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Ram NaraIn Vs. Municipal Board - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1938All540
AppellantRam Narain
RespondentMunicipal Board
Excerpt:
.....failed. they are in precisely similar terms and both are sections dealing with the protection of public authorities and their servants. that being so, the form of notice prescribed by that act was unnecessary and failure to give such a notice was no ground whatso-over for dismissing the..........the plaintiff alleged was due to him upon the contract. eventually the plaintiff brought this suit claiming a sum of rs. 3847 being this alleged sum of rs. 3019 alleged to be due to him under the contract together with certain security money and interest. the defendant board raised a number of defences and eventually the plaintiff's claim was dismissed by the court of first instance. on appeal to the learned civil judge the decision of the learned munsif was upheld upon the ground that the plaintiff had failed to serve a notice upon the defendant board as required by section 326(1), municipalities act, 1916. the only question considered by the learned civil judge was the question of limitation and upon that issue he found in favour of the plaintiff. no findings have been recorded by.....
Judgment:

Harries, J.

1. This is a plaintiff's second appeal against concurrent decrees of the Courts below dismissing his claim for certain moneys due under a contract entered into between him and the Municipal Board of Muttra. The plaintiff is a contractor and performed certain work for the defendant Board under a contract entered into between the parties. After the work was completed, a dispute arose and the defendant Board refused to pay a sum of Rs. 3019 which the plaintiff alleged was due to him upon the contract. Eventually the plaintiff brought this suit claiming a sum of Rs. 3847 being this alleged sum of Rs. 3019 alleged to be due to him under the contract together with certain security money and interest. The defendant Board raised a number of defences and eventually the plaintiff's claim was dismissed by the Court of first instance. On appeal to the learned Civil Judge the decision of the learned Munsif was upheld upon the ground that the plaintiff had failed to serve a notice upon the defendant Board as required by Section 326(1), Municipalities Act, 1916. The only question considered by the learned Civil Judge was the question of limitation and upon that issue he found in favour of the plaintiff. No findings have been recorded by the lower Appellate Court upon any of the other issues in the case. On behalf of the appellant it has been urged before us that the present suit is not a suit falling within Section 326(1), Municipalities Act, 1916, and that being so, no notice was necessary as required by the terms of that sub-section. Section 328(1), Municipalities Act, 1916, reads as follows:

No suit shall be instituted against a Board, or against, a member, officer or servant of a Board, in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has boon, in the case of a Board, left at its office, and in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.

2. Section 326(3) of the Act is in these terms:

No action such as is described in Sub-section (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 aoorual of the cause of action.

3. The plaintiff did serve a notice upon the defendant Board, but it is common ground that this notice did not contain the matters mentioned in Section 326(1) of the Act. The learned Civil Judge therefore held in consequence that as no notice had been given which complied with this sub-section, the suit failed. The question which we have to consider is whether a suit claiming the balance due for work done under a contract between the parties is a suit falling within Section 326(1), Municipalities Act, 1916. If it is, then a notice complying with that Act is essential, but if it is not, the action can proceed without any such notice. On behalf of the plaintiff-appellant a number of cases have been cited and in our judgment it has been consistently held of later years by this Court that Section 326 (1), Municipalities Act, 1916, can have no application to a suit such as the present one.

4. In the case in Municipal Board Agra v. Ram Kishen : AIR1933All785 , the very point which we have to decide was decided by a Bench of this Court. That Bench held that the period of limitation of six months in Section 326, Municipalities Act, did not apply to a suit on contract. That Section, it was said, was intended to cover wrongful acts done by a Municipal Board or by officers or servants of the Board. The claim in that case was a claim for the balance due under a contract to execute certain public works. The contractor had completed the work and had brought the suit for an alleged balance due to him. The Bench decided that the period of limitation for such a suit was not six months as provided by Section 326(3), Municipalities Act, 1916, but three years as provided by the Indian Limitation Act. In deciding that the period of limitation for such a suit was three years they had to decide whether the suit fell within Section 326(1), Municipalities Act, because Section 326(3) only prescribes a period of limitation of six months for suits described in Section 326(1) of the Act with two exceptions. Unless the case fell within Section 326(1) the period of limitation was three years and not six months. This case in terms holds that a claim such as the present claim is not one which falls within Section 326(1), Municipalities Act, 1916. If the claim does not fall within that sub-section, then no notice is required, because the notice is prescribed by that very sub-section. We can see no distinction whatsoever between the case in Municipal Board Agra v. Ram Kishen : AIR1933All785 and the present case.

5. The learned Civil Judge appears to have thought that the case in Municipal Board Agra v. Ram Kishen : AIR1933All785 had been doubted in Cantonment Board Allahabad v. Hazari Lal Ganga Prasad : AIR1934All436 . That was a Bench case decided by Sulaiman C.J. and Mukerji J. and we are wholly unable to agree with the learned Civil Judge that this case throws any doubt whatsoever upon the earlier case to which we have referred. In fact it appears fairly clear from the judgment of Sulaiman C.J. that he approved of the view which was expressed in Municipal Board Agra v. Ram Kishen : AIR1933All785 .

6. The matter is however in our judgment concluded by a Full Bench decision of this Court in District Board Allahabad v. Behari Lal : AIR1936All18 . That was a case under Section 192 (1), District Boards Act, but we have compared that Section with Section 326, Municipalities Act, and there is no difference whatsoever in the wording of the two Sections. They are in precisely similar terms and both are Sections dealing with the protection of public authorities and their servants. In the Full Bench case in District Board Allahabad v. Behari Lal : AIR1936All18 it was held that where a contractor had entered into a private contract with the District Board and had brought a suit against the District Board for refund of a deposit made by him as security and for recovery of money on account of extra work done by him under the orders of the overseer and engineer of the Board, which was not expressly sanctioned by a resolution of the Board, such a suit was not governed by Section 192(1), District Boards Act, but was governed by the ordinary three years' rule under the Limitation Act. It is to be observed that the claim in that case was a claim for security money and for a sum in respect of work alleged to have been done. The claims were similar to the claims in the case which we have now to decide. In deciding that the three years rule applied, the Full Bench held in terms that the suit before them was not a suit falling within Section 192(1), District Boards Act. As we have stated earlier, that Section of the District Boards Act is in the very same terms as Section 326, Municipalities Act, 1916, and If a claim for the balance due for work done against a District Board does not fall within Section 192(1), District Boards Act, it follows that a similar claim against a Municipal Board cannot fall within Section 326(1), Municipalities Act. The effect of this Full Bench case is that the present claim cannot possibly be regarded as a claim falling within Section 326(1) of the Act. That being so, the form of notice prescribed by that Act was unnecessary and failure to give such a notice was no ground whatso-over for dismissing the suit.

7. Mr. Pathak, who has appeared for the respondent Board, has urged strenuously that the present case is governed by two recent cases decided by their Lordships of the Privy Council, namely Bhagchand Dagdusa v. Secretary of State and Revati Mohan Das v. Jatindra Mohan Ghose . This latter case of the Privy Council is discussed at great length in the Full Bench case in District Board Allahabad v. Behari Lal : AIR1936All18 , to which we have referred, and further in arriving at their conclusion the Full Bench purport to apply the principles laid down in the Privy Council case to which we have referred. It has been contended by Mr. Pathak that we should follow these decisions of the Privy Council, but in our judgment we are bound by our own Full Bench case which has explained the effect of the Privy Council cases. We see no conflict between our Full Bench case and the Privy Council eases, but even if there was such a conflict we would be bound to follow the Full Bench case of our own Court which in terms purports to explain and limit the effect of the Privy Council decisions. Mr. Pathak's argument in effect amounts to this, that the Full Bench decision of this Court is not in accordance with law. As we have stated, we cannot accept such an argument and we must follow the Full Bench case of our own Court.

8. Certain earlier decisions of this Court which appear to be in favour of the respondent were cited before the learned Civil Judge, but it is clear that the later view of this Court is in favour of the plaintiff and, as we have stated, there is now a Full Bench decision of this Court which concludes the matter in the plaintiff's favour. The result therefore is that we are bound to hold that the claim out of which this suit arose was not one falling within the purview of Section 326(1), Municipalities Act, 1916, and that being so, no notice as prescribed by that sub-section was necessary. This appeal therefore must be allowed and the decree of the lower Courts set aside. As the lower Appellate Court has not considered the other issues in the case, we remand the case to that Court to be heard and determined according to law. The Court must consider the remaining issues and then pass such a decree as it deems proper. The costs of this appeal and of the previous proceedings in the Courts below will abide the event. The plaintiff is entitled to a refund of the court-fee.


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