JUDGMENT S.N. Srivastava, J.
1. This second appeal has been preferred against the judgment and decree dated 8th August, 1977 passed by II Additional District and Sessions Judge, Bijnor dismissing Civil Appeal No. 136 of 1973 and confirming judgment and decree dated 2nd June, 1973 of trial Court in Original Suit No. 92 of 1969.
2. Plaintiff filed suit for prohibitory injunction restraining defendants from charging show tax from plaintiff as proposed by them with the allegation that plaintiff is doing cinema business within the limits of Municipal Board, District Bijnor. Plaintiff was served with a notice by which demand of tax from cinema show at the rate of Rs. 1.50 paise per show was claimed from him which is wholly unjustified, and it is in fact a fee which cannot be imposed unless there is an element of quid pro quo between the plaintiff and the defendants, show tax was imposed without following mandatory requirement of Sections 131 to 135 of the U.P. Municipalities Act (hereinafter referred to as the Act), the suit has been filed without giving notice under Section 326 of the Act as the object of the suit would have been defeated by giving the notice because Defendants were in haste to realize said tax.
3. Defendants contested suit and filed its written statement making a specific averment that they were realizing this show tax on amusement and entertainment as prescribed under Section 128(iii-a) of the Act and it is a tax riot a fee. In paragraph 9 of the written statement they have raised the question of maintainability of Suit as no notice under Section 326 of the Act was given.
4. Trial Court by the judgment and decree dated 2-6-1973 dismissed suit. Trial Court while dismissing the Suit has framed following issues which are as follows :--
"1) Whether the proposed tax is in fact a fee and there is no element of quid pro quo ?
2) In case it was a Tax whether it was levied illegally without compliance of provisions of Sections 131 to 135 ?
3) To what relief, if any, is the plaintiff entitled ?
4) Whether the Tax has been imposed without following the procedure, as alleged in para 5(a), (b) and (c) of the plaint ?
5) Whether the defendants have no right to realize the impugned tax from the plaintiff, as alleged in para 6 (a) of the plaint ?
6) Whether the suit is bad for want of notice Under Section 326 of the U. P. Municipalities Act?"
5. Trial Court decided issue No. 1 against plaintiff, Issue Nos. 2 and 4 were decided against defendants. Issue No. 5 was decided in favour of plaintiff. While deciding issue No. 6 trial Court held that Suit is bad in law for want of notice under Section 326 of the Act.
6. Plaintiff challenged this judgment and decree before Lower Appellate Court, who by the judgment and decree dated 8th August, 1977 dismissed the appeal. Before lower appellate Court only one question was raised, i.e. no notice was required to be given under Section 326 of the Act by the plaintiff. Lower Appellate Court while dismissing appeal and held the suit not maintainable for want of notice.
7. Heard learned counsel for the parties.
8. Learned counsel for appellant raised following substantial question of law in this Second Appeal :-
"Whether the view of the Courts below that suit was not maintainable for want of notice is manifestly erroneous ?"
9. Learned counsel for appellant urged that in view of the fact that a demand was made from plaintiff, in fact of the case, no notice was to be given as case is fully covered by proviso to Section 326 of the Act. He relied upon proviso (4) to Section 326 of the Act and urged that as the object of the suit, was going to be defeated by giving notice for suit, it was filed without giving notice. These facts were clearly mentioned in paragraph 8 of the plaint. He also relied upon 1980 UPLBEC 1, Bishambar Nath v. Municipal Board, Jhansi, (1980 All LJ 110) and 1980 UPLBEC 213, Abdul Majid v. The Nagar Palika, Bhadohi District Varanasi in support of his case and urged that the suit cannot be held to be bad for want of notice in view of the fact mentioned in paragraph 6 of the plaint.
10. In reply to the same, learned counsel for Municipal Board urged that the question whether recovery of tax is going to be made hurriedly through a recovery warrant for making recovery of certain amount cannot be held to be defeating object of suit, in case filing of suit is postponed for the period of notice. He relied upon Full Bench decision reported in AIR 1952 All 711 Haji Ahmad Raza v. Municipal Board, Allahabad and Division Bench decision reported in 1963 All LJ 688, Municipal Board, Shikohabad District Mainpuri v. Chandar Deo Prasad Srivastava in support of his case.
11. Considered arguments of learned counsel for the parties judgment of Courts below as well as law on the question involved in the present .Second Appeal.
12. Section 326 of the U.P. Municipalities Act is relevant for the purposes of the case which is being quoted below :-
Section 326 of the U.P. Municipalities Act "326. Suits against Board or its officers.--(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, and 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 shall, before action is commenced, have tendered sufficient amends to the plaintiff, the plaintiff shall riot 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 subsection (1) shall, unless it is an action for the recovery of immovable 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-section (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 the giving of the notice or postponement of the commencement of the suit or proceeding."
13. The Full Bench in its judgment in AIR 1952 All 711 (supra) distinguished word "inconvenience" and word "defeated" and held that in case a person is going to suffer some monetary loss which could be compensated by damages he could recover the monetary loss in the same suit for inconvenience and it cannot be said that the purpose of suit would be defeated by postponement of suit.
14. Paragraph 10 of the judgment of Full Bench (AIR 1952 All 711) (supra) reads as follows :-
"(10) The crucial point for determination is whether the object of the suit would be "defeated" by the giving of the notice or the postponement of the commencement of the suit. If the answer is, in the affirmative then no notice was necessary, but if it is in the negative then the suit must fall for want of notice. No doubt, the plaintiffs would have been inconvenienced by a delay of two months in the institution of the suit, but it cannot be said that the object of their suit would have been "defeated" by such delay. If the impugned bye-law is illegal the plaintiffs and all members of their community can be amply compensated by Damages. It i& only in cases where the loss cannot be adequately compensated by damages that the provisions of Sub-section (4) of Section 326 of the Municipalities Act are attracted.
An example of such a case would be where a Municipal Board in the purported exercise of the powers vested in it under the U.P. Municipalities Act proposes to demolish a building. It has got such powers, for instance, under Sections 186 and 263 of the Act and the aggrieved party may then bring a suit for an injunction to restrain the Board from demolishing the building. A delay of two months in such a case would defeat the purpose, because by that time the building would have been already demolished. The word "defeated" in Sub-section (4) of Section 326 is much stronger than the word "inconvenienced". If the plaintiffs' contention were accepted then it would mean that in every suit for an injunction there is no need of any notice, because in every such case a delay in the institution of the suit is bound to cause inconvenience to the plaintiff. It will be noticed that Sub-section (4) of Section 326 does riot dispense with the requirement of notice in all suits for an injunction in which the object would be "defeated" by the giving of the notice or the postponement of the commencement of the suit that this requirement has been dispensed with."
15. Relying upon this Full Bench decision, Division Bench of this Court in 1963 All LJ 688 (supra) interpreted decision of Full Bench and held that benefit of proviso (4) to Section 326 of the Act is limited only in the situation where the loss could not be coin pensated by damages and Division Bench further held that in the Instant case no circumstance existed which would have caused irreparable loss to the plaintiffs which could, not be compensated if the suits had been decreed. If the plaintiffs had paid the tax demanded from them and if their suits would have been decreed they could have easily claimed back their taxes by way of refund. Hence Division Bench held that notice was necessary before filing the suit.
16. Rulings relied upon by learned counsel for appellant are not applicable in the facts of the present case. The case of 1980 UPLBEC 17 : (1980 All LJ 110) (supra) is a case where the Municipal Board was going to make certain constructions in a particular plot. Similarly the second case 1980 UPLBEC 213 (supra) was also a case where suit for injunction was filed but subsequently amendment was made that during pendency of the case certain constructions were made and the Court held that it was not mandatory to give notice. These cases are not applicable in the facts of the present case.
17. Law laid down by the Division of this Court in 1963 All LJ 688 (supra) is fully applicable in the present case, as it was also a case of recovery of tax and Division Bench held that the purpose would not be defeated in case recovery of tax is made. Plaintiff could get damages in case suit succeeds and his money may be refunded.
18. As question of filing suit without notice under Section 326 (4) of the Act is the only point raised before the Lower Appellate Court as well as only point pressed before this Court, in view of the law laid down by the Full Bench as well as by the Division Bench, noticed above, I am also of the view that as matter is of recovery of certain amount as tax requirement of notice is mandatory before filing the suit. Even though it may cause inconvenience to plaintiff, purpose of suit cannot be said to be defeated as plaintiff could get back his money by claiming damages in the suit instituted by him.
19. In view of the settled law detailed above, no substantial question of law arises' to be considered in this Second Appeal
20. Second Appeal fails and is dismissed.
21. Panties shall bear their own cost.