt, the very basis for proceeding against the plaintiff by the Board in regard to the construction carried out by him did not in law exist. Therefore, without doubt, the very basis for proceeding against the plaintiff by the Board in regard to the construction carried out by him did not in law exist. The nature of construction though is a pure question of fact the non-application of the tests prescribed in the statute for reaching that conclusion, which serves as basis for the action by the Board, renders such finding of fact perverse and this court was constrained, therefore, to examine the issue with reference to those very tests and having thus examined I have come to the conclusion that the very basis for action under the statute was not there and therefore the plaintiff is entitled to the relief as sought for by him in the suit. The issue Nos. 1 and 3 are answered accordingly. Issue No. 2: ( 9 ) IT is always open to a owner of a property to bring an action against any other person or authority where he sees a threat to his peaceful possession and enjoyment of the property. Even where the threat emanates from provisions of a statute which also provides the remedy thereunder to the affected person, the choice is always with the person affected to proceed under the common law or seek the remedy under the statute. It is well recognized that where law provides for choice it is the prerogative of the person who sues to pick his own choice. It is no doubt true that where a duty is cast on a person by a statute requiring him to act in a particular way and failure to act in such fashion is actionable under the provisions of the statute which also provides for a remedy to the affected person when he is sought to be visited with some punishment by the authorities for failure to discharge his liability under the statute, the remedy provided under the statute alone must be resorted to by such person. This rule, however, is subject to various exceptions and one such is where the very power of the authority to take such action is challenged by the person affected on the ground of breach of provisions of the statute. But I need not dwelve deep into this aspect as the finding recorded by the Court-below that the suit is not maintainable is totally perverse. But I need not dwelve deep into this aspect as the finding recorded by the Court-below that the suit is not maintainable is totally perverse. It is the solemn duty of a Court deciding a issue to put on alert the party who would be adversely affected by any order to be passed by it and this is done in the natural course by framing an issue for its consideration so that the parties to the lis could address themselves to it and take whatever stand that in law is open to them. The inviolableness of the sacrosant principle of audi altrum partum can never be over-emphasised. In cantonment BOARD, MEERUT vs CHANDRA PRAKASH JAIN3 the question raised directly was whether Sections 274/278 could be invoked as a bar to the civil proceeding where the notice issued under Section 185 was allegedly a nullity. The Court held that the notice being void ab initio, the bar of this provision did not apply and in such a case, it was held, the jurisdiction of the Civil Court is not ousted. The Court, it was observed in the said decision, retains the jurisdiction to adjudicate on the validity of the impugned notice as distinct from its correctness or propriety. The learned Counsel for the Board relied on the decision in SHIV KUMAR vs MUNICIPAL corporation OF DELHI4, the Apex Court had occasion to deal with a case of building violations and observe that the Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition. The observations of the Apex Court in this regard read: (1) The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the commissioner, in terms of Section 343 (1) of the Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the administrator in accordance with the provisions of the said Act. The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the administrator in accordance with the provisions of the said Act. But, the Apex Court did not stop there when it ventured further into the question as to when this rule can be deviated from and observed: (2) The Court should entertain a suit questioning the validity of an order passed under Section 343 of the Act, only if the court is of prima facie opinion that the order is nullity in the eye of the law because of any `jurisdictional error in exercise of the power by the Commissioner or that the order is outside the Act. I have come to the conclusion in this judgment that the notice under Section 256 of the Act could not be sustained because the power has been exercised by the Board on a wrongful assumption of a fact and therefore the exercise of power by the Board under section 256 suffers from a jurisdictional error. In the view that I have taken, the principle enunciated in Shiva Kumar, supra, would not apply to the facts of the present case. The Court-below by recording a finding to the effect that the suit is not maintainable without framing an issue in that regard and without putting the plaintiff on guard has taken the plaintiff by surprise which is impermissible in law and is opposed to the basic tenets of judicial process. The said finding of the Court-below is also liable to be set aside. The issue No. 2 is answered accordingly. ( 10 ) IN the result, for the reasons stated above, the appeal is allowed and the judgment and decree of the Courts-below are set aside. The suit of the plaintiff is decreed as prayed for. No order as to costs. --- *** --- .