S.C. Pandey, J.

This is a revision against the order dated 17-4-1999 passed in Civil Suit No. 15-A/99 decided by 1st Additional District Judge, Katni.

Learned Counsel for the applicant has made a statement before me that he has filed the certified copy of the order dated 17-4-1999 on 5-7-1999. It be attached with the revision at appropriate place. The filing of certified copy is within the period of limitation and, therefore, the question of limitation does not arise and this revision is being decided finally after accepting the certified copy filed by the counsel for the applicant. The impugned order shows that one of the objections raised by the applicant was that they have not been served with one month's notice in accordance with the provisions of section 401(1) of the Municipal Corporation Act, 1956 (henceforth 'the Act') which is akin to section 80 of the old CPC as exists prior to amendment of the CPC by Act No. 104 of 1976. The objection is that the entire suit relates to exercise of power by the Municipal Corporation conferred upon it by the M.P. Foreign Liquor Rules, 1996 (henceforth 'the Rules of 1996'). It appears that the Municipal Corporation or the Municipal Commissioner has been authorised to act as a licensing authority in respect of FL-2 and FL-3 within the local limits of the jurisdiction of the Municipal Corporation. The Municipal Corporation is a corporate body and it has been conferred power by 'the Rules of 1996' to act as a licensing authority in respect of FL-2 and FL-3 within its local area. The objection, therefore, is section 401(1) of 'the Act' would be clearly applicable as the notice has to be served to the Municipal Corporation for refusal to renew the licence in favour of the non-applicant. That notice was never served by the non-applicant and, therefore, the plaint was liable to be rejected on the ground of non-service of the notice u/s 401(1) of 'the Act', which is mandatory for filing the suit.

It is not in dispute that notice u/s 401(1) of 'the Act' was not served upon the applicant and, therefore, the applicant was entitled to raise a ground u/s 401(1) of 'the Act'. However, it has been argued by Learned Counsel for the non-applicant that section 393 of 'the Act' permitted that the amended section 80(3) of the CPC by the Act No. 104/76 would be applicable to a civil suit of this nature and, therefore, its benefit could be given to the non-applicant. The further argument is that the objection raised by the applicant regarding service of notice u/s 401(1) of 'the Act' is liable to be rejected on the ground that the Court itself permitted the non-applicant to file the plaint without service of notice and that order was not challenged in revision.

The suit filed by the non-applicant is for declaration and mandatory injunction claiming that the non-applicant was a licence-holder for last ten years under the orders of the State Government and he was running the Dream Land Bar and Restaurant near the old Bus Stand, Laxmi Bai Ward, Katni. It was further alleged that he had not committed any breach of the licence FL-3 during the period, therefore, he applied for renewal of licence under FL-3 to the Municipal Corporation as per the rules framed under the Excise Act for the period between 1-4-1999 to 31-3-2000. He was to pay the necessary licence of Rs. 3,00,000/- , but no order was passed by the Municipal Corporation, Katni. It was alleged that the Collector, Katni was interfering with the question of grant of licence which he was not authorised to do as the Municipal Corporation has full power to renew the licence. The Municipal Corporation was not renewing the licence at the instance of the Collector, Katni who was acting mala fide on account of some personal grudge against the non-applicant. It was further alleged that the Collector had orally directed the applicant not to renew the licence and, therefore, the suit was filed for declaration and mandatory injunction requiring the Municipal Corpor