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Chhaganlal Kishoredas Vs. the Collector of Kaira - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 966 of 1909
Judge
Reported in(1910)12BOMLR825
AppellantChhaganlal Kishoredas
RespondentThe Collector of Kaira
DispositionAppeal dismissed
Excerpt:
.....of 1882), section 424- act v of 1908, section 80-notice -suit against government-act of government officers-bhagdari act (bom. act v of 1862), section 3-collector's declaration wider the act.;the collector of kaira, acting under section 3 of the bhagdari act 1862, declared that certain mortgages in favour of plaintiff were illegal and inoperative. the plaintiff- filed a suit to have it declared that the order was null and void. the notice, required by section 424 of the civil procedure code of 1882, was not given :-;that the notice was compulsory, for the declaration was a distinct act of the collector, done in the exercise of a statutory power and therefore in his official capacity.;the true test of an action for the purposes of section 424 of the civil procedure code of 1882 (which is..........the bhagdari act points to the period within which the suit must be presented; section 424 of the code limits the period after which the action must be filed. and the latter does not totally render the former abortive but leaves some period for the filing of the suit within the three months prescribed by the act. that may cause some inconvenience and hardship; but ' arguments ab in convenient must be used with great reserve when they are opposed to the grammar of a statute but are of great weight in determining between two constructions, each consistent with the grammar' : wentworth v. humphrey (1886) 11 a. c 619. laws are framed with an eye to cases which frequently occur and ' it is no reason when the words of a law do enough extend to an inconvenience seldom happening, that they.....
Judgment:

N.G. Chandavarkar, Kt., J.

1. There are no doubt dicta in some of the decisions of this Court, which detached from the context, would seem to lend support to the view that Section 424 of the old Code of Civil Procedure (Act XIV of 1882), reproduced as Section 80 of the new Code, applies only to actions in tort. But carefully examined, those decisions lay down that actions ex contract are excluded from the operation of the section. The true test of an action for the purposes of Section 424 is whether the - wrong complained of as having been done by the public officer sued amounts, first, to a distinct act on his part, and, secondly, whether that act purported to have been done by him in his official capacity: Bhau Balapa v. Nana ILR (1888) 13 Bom. 343. Both these elements must combine to render necessary the giving of notice under Section 424 as a condition precedent to suit.

2. In the present case they both exist. What is complained of is that in the exercise of the power conferred upon him by the provisions of Section 3 of the Bhagdari Act (Bombay Act V of 1862), the Collector has declared the plaintiff's mortgages illegal and inoperative, and that thereby he has enabled one of the mortgagor's heirs to take possession of the land mortgaged with possession to the plaintiff; and the Court is asked to set aside the Collector's order, containing the declaration, as null and void. The declaration is a distinct act of the Collector, done in the exercise of a statutory power and therefore in his official capacity.

3. But it is urged that Section 424 must be held not to apply to such a suit, brought under the Bhagdari Act, because, it is said, the Act is a complete piece of legislation by itself for its own purposes and is unaffected by the provisions of Section 424 of the Code. This argument is based upon the fact that, according to Section 3 of the Act, a suit to set aside the Collector's order as invalid must be brought within three months from the date of its execution, whereas, according to Section 424, no suit against a public officer can be brought ' until the expiration of two mouths next after notice in writing has been delivered to or left at the office of ' the officer. It is contended that the application of Section 424 to a suit under Section 3 of the Bhagdari Act has the inevitable result of cutting down the three months' period of limitation prescribed in the section to one month and that the legislature must not be presumed to have contemplated such a result and the taking away partly by means of the Code what it had given by means of the Act.

4. But the same may be urged in the case of every suit against' a public officer in respect of an act done in his official capacity. In the case of every wrong clone by him in his official capacity, which gives a cause of action and right to sue, the Limitation Act provides a period within which he must be sued; and thaf period is necessarily shortened by the period of two months in Section 424 of the Code of Civil Procedure. It does not, therefore, follow and it can hardly be contended that Section 424 does not apply. To hold that would be to render the provisions of that section practically nugatory.

5. We must presume that in enacting Section 424, the legislature was aware of the provisions of Section 3 of the Bhagdari Act, and that, had it intended to exclude that section from the operation of Section 424, it-would have used apt language to convey its meaning. The construction contended for by the appellant's pleader seeks to add words to Section 424, which are not in it. That is not construction but legislation.

6. No doubt if the two sections were mutually repugnant, that construction would be sound and sensible. But they are easily reconcilable. Section 3 of the Bhagdari Act points to the period within which the suit must be presented; section 424 of the Code limits the period after which the action must be filed. And the latter does not totally render the former abortive but leaves some period for the filing of the suit within the three months prescribed by the Act. That may cause some inconvenience and hardship; but ' arguments ab in convenient must be used with great reserve when they are opposed to the grammar of a statute but are of great weight in determining between two constructions, each consistent with the grammar' : Wentworth v. Humphrey (1886) 11 A. C 619. Laws are framed with an eye to cases which frequently occur and ' it is no reason when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom. ' Fenton v. Hampton (1858) 11 M.P.C. 347. If there is any hardship and even if it could be proved that a mistake has been made by the legislature in enacting the provisions of Section 424 in forget-fulness of Section 3 of the Bhagdari Act, ' it would not be competent for a Court of Law to disregard its enactments. If a mistake has been made, the legistature alone can correct it': Labrador Company v. The Queen [1893] A.C. 104.

7. For these reasons we are of opinion that the lower Courts have rightly held that Section 424 of Act XIV of 1882 applied to this suit, and that, as its provisions were not complied with by the plaintiff, the suit must be dismissed. The decree must, therefore, be confirmed with costs.


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