P.N. Goel, J.
1. This is a defendant's appeal against the judgment and decree dated 28-5-1968 passed by Second Temporary Civil and Sessions Judge, Aligarh.
2. Facts of this case are in a narrow compass. Smt. Janki Devi was inthe employ of the appellant, Municipal Board, Aligarh as a maid servant. By notice dated 19-9-1958 her services were terminated with effect from 1-11-1958: Smt. Janki Devi filed a suit for declaration that the order dated 19-9-1958 terminating her services was illegal. Her suit was decreed. Consequently the appellant reinstated her on 16-2-1962. Smt. Janki Devi died on 7-4-1962. Thereafter on 1-1-1963 Smt Chandrawati, respondent heir of Smt. Janki Devi brought a suit for recovery of arrears of pay of Smt. Janki Devi for the period April, 1960 to 7th April. 1962.
3. The suit was contested by the appellant mainly on the ground that it was barred by time as it was not filed within 6 months as provided under Section 326 of the U. P. Municipalities Act, 1916. This contention found favour with the trial court and as such the suit was dismissed on 16-10-1967. During the course of the judgment the trial court also expressed the view that the suit was barred by Order 2, Rule 2, C. P. C. because no claim for arrears of pay was made by Smt Janki Devi in her earlier suit for declaration that the order dated 19-9-1958 terminating her services was illegal. In appeal the Second Temporary Civil and Sessions Judge did not agree with the view taken by the trial court and, therefore, decreed the respondent's suit.
4. Sri R.P. Goyal, learned counsel for the appellant urged that the present suit was barred by Order 2, Rule 2. C. P. C. because no claim for pay was preferred by Smt. Janki Devi in the earlier suit. As the order of termination of services was a positive act on behalf of the Board and this order entailed non-payment of salary and as such Section 326 of the U. P. Municipalities Act was applicable and that therefore, the suit having been filed beyond 6 months of the accrual of cause of action was barred by time under Section 326 (2) of the Municipalities Act.
5. Both the above contentions of the learned counsel are devoid of force. In the case of the State of M. P. v. State of Maharashtra, AIR 1977 SC 1466, the plea of the bar of Order 2, Rule 2 was repelled on the ground that the cause of action for asuit for arrears of salary accrued due on the date of reinstatement. In the instant case Smt. Janki Devi was reinstated on 16-2-1962. It is thereafter that Smt. Janki Devi could claim her arrears of pay. It would not be incorrect to say that after having reinstated Smt. Janki Devi, the duty was of the Board to pay up her arrears of pay. The Board remained silent. Therefore, the respondent had to file the suit on 1-1-1963. It is thus patent that on account of the omission of the appellant to give the salary of Smt Janki Devi that the respondent was obliged to file the suit. In other words because of the non-feasance of the Municipal Board the present suit came into exsitence.
6. Sub-section (3) of Section 326 of the Municipalities Act relates to suits which are covered by Sub-section (1) of the said section. Sub-section (1) clearly envisages suits in respect of positive acts done by the Board or its servants, This sub-section envisages acts of misfeasance and not acts of non-feasance. In this aspect of the matter the appellant cannot rightly urge the limitation provided in Sub-section (3) of Section 326. The contention of Sri Rule P. Goyal that because Smt. Janki Devi's services were terminated so she was not given pay is not correct. So long as the order of termination of services stood, Smt, Janki Devi could not have preferred any claim for her pay. The claim for pay arose only when the order of termination was set aside by the court. Further her claim for arrears of pay arose when she was actually reinstated by the appellant.
7. The result of what has been said above is that this appeal is without force. It is dismissed with costs.