RAM PRASAD PATHAK Vs. AGRA NAGAR MAHAPALIKA

JUDGEMENT

(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: - -

(3.) The similar provision exists in the District Boards Act. S. 192 of the District Boards Act reads as follows: - -