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Shridhar Mahadeo Rasal Vs. Godulal Jethmal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 12 of 1938
Judge
Reported inAIR1940Bom20; (1939)41BOMLR1223
AppellantShridhar Mahadeo Rasal
RespondentGodulal Jethmal
DispositionAppeal allowed
Excerpt:
.....june 3, 1933, they filed another suit against the defendant to recover compensation or damage for illegal distraint of their property. the defendant contended that the second suit was barred by order ii, rule 2, of the civil procedure code, 1908, that the defendant's action was protected under section 6 of the bombay revenue jurisdiction act, 1876, and that the suit was also barred by limitation under article 28 of the indian limitation act, 1908:-;(1) that order ii, rule 2, of the civil procedure code, presented no bar to the suit, because the act of the defendant complained of gave rise to two different claims for the loss sustained, first, the claim to recover back the amount with the consequential loss of interest due thereon, and, secondly, the claim fox loss of reputation and..........the plaintiffs instituted this action on june 3, 1935, to recover compensation or damage for illegal distraint of their property by the mamlatdar of taloda through the circle inspector on may 20, 1933. it was alleged that a sum of rs. 127-2-9, which was due as arrear of land revenue from certain bhils who were holders of some lands, was recovered under a warrant issued by the mamlatdar 'out of the amount lying in the plaintiffs' cupboard'. the plaintiffs alleged that the mamlatdar's act was ultra vires and without jurisdiction, and that their reputation had suffered in consequence.2. among the defences raised to this action the first was that the suit was not maintainable inasmuch as on june 12, 1934, the plaintiffs had instituted another action to recover the sum removed from them.....
Judgment:

Wassoodew, J.

1. This is a second appeal from a decision of the District Judge of West Khandesh. The plaintiffs instituted this action on June 3, 1935, to recover compensation or damage for illegal distraint of their property by the Mamlatdar of Taloda through the Circle Inspector on May 20, 1933. It was alleged that a sum of Rs. 127-2-9, which was due as arrear of land revenue from certain Bhils who were holders of some lands, was recovered under a warrant issued by the Mamlatdar 'out of the amount lying in the plaintiffs' cupboard'. The plaintiffs alleged that the Mamlatdar's act was ultra vires and without jurisdiction, and that their reputation had suffered in consequence.

2. Among the defences raised to this action the first was that the suit was not maintainable inasmuch as on June 12, 1934, the plaintiffs had instituted another action to recover the sum removed from them under the alleged illegal distraint with interest in which this claim could have been added, and that the failure to do so was fatal to this action under Order II, Rule 2, of the Civil Procedure Code. It was also contended as a second ground of defence that inasmuch as the Mamlatdar was acting in pursuance of law his action was protected under Section 6 of the Bombay Revenue Jurisdiction Act (X of 1876). Lastly, it was urged that the claim made more than one year after the cause of action accrued to the plaintiffs was barred under Article 28 of the Indian Limitation Act. All these contentions were disallowed in the Courts below which have held that Rs. 200 is the proper amount of damage sustained by the plaintiffs as against the claim of Rs. 2,001 made by them. Consequently that amount with proportionate costs was decreed in the Courts below. Against that decree the Mamlatdar's heirs have filed this appeal.

3. The same contentions as in the Courts below have been raised in this appeal on the appellants' behalf. It seems to me that the first two contentions cannot be sustained. But the appeal ought to succeed on the question of limitation.

4. I shall briefly deal with the contention based upon the provisions of Order II, Rule 2, of the Civil Procedure Code, as well as the defence under Section 6 of the Bombay Revenue Jurisdiction Act. It is not denied that the action of the Mamlatdar was illegal and ultra vires and that by reason of that act the sum of Rs. 127-2-9 was illegally seized and forcibly removed from the plaintiffs' possession on May 20, 1933. That was a transaction which gave rise to two different claims for the loss sustained, first, the claim to recover back the amount with the consequential loss of interest due thereon, and, secondly, the claim for loss of reputation and business. In my opinion, these claims are founded on different causes of action although they arise from the same transaction and therefore they need not have been included in the same action [see Payana Reena Saminathan v. Pana Lana Palaniappa (1913) L.R. 41 IndAp 142 The test would be whether they could be supported by different kinds of evidence. Inasmuch as the answer must be clearly in the affirmative, the plea founded on the provisions of Order II, Rule 2, cannot be sustained.

5. With regard to Section 6 of the Bombay Revenue Jurisdiction Act, it cannot be said that the Mamlatdar's act was bona fide in pursuance of the provisions of any law for the time being in force. The order passed by him for attachment was directed expressly against the property of the plaintiffs who were neither occupants of the land for which the arrear of revenue was due, nor in any sense defaulters in respect to the payment of land revenue. The punchnama made by the Revenue Officers at the time of the attachment of the property confirms the belief that they were executing distress against the property of the plaintiffs on the supposition that either they had agreed to pay the dues of the defaulters or that notwithstanding the sale of the latter's property to the plaintiffs that property was still attachable in the hands of the purchasers. Both these suppositions were not warranted by the facts, and the action of the Mamlatdar was ab initio illegal and ultra vires. No bona fides could be claimed in respect of such an act, and I think the defence founded upon the provisions of Section 6 of the Bombay Revenue Jurisdiction Act cannot be allowed to prevail.

6. Then there remains the plea of limitation. The contention of the appellants is that the article applicable to this case is Article 28 of the Indian Limitation Act. That article provides the period of limitation 'for a suit for compensation for an illegal, irregular or excessive distress.' The period provided is one year from the date of distress. I have very little doubt in holding that the claim for illegal distress in the present case would fall within that article. It is a specific article dealing precisely with a claim to compensation for illegal distress or distraint, for distress has the same meaning as distraint [see Jagatjiban Nando Roy v. Sarat Chandra Ghosh (1902) 7 C.W.N. 728 The illegal distress contemplated by the provisions of that article might be, in my opinion, the result of various causes. The seizure of the property might be illegal either because the party from whose possession it was seized was not liable or because the property on account of its character was itself exempt from seizure. Again the person effecting seizure or the Officer under whose authority the distraint is effected might have no power or jurisdiction to effect the seizure or the distraint itself may not be in conformity with the provisions of the statute under which the act is purported to be done. As instances one may refer to the powers of distraint conferred by special Acts on individuals or Local Boards and Corporations. The distrainer under those powers has to conform to the provisions of the statute otherwise the distraint will be illegal. It is difficult to accede to the argument that seizure due to want of jurisdiction is not contemplated by the provisions of Article 28. It seems to me that such a seizure would be tantamount to an illegal distraint if the power is illegally exercised or the person exercising the power has acted under an erroneous belief that he had the power. The competing article which was applied in the lower Courts was Article 36. It is a very wide and general article governing cases of compensation for any act of misfeasance or malfeasance or nonfeasance independently of contract and not specifically provided for. In accordance with general principles where the statute by an express article deals with a specific case of this nature, that article must prevail over the general provisions [see Municipal Board of Mussoorie v. H.B. Goodall I.L.R. (1904) All. 482]. I, therefore, hold that inasmuch as the suit was instituted more than two years after the illegal distraint, the claim to compensation is barred. Consequently I allow this appeal and dismiss the suit with costs throughout.


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