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Panchanan Chatterjee Vs. Babu Santosh Kumar Bose, Chairman, Burdwan Municipality - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in65Ind.Cas.105
AppellantPanchanan Chatterjee
RespondentBabu Santosh Kumar Bose, Chairman, Burdwan Municipality
Cases ReferredMunicipality of Parola v. Lakshmandas Supadhubhai
Excerpt:
bengal municipal act (iii of 1884), section 363, applicability of - suit against chairman for breach of contract--limitation. - .....before me. the suit was tried by a subordinate judge exercising small cause court powers. the learned subordinate judge, dealing somewhat briefly with the merits on which he found that the plaintiff had done no work for the period to which the claim related, dismissed the suit. this rule was issued on the defendant--the chairman of the municipality--to show cause why the decree should not be set aside.2. now, the principal ground on which the learned subordinate judge proceeded was the ground of limitation. he held that the suit was barred by limitation under the provisions of section 363 of the bengal municipal act (iii of 1884). that section lays down, in reference to the present purpose, that no suit shall be brought against the commissioners of any municipality or any of their.....
Judgment:

Richardson, J.

1. The petitioner was an inspecting Pundit of Pathshalas or primary schools under the Burdwan Municipality. He brought the suit to recover his pay for twenty-one months at Rs. 15 a month for the period from September 1916 to May 1918, the pay for the whole period amounting to Rs. 315. He also claimed a sum of Rs. 84-5 0 which, he alleged, was in deposit on his account in the Provident Fund. The defence set up by the defendant was that the petitioner's pay had been stopped because he had not worked for the period for which the pay was claimed. I am informed that no separate defence was made in respect of the sum in the Provident Fund, but the written statement has not been placed before me. The suit was tried by a Subordinate Judge exercising Small Cause Court powers. The learned Subordinate Judge, dealing somewhat briefly with the merits on which he found that the plaintiff had done no work for the period to which the claim related, dismissed the suit. This Rule was issued on the defendant--the Chairman of the Municipality--to show cause why the decree should not be set aside.

2. Now, the principal ground on which the learned Subordinate Judge proceeded was the ground of limitation. He held that the suit was barred by limitation under the provisions of Section 363 of the Bengal Municipal Act (III of 1884). That section lays down, in reference to the present purpose, that no suit shall be brought against the Commissioners of any Municipality or any of their officers 'for anything done under this Act' until the expiration of one month nest after notice in writing has been delivered or left at the office of such Commissioners, It further lays down that every such action--meaning every suit brought against the Commissioners for anything done under the Act--shall be commenced within three months next after the accrual of the cause of action and not afterwards. In the case of Chunder Sikhur Bundopadhya v. Obhoy Churn Bagchi 6 C. 8 (F.B.); 3 Ind Dec. (N.S.) 6 it was held by a Full Bench of this Court that Section 87 of Bengal Act III of 1864--the provisions of which were similar to those of the Act of 1864-was applicable only in those cases where the plaintiff claimed damages or compensation for some wrongful act committed by the Commissioners or their officers in the exercise or honestly supposed exercise of their statutory powers. In that case, the suit was a suit for the recovery of land; but the principle laid down is applicable to the present case. Then there is the case of Shudhangshu Bhusan Roy Chowdhury v. Beioy Kali Roy Chowdhury 3 C.L.J. 376. That was a case under the present Act, in which the plaintiff sued for a declaration that a tax imposed upon him had been improperly assessed. The learned Judges followed--though apparently with some reluctance--the construction put upon the section by the Full Bench. A similar view of a similar provision was taken by the Madras High Court in the case of Mayandi v. Mc Quhae 2 M 124 : 3 Ind. Jur. 309 : 1 Ind. Dec. (N.S.) 358, where it was held that a suit for breach of contract was not a suit 'for a thing done under the Act.' [See also Municipality of Parola v. Lakshmandas Supadhubhai 25 B. 142, 2 Bom. L.R. 857.

3. In England the Public Authorities Protection Act of 1893 applies to any action, prosecution or other proceeding against any person for any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, duty, or authority and provides that the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, It has been held that that provision does not apply to such actions as an action for wrongful dismissal founded on breach of contract of service (Lightwood's Time Limit on actions, page 389).

4. In my opinion it is clear that the present is not a case to which Section 363 of the Bengal Municipal Act has any application. The suit is for breach of contract and not for anything done under the Act The learned Subordinate Judge was, therefore, in error in holding that the suit was barred by limitation. As to the merits the learned Subordinate Judge, in view, no doubt, of the opinion which he held on the question of limitation, did not deal with them as completely as he might have done. That being so, the decree complained of must be set aside and the suit must be remanded to the Court below to be re-tried with reference to the observations made in this judgment. Costs of this Rule--the hearing fee being assessed at four gold mohurs--will abide the result.


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