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Munir Khan Vs. Municipal Board - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All365a; 122Ind.Cas.742
AppellantMunir Khan
RespondentMunicipal Board
Excerpt:
- - clause (4) clearly indicate that the relief claimed under clause (1) may be one for an injunction......contractor under a written agreement, dated 9th may 1923, between the plaintiff and the municipal board of allahabad. under this instrument the plaintiff agreed to remove rubbish from certain parts within the municipal area and deposit the same in the trenching ground. the contract commenced on 1st may 1923, and terminated on 31st march 1924. para. 3 of the agreement provided as follows:the board hereby covenants to pay the said contractor the sum of rs. 325 only per month for the supply of thirteen animals and eleven carts and drivers every night for the work of collecting all night soil accumulating within the area of ward five, west of railway line, removing the same to such place or places as the chairman, public health of the board, shall appoint and such payment shall.....
Judgment:

Sen, J.

1. This is an appeal by the plaintiff from the decree of the Additional Subordinate Judge of Allahabad, dated 8th November 1926, reversing the decree passed by the Munsiff, West, Allahabad, dated 31st May 1926. Plaintiff was a conservancy contractor under a written agreement, dated 9th May 1923, between the plaintiff and the Municipal Board of Allahabad. Under this instrument the plaintiff agreed to remove rubbish from certain parts within the municipal area and deposit the same in the trenching ground. The contract commenced on 1st May 1923, and terminated on 31st March 1924. Para. 3 of the agreement provided as follows:

The Board hereby covenants to pay the said contractor the sum of Rs. 325 only per month for the supply of thirteen animals and eleven carts and drivers every night for the work of collecting all night soil accumulating within the area of ward Five, West of Railway line, removing the same to such place or places as the Chairman, Public Health of the Board, shall appoint and such payment shall not be liable to any diminution or enhancement by reason of any variation in the number of animals, carts and drivers employed or in the amount of work required to be done by the contractor.

2. The plaintiff alleged that he performed his part of the contract but that the defendant unlawfully and in violation of the terms of the agreement withheld the payment of Rs. 446. The plaintiff sent a registered notice on 27th July 1925. Reply was received by a letter dated 6th October 1925, that the account was being checked and that a final reply would be given within fifteen days. A post card was received dated 17th August 1925, that the notice sent by the plaintiff had been received and was under consideration.

3. The suit which has given rise to this appeal was instituted on 15th January 1926, for recovery of Rs. 446 being the total of the amount withheld by the defendant month after month from the stipulated amount of Rs. 325 payable to the plaintiff under the contract. Rs. 93 was claimed as interest by way of compensation at the rate of rupee one per cent per mensem.

4. The Municipal Board contested the suit on the ground that the notice given by the plaintiff was not in due form, that the plaintiff had not performed the contract by the full number of cattle, that the work itself had not been completely performed, that the Municipal Board was justified in cutting down the amount of remuneration which had been originally agreed upon, that the plaintiff was not entitled to any interest and that the claim was time barred.

5. The Court of first instance repelled the plea as to the legality of the notice as also the plea as to limitation. It held however that:

the plaintiff has certainly been wanting in his duty and has been negligent in not seeing that each cart reached the trenching ground.

6. Curiously enough the Court fined the plaintiff Rs. 100 for shortage of work and granted a decree for Rs. 327 with proportionate costs.

7. The lower appellate Court reversed the decree of the trial Court on the ground of limitation and dismissed the plaintiff's suit.

8. The point which emerges for trial is one of limitation and is founded upon the construction of Section 326, United Provinces Municipalities Act (Act 2 of 1916). The statute in question is a self-contained Act and provides for a special period of limitation for suits against the Municipal Board or against a member, officer or servant of the Municipal Board in respect of an act done or purporting to have been done in its or his official capacity.

9. Clause (1) Section 326, insists upon the giving of a notice in writing as a condition precedent to the institution of a suit. Where the suit is sought to be directed against the Municipal Board or against its member, officer or servant in respect of an act done or purporting to have bean done under the colour of office the rule as to notice is inexorable and is not to be departed from in view of the subject matter in dispute or the nature of the relief claimed.

10. Clause (3) which prescribes a special period of limitation runs as follows:

No action such as is described in Sub-clause (1) shall unless it is an action for the recovery of immovable property or for a declaration of title thereto be commenced otherwise than within six months next after the accrual of the cause of action.

11. A plaintiff agrieved by an act of the Municipal Board or of its member, officer or servant is bound to institute a suit within six months next after the accrual of the cause of action in all suits referred to in Clause (1) excepting where the claim is for the recovery of immovable property or for a declaration of title thereto.

12. The plaintiff contends that the scope of Clause (1) is confined to suits for compensation for wrongful acts on the part of the Municipal Board or of its member, officer or servant and that the words ' act done,' should be construed as wrongful or tortious act sounding in damages. An examination of the language of Clause 1 does not lend itself to the interpretation which is sought to be put upon it. The clause provides that the notice must explicitly state the cause of action, the nature of the relief sought and the amount of compensation claimed. The scope of the suits has not been confined to suits for damages founded upon tort. No limitation has been put either as to the nature of the cause of action or as to the nature of the relief claimed. Clause (4) clearly indicate that the relief claimed under Clause (1) may be one for an injunction. The only suits which for purposes of limitation have been excepted from the broad scope of suits referred to in Clause (1) are suits for recovery of immovable property or for a declaration of title thereto. The words 'cause of action,' are of sufficient amplitude to cover cases involving the infraction of an absolute right or of a right arising out of a contract and also of a right to compensation flowing from tort. The words 'amount of compensation claimed' do not narrow down the denotation of either the cause of action or 'the nature of the relief sought' to mere suits for damages founded upon tort and evidently mean no more than this that where the plaintiff sues for damages he must specify the amount of compensation.

13. The claim of the plaintiff in substance was based upon a breach of contract on the part of the Municipal Board through its Health Officer. That officer instead of paying the entire remuneration as had been agreed upon under the written contract, dated 9th May 1923, cut down the monthly remuneration by certain sums. The plaintiff's cause of action therefore arose every month when the payment fell due and deductions were wrongfully made out of the sum then due. The contract spent its force on 31st March 1924. The plaint does not say so but presumably the last payment was withheld sometime about April 1924. The suit was not instituted till 15th January 1926 when more than six months had expired from the date of each deduction. We are of opinion that the deductions made by the Municipal Board month after month amounted to a refusal to pay the amounts so deducted and that each of these occasions afforded the plaintiff a separate cause of action. Ex facie the suit is governed by Section 326, United Provinces Municipalities Act and is barred by time.

14. Our attention was drawn to a document and it was contended that this amounted to an acknowledgment of liability in writing and extended the period of limitation. We have examined this document and are of opinion that the Municipal Board has carefully guarded itself against making any acknowledgment of claim. The result is that the appeal fails and is dismissed with costs.


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