1. This is a second appeal by the Municipal Board of Mainpuri who was defendant 1 in the Court below. The plaintiff, Ajudhia Prasad, brought a suit for the recovery of a sum of Rs. 1,500, which he claimed as damages from the two defendants. The second defendant was the Secretary of State for India in Council. The allegations contained in the plaint were that the plaintiff was an advocate practising at Agra, that on 23rd March 1929, when the plaintiff was working at his place with his clients the plaintiff's horse and carriage were distrained by the defendants when as a matter of fact nothing was due from the plaintiff, and as a result of this wrongful action the plaintiff suffered damages. It was stated in the plaint that the plaintiff had served a notice claiming Rs. 5,250 as the amount of damages, but the plaintiff was advised to claim in the suit the moderate sum of Rs. 1,500 only as compensation for the wrongful distraint. None of the defendants admitted their liability, although they conceded that the horse and carriage of the plaintiff were wrongfully attached. The Municipal Board of Mainpuri alleged that it was through the negligence of either the Collector of Agra or the Collector of Mainpuri that the attachment was made of the plaintiff's property.
2. The facts appear to be that certain projection dues were due from one Khiali Ram minor. The plaintiff had married the sister of Khiali Ram, and on the date of the attachment, Khiali Ram was living with Pandit Ajudhia Prasad at Agra. The letter that was sent by the Municipal Board of Mainpuri to the District Magistrate of Mainpuri asking the latter to take action for the recovery of the dues was undoubtedly a misleading letter. It was said that the dues were to be realised from Pandit Ajudhia Prasad, Vakil, Mohalla Gurki Mandi, Agra guardian of Khiali Ram minor. The letter that was sent by the District Magistrate of Mainpuri to the District Magistrate of Agra, was to the effect that distress by seizure of movable property belonging to the said Pandit Ajudhia Prasad should be made for the realisation of a sum of Rs. 109-11-0. The Amin went to the spot and in spite of protest made by Pandit Ajudhia Prasad attached the latter's horse and carriage. Some correspondence followed between the plaintiff and the Municipal Board of Mainpuri, but the plaintiff had to serve a notice and had subsequently to file the present suit.
3. The Court of first instance decreed the plaintiff's suit for nominal damages in the sum of Rs. 5 against defendant 1. His suit was dismissed against defendant 2, and the costs of the second defendant were directed to be borne by the plaintiff. The plaintiff and defendant 1 were ordered to pay their own costs.
4. On appeal the learned Additional Subordinate Judge decreed the plaintiff's suit for Rs. 15 and varied the order of the Court of first instance regarding costs. He directed that the plaintiff should get the total costs incurred by him in the Court below from defendant 1, and that if the Secretary of State had recovered any costs from the plaintiff in pursuance of the decree of the trial Court then the plaintiff would be entitled to get it back from the Municipal Board of Mainpuri.
5. In second appeal by the Municipal Board of Mainpuri it is contended that the plaintiff's suit should have been dismissed against the appellant. From the very start the case of the Municipal Board has been that there was no negligence on their part and that the attachment was due to a mistake in the office of either the District Magistrate of Mainpuri or the District Magistrate of Agra. The letter that was sent by the Municipal Board was considered by the lower appellate Court, and it has arrived at a definite finding that there has been an interpolation in that letter subsequent to its despatch. The word 'minor' was not put down originally, but that it has been subsequently added. We are bound by this finding and in any event there can be no doubt that the letter of the Board was misleading. It did, even on the Board's showing mislead the District Magistrate of Mainpuri who directed the property of Pandit Ajudhia Prasad to be seized. The initial responsibility lay with the Board and it is not possible for them to shift that responsibility on the other defendant. The suit of-the plaintiff therefore on the merits was rightly decreed against the Municipal Board.
6. It was however contended by learned Counsel on behalf of the Board that under Section 175, U.P. Municipalities Act, a distress or sale made under the Act shall not be deemed unlawful on account of an error, defect or want of form in the bill, notice, warrant of distress, inventory or other proceeding relating thereto, and the argument was that the mere fact that a mistake crept into the letter sent by the Municipal Board to the District Magistrate of Mainpuri would not make the distress unlawful so as to enable the plaintiff to file a suit for damages. We think that the scope of this provision of law is different. If some amount is due from a person and a warrant is issued against him and there is a defect in the form of that warrant it will not be open to the defaulter to plead that the distress was unlawful, but it does not entitle the Board to say that it is not open even to a stranger to allege that the warrant was unlawful. It was then argued that the notice sent to the Board was bad and therefore the plaintiff is not entitled to maintain the suit. The argument is developed in the following manner : Section 326, provides that:
No suit shall be instituted against a Board...until the expiration of two months next after the notice in writing has been, in the case of a Board, left at its office...explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed....
7. It is said that in the present case the amount of compensation claimed in the notice was Rs. 5,250 and as the plaintiff in the suit limited the claim to Rs. 1,500 the suit should be dismissed. We are unable to accede to this contention. It is conceded that it would have been open to the plaintiff to amend his plaint after it had been filed and to reduce the amount of his claim, but what is contended is that if an excessive amount was claimed in the notice and if the plaintiff, being better advised, reduced his claim in the suit then the suit should be dismissed. The wording of the section does not warrant this interpretation and there seems to be no principle underlying the argument. It is said that the object of this provision of law is to enable the defendant to prepare his defence and, if so advised, to make amends. The mere fact that a larger amount was claimed in the notice does not in any way prejudice the person to whom the notice is sent in the preparation of his defence nor does it in any way prevent him from making proper amends. The second paragraph of the section makes it clear that if sufficient amends have been tendered to the plaintiff then the plaintiff will not be entitled to recover any sum in excess of the amount so tendered and shall pay all costs incurred by the defendant after such tender. It would therefore appear that even in the case of an excessive demand a penalty is imposed on the plaintiff only if sufficient amends have been tendered. There is no provision which authorises a Court to dismiss the suit if the amount claimed in the notice has been subsequently reduced at the time of the institution of the suit. In proper cases this factor might be taken into consideration in connexion with the order regarding costs. We are of the opinion that the plaintiff had the option to abandon a portion of his claim.
8. Finally, it was said that the order of the Court awarding full costs to the plaintiff against defendant 1 was not justified and that we should restore the order of the Court of first instance on this point. It appears that the action of the Municipal Board was improper from the very start. They sent a misleading letter to the District Magistrate and upon the findings of the lower appellate Court they have been guilty of tampering with a document. They did not agree to express any regret for their conduct, and we think that the lower appellate Court exercised a correct discretion in awarding full posts to the plaintiff against the Municipal Board. We think the view of the lower appellate Court is correct and we dismiss this appeal with costs.