CHAIRMAN MUNICIPAL COUNCIL Vs. MOHAMOOD

JUDGEMENT

(1.) The plaintiff, in a suit for injunction, sought amendment of the plaint to include a prayer that the resolution on the basis of which the municipal council decided to lease out the property was void. That prayer was allowed by the impugned order notwithstanding the objection of the revision petitioner that the amendment would change the character of the suit so as to attract the prohibition contained in S.392 of the Kerala Municipalities Act, 1960. This Section says that no suit shall be instituted against the municipal council until the expiration of two months after notice in writing has been delivered to or left at the municipal office. The only exception to this requirement is in respect of a suit in which the only relief claimed is an injunction. The present suit, as originally laid, being a suit for injunction, notice postulated under S.392 was not issued to the municipal council. If on the other hand a declaration had been sought, such notice would have been necessary.

(2.) The injunction is sought to restrain the municipality from leasing out a shop belonging to it. The decision to lease was taken on the strength of the resolution passed by the council. It is that resolution which is now sought to be impeached by a declaration as to its invalidity. Such a prayer for declaration would bring the suit squarely within the purview of sub-section (1) of S.392 and such suit would not lie without serving the notice as provided under that sub-section. Accordingly, the amendment which would change the character of the present suit ought not to have been allowed until the notice mentioned under sub-section (1) of S.392 has been duly delivered to or left at the municipal office. The finding of the learned Munsiff that a prayer for declaration of invalidity does not amount to seeking relief is clearly wrong.

(3.) In the circumstances, the order under challenge is set aside. The Civil Revision Petition is allowed. No costs.