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Shamabhai Mathurbhai Patel Vs. M.A. Panchal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR20
AppellantShamabhai Mathurbhai Patel
RespondentM.A. Panchal and anr.
Cases ReferredMohanlal Keshavlal Rana v. Baroda Muni
Excerpt:
- - emperor nor are there any prohibitory words like those that are contained in sections 196 and 197 of the criminal procedure code. [1978]1scr571 the supreme court held that leave granted post-facto by the court for prosecuting suit against receiver appointed by the court under order, 40, rule 1 of the civil procedure code is perfectly valid. equally clearly, prior permission of the court appointing the receiver is not a condition precedent to the enforcement of the cause of action. of course, failure to secure such leave till the end of the his may prove fatal. ..(i) with the like approval, institute and prosecute any suit......for rent of the premises let out to him by the corporation, was not incompetent for want of prior approval from the corporation before filing the suit. the appellant-defendant has joined the issue in the suit contending, inter alia, that under section 481(1)(h)(i) of the bombay provincial municipal corporations act, 1949, the authority can institute or prosecute suit only after obtaining the approval of the standing committee and since this was not obtained here prior to the filing of the suit, the suit was not maintainable.2. the above contention of the appellant-defendant did not find favour with the learned city civil judge, who, on consideration of the meaning of word, 'approval' in the relevant clause of section 481, and also on some authorities, held that this approval can.....
Judgment:

B.K. Mehta, J.

1. The original defendant by this appeal challenges the order of City Civil Judge, 4th Court, Ahmedabad, of July 16, 1977, holding that the suit filed by the respondents, who respectively were the Transport Manager of the Ahmedabad Municipal Transport Service and the Chairman of the Managing Committee of the said Transport Service, against the appellant-defendant for rent of the premises let out to him by the Corporation, was not incompetent for want of prior approval from the Corporation before filing the suit. The appellant-defendant has joined the issue in the suit contending, inter alia, that under Section 481(1)(h)(i) of the Bombay Provincial Municipal Corporations Act, 1949, the authority can institute or prosecute suit only after obtaining the approval of the Standing Committee and since this was not obtained here prior to the filing of the suit, the suit was not maintainable.

2. The above contention of the appellant-defendant did not find favour with the learned City Civil Judge, who, on consideration of the meaning of word, 'approval' in the relevant Clause of Section 481, and also on some authorities, held that this approval can be also post-facto.

3. I do not think that there are any justifying reasons for me to interfere with the order of the learned City Civil Judge on this preliminary issue in view of the decision of the Supreme Court in Dr. Sailendranath Sinha and Anr. v. Jasoda Dulal Adhikary and Anr. : 1959CriLJ242 where a question arose under the Companies Act, 1913 in the context of the powers of the Liquidator to institute or defend proceedings with the sanction of Court under Section 179 thereof. The Supreme Court, in that case, held that Section 179 deals with the powers of Liquidator to institute or defend proceedings with the sanction of Court. But if the Liquidator takes action without the direction of the Court, the action would not be illegal or invalid nor would it invalidate prosecution. Justice Kapur, speaking for the Court, referred with approval to the earlier decision of the Supreme Court in Jaswantrai Manilal v. State of Bombay : 1956CriLJ1116 where it was held as under:

In terms the section lays down the powers of the official liquidator. Such a liquidator has to function under the directions of the Court which is in charge of the liquidation proceedings. One of his powers is to institute prosecutions in the name and on behalf of the company under liquidation with the sanction of the Court. This section does not purport to impose any limitations on the powers of a criminal court to entertain a criminal prosecution launched in the ordinary course under the provisions of the Code of Criminal Procedure.

Justice Kapur, after referring with approval this passage from Jaswantrai Manila's case (supra) proceeded further to observe as under:

It was also pointed out in this judgment that Section 179 contains no words corresponding to the language of Drug Control Order, 1943 which was held to be a condition precedent for instituting prosecution in the case of Basdeo Agarwalla v. Emperor nor are there any prohibitory words like those that are contained in Sections 196 and 197 of the Criminal Procedure Code. In the former case no prosecution could be instituted without the previous sanction of the Provincial Government and the latter provides that 'no court shall take cognizance....' There are two cases decided by two Indian High Courts which support the submission of the respondents' counsel.

The Supreme Court thereafter approved the decision of Allahabad High Court in Emperor v. Bishan Sahai A.I.R. 1937 ll. 714 and Mrityunjoy Chakravarti v. Provat Kumar Pal : AIR1953Cal153

4. Recently in Civil Appeal No. 2224 of 1977, decided on 29th September, 1977, in the matter of Everest Coal Company (P) Ltd. v. State of Bihar and Ors. : [1978]1SCR571 the Supreme Court held that leave granted post-facto by the Court for prosecuting suit against receiver appointed by the Court under Order, 40, Rule 1 of the Civil Procedure Code is perfectly valid. Mr. Justice Krishna Iyer, speaking for the Court, held as under:

Equally clearly, prior permission of the Court appointing the Receiver is not a condition precedent to the enforcement of the cause of action. Nor it is so grave a vice that later leave sought and got before the decree has been passed will not purge it. If, before the suit terminates, the relevant Court is moved and permission to sue or to prosecute further is granted, the requirement of law is fulfilled. Of course, failure to secure such leave till the end of the his may prove fatal.

This, in short, is the law which has been stabilised by Indian decisions although inherited from principles of English law. In a sense Indian, English and even American jurisprudence lend support to this law....

The infirmity does not bear upon the jurisdiction of the trying Court or the cases of action. It is perepheral.

5. The relevant part of Section 481, so far as material for the purpose of this appeal reads as under: '481. (I) The Commissioner may-

(h) with the approval of the Standing Committee....

(i) with the like approval, institute and prosecute any suit....

The interpretation which is sought to be advanced on behalf of the appellant that approval is a condition precedent to the filing of the suit is not borne out on plain reading of the relevant clause. The interpretation, if accepted, would read more than what the Legislature has prescribed since the approval can be prior approval or post-facto approval and there is no warrant either explicit or inherent in the structure of the section to agree with the appellant that this approval should be as a matter of fact prior to the filing of the suit and, therefore, a condition precedent.

6. Since the aforesaid decision of the Supreme Court in Everest Coal Co. (P) Ltd. (supra) could not have been cited before N.H. Bhatt, J. in Second Appeal No. 140 of 1975 decided on July 20, 1976 Mohanlal Keshavlal Rana v. Baroda Muni, Corporation XIII G.L.T. 237 where the question of interpretation of Section 481(1)(i) did not arise directly before him, his observation that approval under Clause (i) is a condition precedent to the filing of the suit would not therefore be of any assistance to the cause of the appellant. 6. In the circumstances, therefore, this appeal fails and is dismissed. There should be no order as to costs


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