G. N. Sabhahit, J.

(1) THIS appeal by Chenna Reddy, son of Hanmanth reddy, Sarpanch, Chimmanchod. Village Panchayat, Taluk Chincholi, Dist. Gulbarga, (defendant), is directed against the judgment and de cree dt. 11-12-1975 passed by the Civil judge, Gulburga, in RA No. 172 of 1975, on his file, allowing the appeal, on reversing the judgment and decree dated 5-9-1975 passed by the Munsiff, Chincholi, in OS. No. 60 of 1974, on his file, dismissing the suit of the plaintiff for injunction.

(2) THE plaintiff instituted the suit against the present appellant, Sarpanch of the Chimmanchod Village Panchayat, for injunction. The plaintiff, according to him, is the owner in possession of the open space, measuring 78 north to south and 14 cast to west. The plaintiff purchased the suit open space from his brother Nagappa. OH 29-10-1971. After purchasing the- said space, he applied for permission to the village panchayat to construct a building and submitted his application on 4-11-1971 and 4-12-1971. The Secretary of the panchayat received those applications and acknowledged the same. Since the dates of the applications the Panchayat did not take any action in that regard. The plaintiff waited for more than two months and not, receiving any reply from the Panchayat, he began to construct the house in the open space assuming that, permission was granted under S. 53 of the Karnataka Village panchayats and Local Boards Act, 1959 on 10-10-1974, however, when the plaintiff was constructing the house, for defendant sent his peon to stop the were hence, the plaintiff was compelled to institute the suit against the defendant.

(3) THE defendant resisted the suit. He contended that the plaintiff was not the owner of the open space. He further contended that the plaintiff was called upon to produce the documents; but, he refused to receive the notice. He denied that no order was passed by the Panchayat within two months. Hence, he resisted the suit. He also contended that the suit was not tenable against the Panchayat, in the way it was instituted.

(4) THE trial Court dismissed the suit of the plaintiff holding that the suit against the Sarpanch was not a suit against the panchayat. Aggrieved by the said judgment and decree, the plaintiff went up in appeal before the Civil judge, Gulbarga, in R. A. No. 172 of 1975, on his file.

(5) AN interlocutory application was instituted before the learned Civil judge during the pendency of the appeal at I. A. No. II under Order I, Rule 10 (2) cpc for correcting the name of the defendant mentioned in the plaint. It was prayed before him that for the reasons stated in the affidavit, the application under Order I, Rule 10 (2) CPC. for correcting the misdescription of the defendant by amendment should be allowed. It was mentioned in the affidavit that instead of showing the name of the Sarpanch, the name of the secretary should be incorporated as representing the village panchayat.

(6) THE learned Civil Judge, in the course of his judgment, allowed that application and allowed the appeal, reversing the judgment and decree of the trial Court. He decreed the suit for injunction. Aggrieved by the same, the present appeal is instituted before this court by the defendant.

(7) IT may be mentioned that neither in the plaint nor in the judgment, the alleged misdescription is corrected.

(8) THE learned Advocate appearing for the appellant strenuously urged before me that the suit is rot instituted against the Panchayat at all. It was instituted against the present appellant, namely, Chenna Reddy giving his designation as the Sarpanch of the Village panchayat The village Panchayat was never made the defendant. Therefore, there was no question of misdescription in the suit. It was a suit instituted against a wrong person and, hence, he sub mitted that the learned Civil Judge entrely misconceived the scope of the application and he was not justified in allowing the alleged misdescription to be corrected. In that view, he submitted that the judgment and decree of the learned Civil Judge should be set aside and those of the learned Munsiff should be sustained and restored.

(9) AS against that, the learned advocate appearing for the respondent/ plaintiff argued supporting the judgment and decree passed by the learned Civil judge as also the order passed by him on i. A. No. 11.

(10) THE sole point, therefore, that arises for my consideration in this appeal is: whether the learned Civil Judge was justified in passing the order under order 1, Rule 10 (2) CPC, on I. A. No. II and in allowing the appeal

(11) S. 6 of the Karnataka Village panchayats and Local Boards Act, 1959, speaks of incorporation of Panchayat. It reads :"every Panchayat shall be a body corporate by the name of the village Panchayat of. . . . . . . . . . . . or town Panchayat of. . . . . . . . . . . . as the case, may be, and shall have perpetual succession and a common seal, and subject to such restrictions as are imposed by or under this or any other enactment, shall be vested with the capacity of suing or being sued in its corporate name, of acquiring, holding and transferring property. moveable or immoveable, whether without or within the limits of the area over which it has authority, of entering into contracts and of doing all things necessary, proper or expedient for the purposes for which it is constituted".

(12) THUS, it becomes clear that the panchayat is a body incorporated and it is a legal person. It can sue and be sued. It shall be represented by a living agent, namely, the Secretary.

(13) RULE 16 of the Mysore Panchayats Secretaries Powers and Duties Rules, 1961, states that it is the secretary who can defend the suit or a criminal action against the Panchayat.

(14) IN the instant case, the defendant, in the plaint, is described thus :"channa Reddy s/o Hanumantha reddy, Sarpanch of Chimmanchod village Hanchayat. Tq. Chincholi, District Gulbarga".

(15) THUS, it is obvious that the suit was against Channa Reddy, who was described as sarpanch of the Panchayat. It can, by no stretch of inference, be said that the suit was against the legal person, namely, the Village Panchayat chimmanchod. If it were the intention of the plaintiff to institute the suit against the Panchayat, the defendant should have been the Village Panchayat of Chimmanchod, represented by its secretary. Such is not the defendant. That being so, it is obvious that it was not a mere case of misdescription of the defendant but it was a case of bringing the suit against a wrong defendant altogether.

(16) THIS Court, in the case, Village panchayat Committee we Harihal v. Chanappa reddy (1), has ruled that a suit against village Panchayat, represented by its hairman, is not maintainable.

(17) ON the facts of the present case as stated above, it is something more and something worse. It is not even a suit instituted against the Panchayat represented by its Sarpanch. But, it is merely a suit against Channareddy, who is described as sarpanch of Chimmanchod village Panchayat. Therefore it is not a case of misdescription. But, it is a case where the defendant is not the Village Panchayat at all.

(18) IN the case Group Village Panchayat committee, Harlapur v. Ramangouda ananthagouda Patil (2), a Division bench of this Court, has ruled that there is no provision in the Karnataka Village panchayats and Local Boards Act, 1959, and the rules there under, enabling institution of proceedings by the Chairman of the Panchayat.

(19) HENCE, I am constrained to hold that the suit as originally instituted is not against the Panchayat at all. It is one thing to say that the suit is not against the Panchayat and it is quite another thing to say that there was misdescription while describing the Panchayat. If, for example, the Panchayat in its incorporated name was made the defendant and then, instead of representing it by its Secretary, the name of the secretary was mentioned without showing him as the Secretary, that was a case of misdescription. Here, the case is not one of misdescription. Therefore, the learned Civil Judge was entirely in error in thinking that an application to substitute the defendant was maintainable under Order I, Rule 10 (2) CPC. He could not do it. The order passed by him is illegal and is liable to be set aside and I set aside the same.

(20) THERE is one more reason why the alleged order is illegal. If the suit was not against the panchayat, there was no opportunity to the panchayat in the legal sense to contest the suit If at all, a new suit should have been instituted or the plaint should have been got amended and hearing should have commenced de novo. That is not done in this case. There is no amendment of the plaint from its inception as such. What is purported to be done is the correction of misdescription, which is totally misconceived, as explained above. Hence, the proceeding would not bind the Penchayat.

(21) THERE is absolutely no cause of action against Mr. Channareddy in his personal capacity. Hence, the suit was rightly dismissed by the trial Court and the first appellate Court committed a mistake by allowing the name of the defendant to be changed under the guise of correcting the misdescription and allowing the appeal and decreeing the suit. The judgment and decree of the First appellate Court, therefore, cannot be sustained.

(22) IN the result the appeal is allowed. The judgment and decree of the first Appellate Court are hereby set aside and those of the trial court are sustained and restored. The suit of the plaintiff is directed to be dismissed. On the peculiar facts of this case, i direct the parties to bear their respective costs throughout.