D.S.Sinha - (1.) HEARD Sri Ashok Mohiley, learned counsel appearing for the Nagar Mahapalika, Allahabad and Allahabad Development Authority, the defendant-applicants, Sri Nagendra Kumar Srivastava, learned counsel appearing for the opposite party no. 1 and Sri Vishnu Chandra Srivastava, learned counsel appearing for the opposite party no. 7, at length and in detail.
(2.) IN Suit No. 403 of 1980, Jai Narain Singh v. Nagar Mahapalika, Allahabad and others, giving rise to the instant revision, the defendant-applicants raised the plea that the suit was barred by the provisions of section 571 of the U. P. Nagar Mahapalika Adhiniyam, 1959, hereinafter called the Adhiniyam. This plea of the applicants was based on the allegation that under sub-section (i) of section 571 of the Adhiniyam no suit could be instituted against them without serving two months' prior notice upon them. The learned III Addl. Civil Judge, Allahabad, who is seized of the matter, by means of his order dated 4th September, 1989, impugned in the instant revision, rejected the aforesaid plea of the applicants. Hence this revision. For rejecting the plea of the applicants the learned Judge placed reliance on the proviso to sub-section (i) of section 571 of the Adhiniyam which provides that nothing in sub-section (i) of section 571 should 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 postponment of the commencement of the suit or proceeding. Relying upon a division court decision of this court rendered in The Municipal Board of Benares v. Gajadhar, reported in 1918 ALJ at page 793, Shri Ashok Mohiley, learned counsel of the applicants urges that notice under section 571 of the Adhiniyam is a must notwithstanding the proviso thereto, and in the absence thereof the suit of the opposite parties is not maintainable. Alternatively, Shri Mohiley submits that the suit in question is not a suit merely for injunction but it also involves the question of title, and in this view of the matter, the learned Judge was wrong in invoking the aforesaid proviso to section 571 of the Adhiniyam.
(3.) RELIANCE upon the decision in the Municipal Board Benares v. Gajadhar is misplaced. In that case the suit was not for the only relief of injunction as is the situation in the instant case. Originally, it involved reliefs of establishment of the plaintiff's title and injunction. The plaint was then amended. Even after amendment, in substance, their remained two reliefs, namely, declaration and injunction. This court, therefore, held that the injunction not being the only relief claimed service of notice as provided in section 326 of the U. P. Municipalities Act, 1916, which corresponds with section 571 of the Adhiniyam, was necessary. Alternative submission of Shri Mohiley also has no legs to stand. A copy of the plaint is before this court by way of Annexure-1 to the affidavit of Sri Shiv Lakhan Yadav, Legal Adviser of Nagar Mahapalika, Allahabad, filed in support of the stay application. A bare perusal of the relief-A of the plaint reveals that the suit is only for injunction and nothing else. No relief in respect of title etc. as is asserted by Shri Mohiley, is claimed in the suit.;