T.S. Misra, J. - (1.) This is a plaintiff's appeal against the decision of the III Addl. Civil Judge, Agra, dismissing the suit filed by him. The plaintiff had filed that suit for ejectment of the defendant from the premises in question and for recovery of Rs. 227/ - towards arrears of rent. It was alleged that the defendant Nagar Mahapalika of Agra committed default in making payment of rent inspite of service of notice of demand. The tenancy of the defendant was terminated by a notice which was served on it on 3 -4 -63 and as the defendant failed to comply with the same, the suit for the aforesaid reliefs was filed. The defendant contested the suit on a variety of grounds, one of the grounds being that the suit was not maintainable for want of a notice u/S. 571 of the U.P. Nagar Mahapalika Adhiniyam and the claim for arrears of rent prior to November, 1952, was barred by time under the same section. The trial court decreed the suit as prayed. Aggrieved from the said decision, the defendant filed an appeal which was allowed. The appellate court below held that the suit could not be filed without giving the requisite notice to the defendant Mahapalika u/S. 571 of the U.P. Nagar Mahapalika Adhiniyam. It also held that the rent for the period prior to November, 1962 is barred by the said section. Aggrieved from the said decision the plaintiff has come up in second appeal.
(2.) The learned counsel for the appellant submitted that it was not necessary for the plaintiff to serve a notice u/S. 571 of the U.P. Nagar Mahapalika Adhiniyam inasmuch as the provisions of the said Sec. were not attracted to the facts and circumstances of the case. In support of his arguments the learned counsel placed reliance on a Full Bench decision of this Court in the case of Antarim Zila Parishad (Distt. Board) v/s. Shanti Devi ( : 1965 AWR 146). In the Full Bench case it was alleged that the provisions of S. 192 of the District Boards Act barred the suit. It was held that a suit brought by contractor against the District Board for recovery of money due under the contract for the work done by him is not governed by the provisions of S. 192 of the District Boards Act. The provisions of S. 571 of the U.P. Nagar Mahapalika Adhiniyam are similar to the provisions of S. 192 of the District Boards Act with very little change therein. The learned counsel for the respondent urged that the words "or are in respect of any alleged neglect or default in the execution of this Act" which have been incorporated in S. 571 of the U.P. Nagar Mahapalika Adhiniyam are not to be found in S. 192 of the District Boards Act and on this ground he sought to distinguish the aforesaid Full Bench decision reported in : 1965 AWR 146 (supra). He submitted that as the defendant Nagar Mahapalika neglected or defaulted in making payment of the arrears of rent the case fell within the mischief of S. 571 of the U.P. Nagar Mahapalika Adhiniyam. Hence a notice under that Sec. was necessary to be served on the defendant before instituting the suit. The relevant portion of S. 571 of the U.P. Nagar Mahapalika Adhiniyam reads as follows: - - No suit shall be instituted against the Mahapalika or against the Mukhya Nagar Adhikari or against any Mahapalika officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act - - (a) until the expiration of two months next after notice in writing has been, in the case of the Mahapalika left at the Mahapalika office and, in the case of the Mukhya Nagar Adhikari or of a Mahapalika officer or servant delivered to him or left at his office, stating with reasonable particularity the cause of action, the nature of the relief sought, the amount of compensation claimed, if any, and the name and place of abode of the intending plaintiff and of his attorney, Advocate, pleader or agent, if any, of the purpose of such suit, nor (b) unless it is commenced within six months next after the accrual of the cause of action.
(3.) The similar provision exists in the District Boards Act. S. 192 of the District Boards Act reads as follows: - - (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 has before action is commenced, 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 -S. (1) shall, unless it is an action for the recovery of immoveable property or for a declaration of title thereof, be - commenced otherwise than within six months next after the accrual of the cause of action. (4) Provided that nothing in sub -S. (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 giving of the notice or the postponement of the commencement of the suit or proceeding. Similarly u/S. 326 of the Municipalities Act 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 left at its office......;