1. This appeal is on behalf of the defendants, and arises out of a suit for damages. The defendants are the Commissioners of the Pabna Municipality (defendant 1) and its Vice-Chairman (defendant 2). The plaintiff Laid his claim at Rs. 50, and the act for which he claimed this compensation was the cutting down of three simul trees standing in the plaintiffs' land. The suit was resisted on a variety of grounds. On the merits it was alleged that the municipality or any of its officers had nothing to do with the cutting down of the trees but that this was the work of some enthusiastic volunteers of a body known as the Anti Malaria Society who were operating in the area at the time The defendants further claimed statutory protection for the act complained of. It appears that sometime in the month of August 1937 the municipality had actually served a notice on the plaintiffs, calling upon them to clear the jungles and other noxious undergrowth and vegetation from their lands on the ground that they were injurious to health and offensive to the neighbourhood. There was no specific requisition by this notice for the cutting down of the three simul trees. Further objections to the suit were taken by the defendants based on the provisions of Section 535, Bengal Municipal Act (Act 15 of 1932). It was conceded that a notice of suit had been given under this section, but the contention was that the notice was not in proper form and that it had not been proved. It was further pleaded that the suit was out of time, not having been instituted* within six months next after the accrual of the alleged cause of action as required by Section 535(2). The learned Munsif expressly held in favour of the defendants on the question of notice and of limitation. On the merits also, the findings were generally in their favour, and in the result he dismissed the suit. On the question of quantum of damages, however, he recorded a finding to the effect that if the plaintiffs were otherwise entitled to succeed, they could recover damages to the extent of Rs. 30. On appeal the learned Subordinate Judge reversed the decision of the learned Munsif both on the question of the notice of suit and on that of limitation. As regards the merits, he stated that the cutting down of the trees had been admitted by the defendants, and accepting on that basis the further findings of the trial Court, which were not also challenged before him by the defendants, to the effect that there was no legal justification for the cutting down of the trees and that this had not been done with the consent of anyone on behalf of the plaintiffs, as well as the finding as to the quantum of damages, he made a decree in favour of the plaintiffs for a sum of Rs. 30 with proportionate costs. It is against this decision that the defendants have preferred the present appeal.
2. The learned advocate for the appellants has practically argued all the points which his clients had unsuccessfully raised in the Court below. He further took the point that the appeal to the lower appellate Court was without jurisdiction, and it is just as well that I should dispose of this question at once. The contention was that the suit was of & Small Cause Court nature and that, therefore, no appeal lay against the decision of the trial Court, The learned advocate realised that if he was right, he would be shutting himself out from his own appeal to this Court. The suit being valued at Rs. 50, there would be no escape from the bar of Section 102, Civil P.C. Mr. Roy's only answer to this was a petition in the alternative under Section 115, Civil P.C, In the end the learned advocate thought it wise not to press this particular objection, and it is worth while mentioning that the learned advocate on behalf of the respondents, Mr. Lahiri, was only too willing to make a present of this point to his friend on the other side. I might, all the same, state that in my view the suit would come within Clause (ii) of Article 35 of Schedule 2, Provincial Small Cause Courts Act, as being a suit for compensation for an act which would be an offence punishable under Chap. 17, Penal Code. The cutting down of the trees in respect of which damages were claimed was undoubtedly an act of mischief or criminal trespass as defined in the Penal Code, and I see no reason why the suit should not accordingly be regarded as falling strictly within the terms of el.(ii) of the said Article. The appeal to the learned Subordinate Judge would in that view be quite competent, and a second appeal would also lie to this Court.
3. As regards the other objections raised on behalf of the appellants, the only one which seemed to me to have some substance was that of limitation, and I might deal with it first. The Courts below have found that the trees were cut down on 28th November 1937. This was, therefore, the date of the accrual of the cause of action. The suit was actually instituted on 6th June of the following year, which was more than six months after the said date. Now, Section 535(2) provides that a suit such as this against the Commissioners of any municipality or any of its officers shall be commenced 'within six months next after the accrual of the cause of action, and not afterwards.' Clearly, therefore, if this was the only provision which governed the question of limitation, the suit would be out of time. On behalf of the plaintiffs, it was not disputed that Section 535 (2) applied to the case, but they claimed to be entitled to deduct the period of the notice which they had to give under Sub-section (1). The period of notice was one month, and if one month was excluded the bar of limitation would be successfully met.
4. In support of their contention, the plaintiffs relied on the provisions of Section 15(2), Limitation Act, which specifically lays down that in computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded. It is pointed out that this provision is applicable not merely to suits for which limitation is prescribed under the various Articles of the Limitation Act, but also in the case of suits for which a different period of limitation is prescribed by a special or local law. Reliance is placed in this connexion on Sub-section (2) of Section 29, which, as is well-known, was added to the Limitation Act in 1922 in order to remove a lacuna in the law to which attention had been drawn in various decisions of the Indian High Courts. Sab-section(2) of Section 29, Limitation Act, expressly provides that for the purpose of determining any period of limitation prescribed for any suit by any special or local law, the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply 'only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.' It follows, therefore, that the plaintiffs will be entitled to the benefit of Section 15(2) in computing the special limitation under Section 532(2), Bengal Municipal Act. 5. Mr. Roy was not slow to appreciate the position, but he still endeavoured to get out of it by relying on the qualifying words of Clause (a) of Sub-section (2) of Section 29 quoted above where it is stated that the specific provisions of the limitation Act therein referred to shall apply only 'to the extent to which they are not expressly excluded by such special or local law.' His argument was that there was express exclusion here by the terms of Sub-section (2) of Section 535, Bengal Municipal Act. As already pointed out, this Sub-section ends with the words 'and not afterwards.' It was contended that these words would really have no effect unless they were words of exclusion within the meaning of Clause (a) of Sub-section (2) of Section 29, Limitation Act. There is a good deal of force in the contention. It may well be that the Legislature by adding the words 'and not afterwards' did intend to exclude the applicability of those provisions of the Limitation Act which would operate to extend time in various contingencies. Unfortunately, however, if that was the intention of the legislature, they failed to carry it out by using appropriate language for that purpose. The language they used 'and not afterwards,' might possibly operate in the way intended, but by reason of the terms used in Section 29(2)(a), Limitation Act, I think it fell short of what was thereby required. The words 'expressly excluded' mean what they say. In order that the exclusion may be express, I think that the particular sections of the Limitation Act which are intended to be excluded must be specifically indicated by the special or local law in question. So far as the words 'and not afterwards' are concerned, the utmost that can be said is that the exclusion of those sections of the Limitation Act may be easily spelt out therefrom, but, in my opinion they will not amount to an express exclusion. In support of this view, I am fortified by a decision of Henderson J. to which my attention was drawn by Mr. Lahiri, reported in District Board, Chittagong v. Maulvi Emdadal Hoque : AIR1940Cal305 . The question was there considered in connexion with Section 146, Bengal Local Self-Government Act, (Bengal Act 3 of 1885), a section which is almost identical in terms with Section 535, Bengal Municipal Act, with which we are concerned here. The relevant provisions there also contained the words 'and not afterwards,' and Henderson J. held that it was difficult to say that this would be anything more than an exclusion by inference. The learned Judge went on to add that the matter had really been settled by the decision of a Division Bench of this Court in Sati Prosad Garga v. Govinda Chandra : AIR1929Cal325 . I see no reason whatsoever to differ from the views expressed in this case. I must accordingly overrule the plea of limitation which was raised on behalf of the appellants and hold that the suit was within time.
5. Turning now to the other points raised in connexion with the notice under Section 535, Bengal Municipal Act, the first point taken was that the notice did not specify the abode of the persons to whom it was addressed. I think it is sufficient to refer to the judgment of the learned Subordinate Judge in this matter. The learned Judge had before him the original notice, and he was satisfied that it was not defective in this particular. It was next urged that the notice had not been proved, though service of the notice was admitted. I was unable to fully appreciate the argument of Mr. Roy in this connexion. The original notice was produced before the appellate Court. Evidence regarding service of that notice had been given in the trial Court, though the original was not available then, but that evidence has got to be read in connexion with the original, because it was evidence regarding service of the original notice. In fact, there was no question so far as I can see regarding service of the notice. That being so, I hold that notice had been proved within the meaning of Sub-section (1)of Section 535, and the Court was under no duty of finding for the defendants, as contended for on their behalf. The next point taken was that on the findings of the Court below there could be no decree against the defendants. This again was an argument which I could not follow. As already pointed out, it was admitted before the learned Subordinate Judge that the defendants had out the trees. It was, therefore, futile on the part of the learned advocate for the appellants to point out that the trial Court had in a manner found that the trees had been removed not by the officers of the municipality, but by the over-zealous volunteers of the Anti Malaria Society. That finding was not expressed in connexion with the question as to the persons by whom the trees had been cut down. It may well be that although the actual cutting was done by the volunteers, they had set out on their operations under the orders of the municipality. Be that as it may, having regard to the admission made in the lower appellate Court, I am not prepared to hold that the lower appellate Court accepted any contrary finding of the trial Court to the effect that the act complained of had been done by persons other than the defendants concerned. This particular objection must accordingly be also overruled.
6. The last argument, almost an argument of despair, was that the cutting down of the trees was a matter within the discretion of the municipality, and that it was not for the civil Court to say that the simul trees were not noxious undergrowth, if the municipality had chosen to treat them as such. All that I need say is this that if the municipality regarded the cutting down of simul trees as the clearance of noxious undergrowth or vegetation, it would be an outrageous exercise of discretion on their part, and the hands of the civil Court would not be fettered in order to curb the exercise of such discretion, but I do not think that the municipality ever intended to claim any protection for their act on any such ground. It was further urged that the Act of the municipality was not necessarily under Section 242 or Section 369. All that need be said is that on the facts there could be no question of Action having been taken by the municipality under any of these other sections. The result is that all the points urged in support of the appeal fail. The appeal is accordingly dismissed with costs. Leave to appeal under C1. 15, Letters Patent is refused. As I have held that the appeal is competent, the application in the alternative filed under Section 115, Civil P.C., will be dismissed without costs.