JUDGMENT

M.H. Beg, J. - This is a plaintiffs' second appeal arising out of a suit for a permanent injunction to restrain the respondent, Municipal Board of Bijnor, from enforcing a bye-law under which an amount of Rs. 8/- was sought to be realised as licence fee from the plaintiffs. It appears that the Municipal Board had made certain bye-laws in 1927, under Section 298 of the U.P. Municipalities Act (hereinafter referred to as `the Act') , for the regulation of flour mills. These bye-laws have been amended from time to time. In 1937, an additional bye law was made imposing a licence fee at the rate of Re. 1/2- per H.P. per annum on each flour mill. This fees was said to have been raised in 1947 from Re. 1/2 to Rs. 10/-, and, thereafter, reduced to Rs. 8/- per annum by a subsequent amendment it as a result of objections by flour mill owners and interference by the State Government. The particulars of this amending bye-law and the date on which it came into force are not given in the plaint. The plaint does not state whether the particular bye-law fixing the licence fees at Rs. 8/- was void ab initio or became void in 1954 or earlier, and, if so, for what specific reasons. In the plaint, as originally framed, the plaintiffs prayed only "that through a prohibitory injunction the Municipal Board Bijnor (defendant) be restrained permanently from enforcing the present bye-laws for the regulation and control of flour mills in the Bijnor Municipalities levying a licensing fee of Rs. 8/- per horse power per annum against the flour mills of the plaintiffs, which is really a tax and has been imposed to raise the general revenue of the Board."

2. The Municipal Board took various objections, including one of the validity of the notice given under Section 326 of the Act. This section reads as follows :-

326 (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, 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 not 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 sub-sec. (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title there-of be commenced otherwise than within six months next after the accrual of the cause of action.

(4) Provided that nothing in sub-sec. (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 the postponement of the commencement of the suit or proceeding."

3. The trial court held that the notice was valid as the only defect in the notice, set out in the paragraph 9 of the written statement, was said to be that the matter had been "finally settled" so that the Plaintiffs had no right to question the payment. After looking at paragraph 9 of the written statement, I find that the objections to the plaintiffs' suit found there were : firstly, that the mill owners having made a representation the matter was "finally settled" by reduction from Rs. 10/- to Rs. 8/- so that they had no right to question the payment now; and, secondly, that the notice under Section 326 of the Act was defective and illegal. The defendant had clumsily put two separate objections