JUDGMENT : Rajiv Joshi, J. 1. Heard Sri J.S. Pandey, learned counsel for the defendant-appellant and Sri Manu Khare, learned counsel for the plaintiff respondents. 2. This second appeal under Section 100, CPC has been filed by the defendant-appellant against the judgment and decree dated 5.10.2010 passed in Civil Appeal No. 152 of 2008, whereby the lower appellate Court while reversing the judgment and decree dated 17.11.2008 of the trial Court, has allowed the appeal filed by the plaintiff-respondents and decreed the suit. 3. The facts of the case as reflect from the record are thus: 4. A lease (pattd) was allotted to the defendant on 25.8.1955 for a period of five years. The lease deed contained a condition that the lease would be renewable 15 days earlier to the date of its expiration. Thereafter, the said lease was never renewed or extended and ultimately the suit in question was filed by the plaintiff-Waqf on 15.9.1990 on the ground that the lease had already expired and defendant failed to vacate the disputed land, and therefore, the relief for possession, ejectment and recovery of arrears of rent on account of unauthorized use and occupation, was claimed. 5. The suit was contested by the defendant-appellant by filing the written statement wherein he denied the plaint averments and specifically took the plea that the suit filed by the plaintiff-Waqf is not at all maintainable in absence of any notice under Section 326 of Municipalities Act (hereinafter referred to as the Act). It was stated that until and unless notice is given, the suit for possession, recovery of arrears of rent and ejectment cannot be decreed. Both the parties in support of their respective claims, adduced the oral and documentary evidence. 6. The trial Court vide judgment and decree dated 17.11.2008 dismissed the suit with the finding that since no notice as contemplated under Section 326 of the Act was given and the said notice being mandatory, therefore, in absence of same the suit cannot be decreed. 7. Against that order, the civil appeal was filed by the plaintiff-respondent which was allowed vide judgment and order dated 5.10.2010 with the finding that the provisions of Section 326 of the Municipalities are not attracted in the present case and as such no notice is required and thus the suit of the plaintiff was decreed. 7. Against that order, the civil appeal was filed by the plaintiff-respondent which was allowed vide judgment and order dated 5.10.2010 with the finding that the provisions of Section 326 of the Municipalities are not attracted in the present case and as such no notice is required and thus the suit of the plaintiff was decreed. The order passed by the lower appellate Court dated 5.10.2010 is impugned in the present second appeal. 8. Learned counsel for the appellant contends that the notice as required under Section 326 of the Municipalities Act is mandatory. He further placed reliance upon sub-Section (4) of Section 326 which provides that sub-section 1 shall be applied to a suit wherein only relief claimed is for injunction of which the object would be defeated by giving of the notice or the postponement of commencement of the suit or proceeding. In support of his contention, he placed reliance on the judgment of this Court in the case of Devendra Kumar v. Nagar Palika Parishad Shamli and others, 2016(2) ADJ 863 and Haji Ahmad Raza v. Municipal Board, 1952 AIR (ALL)-0-711. 9. On the other hand Sri Manu Khare, learned counsel appearing on behalf of respondent-plaintiff contends that the provisions of Section 326 is not at all attracted in the present case and no such notice is required prior to filing of the suit. He placed reliance of sub-section (1) of Section 326 which provides that no suit shall be instituted against the municipality 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 case of municipality. 10. He further submitted that a Full Bench judgment in the case of Dargahi Lal Nigam v. Cawnpore Municipal Board, AIR 52 All 382, has been distinguished and held to be not a good law by a subsequent Full Bench judgment of this Court in the case of Zila Parishad (District Board) v. Smt. Shanti Devi and another, AIR 1965 (All) 590 , therefore, filing of the suit for recovery of rent and ejectment is not an official act but it is unofficial act for which no notice as required under sub-section (1) of Section 326 is necessary. 11. I have considered the rival submission so raised by the learned counsel for the parties and perused the record. 11. I have considered the rival submission so raised by the learned counsel for the parties and perused the record. 12. The sole question arises in the present appeal are whether in a suit filed against the municipalities the notice under Section 326 of U.R Municipalities Act, 1916 (hereinafter as the "Act, 1916") is mandatory or not? 13. For considering the said question the provisions of Section 326 of the Act, is quoted as under: "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 months 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 contain a statement that such notice has been so delivered or left. (2) If the [Municipality], 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, shall also pay all costs incurred by the defendant after such tender. (3) No action such as is described in sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action. (4) Provided that nothing in sub-section (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." 14. (4) Provided that nothing in sub-section (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." 14. The similar provision also exists in Section 192 of U.P. District Board Act (Act No. 10 of 1922) which read as follows: "(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 has before action is commenced, 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-section (1) shall, unless it is an action for the recovery of immoveable property or for a declaration of title thereof, be commenced otherwise than within six months next after the accrual of the cause of action. (4) Provided that nothing in sub-section (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 giving of the notice or the postponement of the commencement of the suit or proceeding." 15. From the aforesaid provisions it is apparent that notice under Section 326 as well as 196 of the U.P. District Board Act, is required in respect of act done or purporting to have been done in its or is official capacity..... (emphasis supplied) 16. From the aforesaid provisions it is apparent that notice under Section 326 as well as 196 of the U.P. District Board Act, is required in respect of act done or purporting to have been done in its or is official capacity..... (emphasis supplied) 16. The full Bench in the Case of Zila Parishad (District Board) v. Smt. Shanti Deven and another, AIR 1965 (All) 146 held that: "If an act comes within the scope of the duties, powers, or functions of the authority created by the statute it is an act done under the official capacity or authority and may also be an act done under the Act or statute. The words done under an Act' require more direct connection between the act and the statute than "done under the official capacity or authority-it must be an act directly required or permitted expressly or by necessary implication, to be done by the statute. If an statute authorises the doing of an act it is an act done under the statute; it is also done under the authority of the statute or in the official capacity of the doer. An act done, though not under an express or implied provision of a statute but in performance of a statutory duty or in exercise of a statutory power or function is done under the authority of the statute. If the statute confers official status or capacity upon the doer it is done under the official authority or the official capacity." It was further laid down laid "act" within the meaning of the words used in various statutes may include omission or failure to do an act, but in order that the particular statute covers an omission or failure it must have been done under the statute or in the official capacity or under the official authority. There is no difficult in respect of a positive act but in respect of a negative act, i.e., an omission or failure to do a certain act there must be a statutory authority for the negative act or must have been done in the official capacity of the authority concerned. In other words, there must be a provision in the statute requiring or permitting the authority not to do the act. In other words, there must be a provision in the statute requiring or permitting the authority not to do the act. If what is under the scope of the words is a positive act, omission or failure to do it does not necessarily come within their scope and may not be said to be under the Act; merely because doing a positive act is within this scope of official authority or capacity or the statute it cannot be said that merely omission or failure to do it also is within the official authority or capacity or the statute. It is essential to have a statutory provision expressly or impliedly requiring or authorising the omission or failure. The U.P General Clauses Act, Sec. 4(2) lays down that the words which refer to acts done extend also to illegal omission when the word "act' is used with reference to an offence or a civil wrong. This means that an omission or failure itself must be (an offence or) a civil wrong. An omission failure can be a civil wrong only if there is a law declaring it to be so or prohibiting it. An omission or failure to do positive act may or may not amount to a civil wrong; it depends upon the statute' dealing with the act. If it compels it be done for the benefit of another person so that he has a right to get it done, omission or failure to do it may be said be a civil wrong. But if it does not such a right or merely permits or to do it cannot be said to be a civil wrong and, therefore, is not within the of "act done'." 17. It is also observed in that case that non payment of arrears of rent is a part of cause of action only a suit for damages for non payment i.e. in a suit breach of contract, which was also held that Section 192 of the District Board Act: "Section 192 of the District Boards Act applies to a suit in respect of an act done. A suit has to be based on a cause of action. For the applicability of Section 192 it must be in respect of an act done by the Board. A suit has to be based on a cause of action. For the applicability of Section 192 it must be in respect of an act done by the Board. Combining the two requirements one arrives at the requirement that an act one by the Board must complete the cause action against it. The Board's act is the act without which there is no cause of action in the plaintiffs favour and Section 192 requires that it is this act which must have been done by the Board in its official capacity?" 18. It was also observed in the Full Bench that in case the suit was not based on withholding of payment or non payment is not civil wrong within the general case and, therefore, does not come in the definition of Act "used in Section 192" 19. Applying these principle laid down in full Bench case to the facts in the present case, it would be found that the provisions of Section 326 of the Act are not attracted. The suit is not based on the breach of contract as the plaintiff-respondent has claimed the arrears of rent for a particular period. There is no provision in the U.P. Municipalities Act, 1916 requiring or permitting the municipality not to pay arrears of rent. The Municipality Board, the defendant-appellant took the premises in question of lease and was, therefore, liable to pay the rent thereof. If the municipality neglect and default in making the payment of rent it would be a neglect and default in the execution of U.P. Municipalities Act, 1916 and Section 326 of the said Act contemplates an act done or purported to be done in pursuance of execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act. The act or neglect of payment of rent is not contemplated or governed by any provision of LLP. Municipalities Act, 1916. 20. The rent was claimed for the use of the premises by the Municipality Board and the suit is to recover the arrears of rent, which the Municipality Board had failed to pay. The notice terminating the tenancy of the defendant was duly served and as it failed to comply with the same, it became liable to be evicted from the premises in question. The notice terminating the tenancy of the defendant was duly served and as it failed to comply with the same, it became liable to be evicted from the premises in question. A landlord can file a suit for eviction of a tenancy by seizing on him a notice under Section 106 of the Transfer of Property Act, which stipulates that no suit for ejectment can be filed against a tenant without serving the said notice. 21. Since the present suit is for the recovery of arrears of rent and possession, such a suit is obviously not covered by the provision of Section 326 of the Act in as much as it is not in respect of an act done or purported to be done in pursuance of execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act. 22. The case law relied upon by the learned counsel for appellant i.e. in case Devendra Kumar v. Nagar Palika Parishad Shamli and others, (supra) and Haji Ahmad Raza v. Municipal Board (supra) are not applicable to the facts and circumstances of the case. In both the cases, the provisions of Section 326 (1) has been considered and is has been held except the suit for injunction, notice is necessary. The question in the full Bench decision whether the suit for recovery of rent and ejectment is official has not been considered. 23. In view of the full Bench judgment in Zila Parishad (District Board) v. Smt. Shanti Deven and another (supra) which is fully applicable to the present case, I hold that the notice as contemplated under Section 326 of the Act is not at all necessary in a suit filed for recovery of arrears of rent and ejectment. The said suit is covered by the Transfer of Property Act, 1882. 24. The lower appellate Court has rightly held that no notice is required in a suit for recovery of arrears of rent and ejectment. 25. I do not find any illegality or infirmity in the orders impugned passed by the lower appellate Court. The suit filed by the plaintiff-respondent has rightly been decreed by the lower appellate Court. The present appeal has no force and is, accordingly, dismissed. No order as to costs. Ref: Civil Misc. 25. I do not find any illegality or infirmity in the orders impugned passed by the lower appellate Court. The suit filed by the plaintiff-respondent has rightly been decreed by the lower appellate Court. The present appeal has no force and is, accordingly, dismissed. No order as to costs. Ref: Civil Misc. Correction Application No. 2 of 2019 This is an application for correction in the judgment and order dated 5.12.2018, by which two corrections have been prayed for in the said judgment and order i.e. firstly the date of the judgment is sought to be corrected as 8.7.2019 in place of 5.12.2018 and secondly the name of the counsel is sought to be corrected as "J.S. Pandey" in place of" J.P. Pandey". I have heard the learned counsel for the appellant and perused the record. In paragraph No. 2 of the correction application, it has been averred that "due to inadvertence, judgment reserved was not mentioned in the order-sheet." The above statement contained in paragraph No. 2 of the application is factually incorrect and against the record as well. As a matter of fact, the present second appeal was before the Court as unlisted on 5.12.2018, on which date itself the matter was finally argued by the counsel for the parties and after dictation of the judgment to some extent, result of the case was also pronounced by the Court in open Court as dismissed, saying that remaining part of the judgment shall be completed in Chambers. Pursuant thereto, the Bench Secretary of the Court also on that very day i.e. 5.12.2018, entered the status of the case in the official website of the Court to the above effect. This being so, there was no question of mentioning in the order sheet as "judgment reserved". Consequently, no correction is needed in so far as the date of the judgment is concerned. As regards the second correction regarding name of the counsel, it is against the record that name of the counsel has not correctly been transcribed in the order. Therefore, the cause shown is sufficient to this extent. Accordingly, the name "Sri J.P. Pandey" occurring in the first sentence of the judgment, has been corrected today and shall now be read as "Sri J.S. Pandey". The application stands partly allowed with the above correction.