JUDGMENT :

1. Heard Shri Ashok Kumar Tiwari, learned counsel for the petitioner and Shri Dinesh Kumar Yadav, learned counsel for the respondent.

2. This petition has been filed challenging the order dated 08.11.2023 passed by Civil Judge (Junior Division), Farenda, District- Maharajganj in Original Suit No. 684 of 2023 (Stainli Khan Vs. Adhyaksha, Adarsh Nagar Panchayat Anand Nagar and another) rejecting the application filed by the defendant under Order 7 Rule 11 C.P.C., as well as the order dated 30.11.2023 passed by District Judge, Maharajganj in Civil Revision No. Nil/2023 (Executive Officer, Nagar Panchayat Vs. Stainli Khan and another) dismissing the revision filed against the order dated 08.11.2023.

3. Brief facts of the case are that the plaintiff-respondents instituted Original Suit No. 684 of 2023 (Stainli Khan Vs. Adhyaksha, Adarsh Nagar Panchayat Anand Nagar and another) for permanent prohibitory injunction restraining the defendants not to raise constructions over the rasta shown by letters A,B,C,D, in the plaint map and obstruct the right of way of the plaintiff-respondents.

4. As per plaint's case, gate of the plaintiff's house is towards South and there is a 12 feet wide rasta towards the south of the plaintiff's house, which is in existence prior to the abolition of the zamindari. It has been further averted in the plaint that it is the only rasta available to the plaintiff-respondents to approach the road from his house and there is no other rasta available to the plaintiff-respondents. This rasta has been used by the plaintiff as well as his ancestors, the defendants are going to raise constructions over the rasta of which they had no legal right. Hence the suit. Relevant paragraph nos. 1, 2, 3, 4 and 5 of the plaint are quoted as under:

5. The defendant-petitioner has appeared in the suit and filed an application paper no. 37 Ga/1 under Order 7 Rule 11 C.P.C., mainly on the ground that prior to filing of the suit, the plaintiff has not given any notice as required by Section 326 of the U.P. Municipalities Act, 1916 as well as under Section 80 C.P.C. and therefore, the suit filed by the plaintiff-respondents is bared by law and the plaint so filed is liable to be rejected in view of sub-clause 11-(d) of Order 7.

6. The respondents contested the application by filing objection and the trial-court vide order dated 08.11.2023 rejected the application filed by the petitioner under Order 7 Rule 11 holding that the suit is not barred by Section 326 of the U.P. Municipalities Act, 1916. Revision filed by the petitioner against the aforesaid order was also rejected by the revisional court, vide order dated 30.11.2023, hence the present petition.

7. It has been contended by learned counsel for the petitioner that the only question involved in the present petition is whether the suit filed by the plaintiff-respondents is barred for want of notice under Section 326 of U.P. Municipalities Act, 2016 as admittedly the plaintiff-respondents has not given any notice under Section 326 of the U.P. Municipalities Act, 1916 and as such the plaint is to be rejected, in view of sub-clause D of Order 7 Rule 11 C.P.C.

8. Before proceeding further, it would be appropriate to consider the provisions of Section 326 of the U.P. Municipalities Act, 1916 which reads as under:

"326. Suits against (Municipality) or its officers.-- (1) No suit shall be instituted against a (Municipality), or against a member, officer or servant of a (Municipality), in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two month next after notice in writing has been, in the case of a (Municipality), left at its office, and, in case 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 co