JOHN Vs. EXECUTIVE OFFICER

JUDGEMENT

(1.) PLAINTIFF in O. S. 342/85 and petitioner in LA. 2314/88 is the revision petitioner. O. S. 342/85 was originally filed with a prayer to restrain the 1st defendant by means of permanent prohibitory injunction from issuing licence to the 2nd defendant for running a rice and flour mill in the plaint schedule property and also to restrain the 2nd defendant from constructing, establishing or functioning a rice or flour mill in the plaint schedule property without obtaining statutory licence.

(2.) 1st defendant, who is the Executive Officer of the panchayat submitted before the court that licence has already been issued to the 2nd defendant even before the suit was filed. The plaintiff then filed I. A. 878/86 praying for amendment of the plaint so as to include a prayer for declaration that the licence, if any, issued by-the first defendant-Panchayat was without compliance with the statutory requirement and therefore illegal and invalid and that the 2nd defendant was not entitled to function the mill on the basis of the licence thus issued. The above LA. was dismissed by the trial court on the ground that no statutory notice as contemplated by the Kerala-Panchayat Act was. issued by the Plaintiff before seeking the amendment.

(3.) THE above application was rejected by the court below mainly on three grounds. THE court below found that the remedy of the plaintiff was to file a fresh suit after issuing notice and expiry of the statutory period. THE court below also found that if the amendment is allowed, it will change the nature of the suit. On an interpretation of the provisions contained u/s. 123 of the Kerala Panchayats Act, the court below took the view that once a suit was filed without issuing the statutory notice, as in the present case, seeking only injunction, thereafter the very same suit cannot be proceeded after making an amendment to the prayer, even though, before seeking such amendment, notice was issued to the executive officer. Apparently, the court below is taking the view that seeking an amendment cannot be treated as equivalent to bringing a suit against the Panchayat, as contemplated by S. 123.