- (1.)THIS is a petition to revise the order of the District Judge of Pratapgath dated December 10, 1966.
(2.)IT will be sufficient to mention that the suit giving rise to the impugned order was instituted against the Municipal Board of Nimbahera on August 31, 1963. IT was not stated in the plaint that the plaintiffs had complied with the requirement of sec. 271 of the Rajasthan Municipalities Act, 1959 (Act No. 38 of 1959, hereinafter called the Act) in the matter of giving a written notice to the Board for the institution of the suit. The defendant Board filed its written statement on November 28, 1963. IT was not pleaded in that written statement that the plaintiffs had failed to comply with the requirement of the said sec. 271 and the case proceeded to trial. A petition was, however, filed by the Wakf Board of Rajasthan on April 9, 1966, praying that it may be impleaded as a plaintiff in the suit and expressing its willingness to join the trial at the stage already reached. The defendant Municipal Board stated that it had no objection to this being done and the Wakf Board was accordingly arrayed as a plaintiff by an order dated April 9, 1966. A direction was, all the same, given that the plaintiffs should make a formal amendment in the plaint adding the Wakf Board as one of the plaintiffs. An amended plaint was accordingly filed on April 23, 1966, and the amendment was formally allowed by the learned District Judge on May 19, 1966. The learned District Judge, however, took the precaution of asking the defendant Municipal Board to file a fresh written statement or to amend its earlier written statement if it so desired. But instead of availing of that opportunity, the Municipal Board re-iterated that it adhered to its earlier written statement dated November 28, 1963, adding, at the same time, that it did not want to make any addition to the pleas already taken. The case therefore proceeded further in the trial court. However, the Municipal Board made an application under O. 6, r. 17 C. P. C. on November 5, 1966, stating, inter alia, that it should be allowed to take two additional pleas in defence. Firstly, the Municipal Board wanted to take the plea that the plaintiffs had not made a mention in the plaint that they had given a notice to the defendant in accordance with the requirement of sec. 271 of the Act, and, secondly, that the Wakf Board which had newly been added as a plaintiff had not cared to give another notice under sec. 271 of the Act. The learned District Judge considered the petition, but rejected it by his impugned order dated December 10, 1966. This is how the present revision petition has been filed by the defendant.
It has been argued by Mr. Ganpat Singh, learned counsel for the defendant Municipal Board of Nimbahera, that the learned District Judge failed to appreciate that the plaintiff's suit was liable to dismissal for their failure to make a mention in the plaint that they had given a notice to the Municipal Board under sec. 271 of the Act and that the defendant was, therefore, prevented from taking an important defence which went to the root of the case. Even though the argument has been put on a high pedestal, it is really of no substance. The reason is that although the plaintiffs had not made a mention in the original plaint dated August 31, 1963, that they had complied with the requirement of sec. 271 of the Act, the defendant Municipal Board did not care to take the plea in the written statement that the suit was liable to dismissal for that reason. What is worse, the defendant failed to raise such a plea for a long period of time and went to the extent of reiterating that it had taken all its pleas in defence as mentioned in the written statement dated November 28, 1963, even though the trial court gave it another opportunity to take additional pleas when the plaint was allowed to be amended on May 19, 1966. In fact the defendant was made conscious of the requirement of sec. 271 of the Act when the notice which, according to the plaintiffs, had been given in pursuance of that requirement, was exhibited in the trial court on August 26, 1965, and was tendered in evidence. The fact that the defendant did not take a plea of want of compliance with the requirement of sec. 271 even at that stage, justifies the argument of Mr. Shisodia, learned counsel for the non-petitioners, that the defendant had in fact and substance waived any defence that might have been available to it on account of the failure of the plaintiffs to make a statement in the plaint that they had complied with the requirement of sec. 271 of the Act. I have no doubt that it is open to a defendant to waive such a defence. There is therefore no force in the argument that the learned District Judge erred in rejecting the application of the defendant for making an amendment to the effect that the plaint was liable to rejection on account of the failure to make a statement to the effect that the plaintiffs had complied with the requirement of sec. 271.

The second argument which has been urged by Mr. Ganpat Singh is that it was necessary for the Wakf Board to give another notice to the defendant under sec. 271 of the Act when it was arrayed as a plaintiff and that the trial court erred in not giving the defendant an opportunity to take that plea by amending its written statement. Once again, I find that there is no force in this argument because it appears that even though the Wakf Board was arrayed as a plaintiff by the order dated May 19, 1966, the defendant, as has been stated, did not avail of the opportunity to file another written statement or to take additional pleas in its defence when such an opportunity was expressly given to it by an order of the trial court. This shows that the defendant had really waived its right to take a defence on the basis of sec. 271 of the Act. Moreover, sec. 271 of the Act prohibits the

Institution" of a suit, inter alia against a municipal board until the expiration of two months next after notice thereof in writing has been delivered in the manner provided for in the section, and as the suit had already been instituted on August 31, 1963, there is no justification for the argument that it was instituted once again on the date on which the Wakf Board was arrayed as a plaintiff at its request. It appears that while sec. 59 of the Wakf Act, 1954, provides that the Wakf Board may appear and plead as a party to the suit or proceeding in respect of a wakf or any wakf property by or against a stranger to the wakf or any other person, that section does not mean that if the Wakf Board prays that it should be allowed to appear and plead in a suit as a plaintiff, that will have the effect of taking an already instituted suit off the record so as to require its re-Institution afresh with the Wakf Board as one of the plaintiffs. The proper view to take appears to be that, in such an eventuality, the trial court may allow the request of the Wakf Board to appear and plead as a plaintiff, but not so as to put an already instituted suit in jeopardy. Thus, if in a given case, the plaintiff has already complied with the requirement of sec. 271 of the Act, it will not be necessary to comply with that section afresh if the Wakf Board makes a prayer under sec. 59 of the Wakf Act, 1954, that it would like to appear and plead as a plaintiff in the suit and the prayer is allowed.

The learned District Judge has exercised his discretion rejecting the prayer of the defendant for leave to amend the written statement, and I see no reason to interfere with his discretion. The revision is dismissed, but there will be no order as to the costs. .

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