K. Ramamoorthy, J.
(1) The plaintiff in the present suit prayed for the following relief:
"THISHon'ble Court may be pleased to declare that the alleged settlement contained in the letters dated 7.6.1976, 23.6.76, 3.8.76, 21.9.76 and the said alleged joint application dated 31.7.77 is illegal, invalid, void and is not binding on the plaintiff, in view of the facts that the same were got written and signed by the plaintiff under duress, force and coercion. The decree for declaration to this effect may kindly be passed."
(2) The case had a chequered career. The defendant filed the written statement taking plea that notice under Section 49 of the Punjab Municipal Act, 1911 was not issued by the plaintiff and, therefore, the suit is not competent.
(3) On 3.11.1981, issues were framed by this Court and the first issue is "whether the suit is barred in view of the provisions contained under Section 49 of the Punjab Municipal Act, 1911?"
(4) The suit is filed on the basis of the order passed by this Court on 13.2.1980 setting aside the award with the following observations :
"The award in the present case relates to subject which was not referred to the arbitration. So in substance it is not an Award. It is accordingly set aside. In my view if the second contract i.e. the settlement is avoided by the Company in appropriate proceedings, then it may be that the disputes may have to be referred to the Arbitrator, but unless that happens the Arbitrator cannot proceed any further. So there is no point in remanding the case back to the Arbitrator to decide the dispute on merits".
(5) This Court did not permit the plaintiff to file the suit without issuing notice under the Punjab Municipal Act, 1911, and it is not stated in the plaint that any notice was issued to the defendant.
(6) The matter squarely comes within the mischief of Section 49 of the Punjab Municipal Act, 1911. Section 49 of the Punjab Municipal Act, 1911 reads as under:
"SECTION49.-Suits against Committee and its officers - No suit shall be instituted against a Committee, or against any officer or servant of a Committee, in respect of any act purporting to be done in its or his official capacity, until the expiration of one month next after notice in writing has been, in the case of a committee, delivered or left at its office, and in the case of an officer or servant, delivered to him or left at his office or place of abode, staring the cause of action and the name and place of abode of the intending plaintiff; and the plaint must contain a statement that such notice has been so delivered or left:"
Provided that nothing in this section shall apply to any suit instituted under Section 54 of the Specific Relief Act, 1877.
(7) Section 54 of the Specific Relief Act, 1877 mentioned in the proviso of above section refers to the grant of perpetual injunction by the Court. The Old Specific Relief Act was the repealed by the Specific Relief Act, 1963 the present section pertain to the perpetual injunction in the new Act is Section 38 of the Specific Relief Act, 1963 and that is not relevant for the present purpose.
(8) Dealing with the mandatory nature of issue of notice under Section 80 of the Civil Procedure Code, the Supreme Court has laid down in the case of Gangappa Gurupadappa Gugwad v. Rachawwa & Ors., . That the provision is mandatory and no suit can be entertained if notice was not issued by the plaintiff and the plaint has to be rejected.
(9) The plaint is accordingly liable to be rejected in view of the well settled position in law.
(10) The rejection of the plaint would not preclude the plaintiff from instituting a fresh suit after issuing notice to the New Delhi Municipal Council by virtue of provisions of Order Vii Rule 13, CPC. The plaintiff shall be entitled to institute a fresh suit after giving notice as required under Section 49 of the Punjab Municipal Act, 1911.
(11) During the pendency of this suit the Parliament had enacted the New Delhi Municipal Council Act, 1994. Section 385 of the New Act reads as follows :
(1)No suit shall be instituted against the Council or against the Chairperson or against any Municipal officer or-other Municipal employee or against any person acting under the order or direction of the Chairperson or any Municipal officer or other Municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye-law made thereunder until the expiration of two months after notice in writing has been delivered at the Municipal office and, in the case of such officer,employee or person, unless notice in writing has also been delivered to him at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered. (2) No suit, such as is described in S, (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises. (3) Nothing in Sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the 'notice or the postponement of the institution of the suit".
The plaintiff should have issued two months notice before filing fresh suit on the same cause of action.
(12) Accordingly, the plaint is rejected. "The plaintiff is given liberty to file a fresh suit on the same cause of action after issuing two months notice to the New Delhi Municipal Council under Section 385 of the New Delhi Municipal Council Act, 1994. There shall be no order as to costs.