Jagdish Sahai, J. - (1.) This is a second appeal directed against the decree passed by the learned District Judge, Allahabad, dated 24-9-1956 in which the decree passed by the trial court dated 20-10-1954 has merged.
(2.) The appellant the U.P. Agricultural Credit Bank, Ltd., Allahabad, made an application under Sec. 7-B of the U.P. (Temporary) Control of Rent and Eviction Act (hereinafter called the Act) against the erstwhile Municipal Board (now the Corporation) of Allahabad which is the sole respondent before me. The appellant is the owner of premises No. 19, Muir Road, Allahabad, which consists of a main building (hereinafter referred to as the bungalow and two sets of servants' quarters. The main bungalow is divided into two tenements. The eastern tenement was allotted to the respondent on 20th of Sept., 1949, and a few months thereafter the western tenement was also allotted to it on the 16th of June, 1950. The case set up by the appellant in its application under Sec. 7-B. of the Act was that the respondent had agreed to pay Rs. 40 per month for each of the two portions and that a sum of Rs. 209 was due from them as arrears of rent up to 28-2-1953. The appellant also claimed different sums on the allegation that it was entitled to receive from the respondent those amounts as damages for use and occupation of the land and outhouses of the appellant which had not been allotted to the respondent. In all the appellant claimed a sum of Rs. 976-8-9. The application was contested mainly on the ground that Rs. 40 per month was not the agreed rent and that a claim in respect of damages for use and occupation of allotted portions of the premises could not be maintained under Sec. 7-B of the Act. It was also pleaded that the claim in respect of arrears of rent was barred by Or, II R. 2 and Or. XXIII, R. 1, C.P.C. The application was converted into a suit and one of the pleas taken in defence by the respondent was that no notice having been given to it under Section 326 of the U.P. Municipalities Act the suit was not maintainable. The contention of the appellant was that the application under Sec. 7-B of the Act amounted to a notice within the meaning of Section 326 of the Municipalities Act The trial Court decreed the suit for a sum of Rs. 209 and dismissed it for the rest. The Municipal Board did not file any appeal but the plaintiff appellant filed one before the learned District Judge, Allahabad. The learned District Judge affirmed the decree of trial Court on the finding that there was want of notice under Section 326 of the Municipalities Act and consequently the suit was not competent but inasmuch as no one had appealed against that part of the decree which related to the sum of Rs. 209 that was allowed to stand intact.
(3.) The only point that requires consideration in this appeal is whether the copy of the application under Sec. 7-B of the Act served upon the Municipal Board could be treated to be a notice under Section 326 of the Municipalities Act. Sec. 326 of the Municipalities Act reads as follows:- "326. (1) No suit shall be instituted against a board, or against a member, officer or servant of a board, in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been, in the case of a board, left at its office, and, in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. (2) If the board, member, officer or servant shall, before action is commenced, have tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered, and shall also pay all costs incurred by the defendant after such tender. (3) No action such as is described in Sub-Sec. (1) shall, unless it is an action for the recovery of immoveable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action: (4) Provided that nothing in sub-sec. (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding.";