1. The plaintiff appears to have made the Secretary, instead of the President, of the Municipal Committee, defendant. When he asked the Court to make the President defendant, it refused to do so, and the Courts have held that, though the suit as against the Secretary was in time, it was not so against the President, even if his name had been substituted for that of the Secretary, as it would have been brought more than three months after the accrual of the cause of suit (Section 43, Act XV of 1873).
2. Notice of the action required by Section 43 was given in the Office of the Municipal Committee. It is true that the suit ought to have been instituted against the Committee in the name of the President, and that if Section 22 of the Limitation Act applied, and the name of the Secretary had been struck out and that of the President added, more than three months would have elapsed from the accrual of the cause of action. But the suit is not against the President personally, and Section 22, Act XV of 1877, seems to apply to new plaintiffs and defendants personally made parties to a suit after its institution rather than to cases like the present, where a Committee is sued through their officer, and a clerical error is corrected by the Court, and the substitution as defendant of the proper officer for the wrong one might be permitted. It was an error of form only and not an act of wilfulness, and the Committee who are really sued have had full notice of action. Moreover, the suits contemplated by the Act seem to be those claiming relief of a pecuniary character for some act done under the Act (XV of 1873) by the Committee, or any of their officers, or any other person acting under their directions, and for which damages can be recovered from them personally. The last paragraph of Section 43 bars all recovery if the person to whom the notice prescribed by the section has been given before the suit is brought tenders sufficient amends to the plaintiff.
3. The present suit is one to prove the right of plaintiff to build certain verandahs and a platform, which he avers were demolished by order of the Committee, and for which compensation is sought. It may be said that if notice to the Committee was required, it has been given, and that the Courts below should have substituted the name of the President in lieu of the Secretary and have tried the case on the merits. Substantially the requirements of the Act have been complied with, and the substitution of the name of the President for that of the Secretary is not affected by Section 22 of the Limitation Act, the suit against the Committee having practically been instituted within three months after the accrual of the cause of action.
4. On the other hand, if this is not one of the suits contemplated by Act XV of 1873, it is not at all affected by Section 43 of the Act, and would be certainly within time if the name of the President was substituted for that of the Secretary. Either way the substitution should be made and the case should be heard on the merits. We therefore decree the appeal, remand the case through the Judge to the first Court, for amendment of the plaint by the substitution in it of the President as provided by Section 40, Act XV of 1873, and for the disposal of the case on its merits. Costs to abide the result.