1. - Heard learned counsels for the parties.

2. The defendant-petitioner Raj Kumar Nalwaya, has filed the present revision petition before this Court being aggrieved by the order dated 17.2.2009 of the learned trial Court rejecting his application under Order 7 Rule 11 C.P.C. in a suit for injunction filed by the respondent-plaintiff. Atam Singh Kalara seeking cancellation of permission for raising construction granted by the defendant No. 2-Municipal Council, Udaipur on 5.2.2008 in favour of defendant No. 1-Raj Kumar Nalwaya and also permanent injunction against him not to raise construction on his plot of land.

3. The application under Order 7 Rule 11 C.P.C. was filed by defendant-petitioner, inter alia, on the ground that the suit was instituted by the plaintiff without giving any prior notice to the Municipal Council, Udaipur and, therefore, the suit was barred in view of Section 271 of the Rajasthan Municipalities Act, 1959, (for brevity, hereinafter referred to as 'Act of 1959'), which stipulates that no suit shall be instituted against a Board or its officials until the expiration of two months next after the notice thereof in writing has been served on the Board. Sub-section (3) of Section 271 of the said Act provides that such suit shall not be barred, if the only relief claimed is an injunction,. of which object would be defeated by giving of such notice.

4. Learned trial Court has rejected the defendant's application under Order 7 Rule 11 C.P.C. on the ground that since the relief No. 1 in the plaint was withdrawn by the plaintiff under Order 23 Rule 1 C.P.C. on 17.2.2009, therefore, the requirement of Section 271(1) of the Rajasthan Municipalities Act of 1959 of giving a prior notice to the Municipal Council, Udaipur, no longer could hit the maintainability of the suit and, therefore the defendant's application under Order 7 Rule 11 C.P.C. deserves to be rejected.

5. Mr. Arun Bhansali learned counsel appearing for the defendant-petitioner submitted that even though the relief No. 1 from the plaint was withdrawn by the plaintiff, however, the relief No. 4 claimed in the plaint, which was never withdrawn by the plaintiff in substance, amounted to same as relief No. 1 and by relief No. 4 in the plaint, the plaintiff had claimed that permission of construction granted in favour of defendant No. 1 on 5.2.2008 may be directed to be cancelled and construction, if any raised, may be demolished by the Municipal Council. Udaipur and in view of said relief claimed in the suit the requirement of serving an advance notice under Section 271(1) of the Act of 1959, cannot be said to have obliterated and in view of clear mandate of sub-section (1) that no such suit can be instituted without such prior notice the present suit deserved to be dismissed at the threshold. He further submitted that sub-section (3) carving out an exception to sub-section (1) of Section 271 of the Act, did not clearly apply in the present case as no such emergent cause was shown in the plaint requiring dispensing with of such notice on the part of the plaintiff to the Municipal Council.

6. On the other hand, Mr. Suresh Shrimali, learned counsel for the plaintiff-respondent relied upon Allahabad High Court decision in the case or Gaja & Ors. v. Dasa Koeri and Ors. reported in AIR 1964 Allahabad 471 and Allahabad High Court decision in the case of Ishtiyaq Husain Abbas Husain v. Zafrul Islam Afzal Husain & Ors. reported in AIR 1969 Allahabad 161 and submitted that objections in regard to notice under Section 271(1) of the Act of 1959 could be raised only by the Municipal Council and not by the private defendant, Raj Kumar Nalwaya, the present petitioner and therefore, the suit cannot be dismissed on this ground as not maintainable. He further submitted that the learned trial Court was justified in rejecting application of the defendant-petitioner under Order 7 Rule 11 C.P.C. and consequently, the present revision petition filed by the defendant-petitio