Jagat Narayan, J - (1.)THIS is an appeal by the defendants against an order of the District Judge, Udaipur, remanding a suit under O. 41, r. 23 C. P. C.
(2.)THE plaintiffs are members of the Shahpura House Sharrafa Market Committee, Udaipur. THEy own a house known as Shahpura-ki-Haveli situated at Udaipur. A big heap of rubbish had collected in front of the Haveli on account of the negligence of the City Corporation Udaipur and they requested the latter to remove it. Ultimately a resolution was passed by the Corporation permitting the plaintiffs to remove the heap of rubbish and agreeing to pay Rs. 3000/- as remuneration for the work. In pursuance of this agreement the plaintiffs got the heap removed. THE present suit was brought to recover the amount of Rs. 3000/- from the Municipal Council Udaipur the successor of the City Corporation Udaipur. THE Municipal Council Udaipur and Shri Ismail Ali Bohra the then President of the City Corporation Udaipur at the time when the above resolution was passed were impleaded as defendants. THE suit was instituted on 10. 8. 1961 after the Rajasthan Municipalities Act 1959 had come into force. But no notice as contemplated under sec. 271 of the Act was served before bringing-it. THE suit was resisted inter alia on the ground that it was not maintainable as no notice was served. Sec. 271 runs as follows: - Suits against board or its officers - (1) No suit shall be instituted against a board, or against the chairman, vice-chairman, member, officer or servant of a board or against any person acting under the direction of any of them 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 thereof in writing has been, in the case of a board, left at its office and, in the case of the chairman, vice-chairman, member, officer, servant or person, 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) No action such as is described in subsec. (i) 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 accrual of the cause of action. (3) Nothing in sub-sec. (i) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defueated by the giving of the notice or the postponement of the commencement of the suit or proceeding.
This plea prevailed with the trial court which dismissed the suit. The appellate court however reversed the decision relying on the Full Bench decision of the Allahabad High Court in District Boards Allahabad vs. Lala Beharilal (l) which in turn followed the decision of their Lordships of the Privy Council in Revati Mohan Das vs. Jatindra Mohan (2 ).

On behalf of the appellants it is contended that the decision in District Board Allahabad vs. Lala Behari Lal (l) is not correct and that the facts of the case in Revati Mohan Das. vs. Jatindra Mohan (2) are distinguishable. The learned counsel for the appellants was however unable to cite any decision in which a contrary view might have been taken on facts similar to those in District Board Allahabad vs. Lala Behari Lal (l ). The learned counsel for the respondents referred to two other decisions namely Faqir Muhammad vs. Municipal Committee, Phillaur (3) and Mathura Prasad vs. Chairman, District Board Sitapur (4) in which the same view was taken by the Division Benches of the Lahore High Court and the Oudh Chief Court.

Having heard the learned counsel for the parties I am of the opinion that the decision of the court below is correct. The wordings of sec. 192 of the U. P. District Boards Act which came up for interpretation before the Allahabad High Court in District Board, Allahabad vs. Beharilal (l) and before the Oudh Chief Court in Mathura Prasad vs. Chairman, District Board, Sitapur (4) are similar to the wordings used in sec. 271 of the Rajasthan Municipalities Act. The wordings of sec. 49 of the Punjab Municipal Act which came up for interpretation before the Lahore High Court in Faqir Mohammad vs. Municipal Committee, Phillaur (3) are also similar. It will be seen that a notice under sec. 271 is necessary only (1) if the suit is in respect of any act done or purporting to have been done by the board or by its chairman, vice-chairman, member, officer or servant and (2) such act is done or purports to have been done in an official capacity.

Both these ingredients are essential before the section can be attracted. It is to be borne in mind that apart from prescribing a notice the section also prescribes a shorter period of limitation and thereby restricts the ordinary rights of a litigant. This section has therefore to be construed strictly. See Ahmedabad Municipality vs. Jayantilal (5 ).

In the present suit the plaintiffs do not complain against any act of the board, or its officer or servant. It is a suit for recovery of money due under an agreement where there is mere omission to pay on the part of the defendants. Mere omission to pay cannot be described as an act. It is true that an act includes an "illegal omission" within the definition of the word as given in the Rajasthan General Glauses Act. The term "illegal omission" is not defined under the General Glauses Act. Its dictionary meaning has therefore to be given to this expression. In the literal sense "illegal omission" is an omission which is illegal, that is which is directly forbidden by some law. Non-payment of a sum which is due cannot be said to be an illegal omission, as it is not directly for bidden by any law. Coming now to the second essential ingredient, that also is lacking in the present case. Mere omission to pay cannot be considered to be an act done or purporting to be done in an official capacity.

In Revati Mohan Das vs. Jatindra Mohan (2) a mortgage was executed by a former manager of an estate in his official capacity under sec. 95 of the Bengal Tenancy Act. The suit was brought to recover the mortgage money by the sale of the mortgaged property against the then manager of the estate who resisted it inter alia on the ground that a notice as prescribed under sec. 80 C. P. C. was not served. Sec. 80 C. P. C. runs as follows - "notice - No suit shall be instituted against the Government, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to or left at the office of - (a) in the case of suit against the Central Government, except where it relates to a railway, a Secretary to that Government ; (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway ; (c) in the case of a suit against a State Government, a Secretary to that Government or the Collector of the District, and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place or residence of the plaintiff and the relief which he claims ; and the plaint shall contain a statement that such notice has been so delivered or left. "

It will be seen that so far as a suit against a public officer is concerned the wordings of sec. 80 C. P. C. are similar to the wordings used in sec. 271 of the Rajasthan Municipalities Act. Their Lordships of the Privy Council held in Revati Mohan Das Vs. Jatindra Mohan (2) that no notice was necessary inter alia on the following grounds : - "in the case of suit against a public officer it is only where the plaintiff complains of some act purporting to have been done by him in his official capacity that notice is enjoined. Counsel for respondent contends that this condition was satisfied by the execution of the mortgage, or, alternatively, by the failure to pay off the mortgage. In their Lordships' opinion neither branch of this contention is sufficient to bring the section into play in the present case. On the first branch it is sufficient to point out that the mortgage was not executed by respondent, but by a former manager, and that the appellant does not complain in any way of the execution of the mortgage. On the alternative contention their Lordships are unable to hold that non-payment by respondent is an "act purporting to be done by", the manager "in his official capacity. " Under the general definitions contained in sec, 3. General Clauses Act. 1897, an '"act" might include an illegal omission, but there clearly was no illegal omission in the present case. It is also difficult to see how mere omission to pay either interest or principal could be an act purporting to be, done by the manager in his official capacity. "

Although the facts of the case before their Lordships of the Privy Council were different from the facts of the present case and from the facts of the cases referred to above (1), (3) and (4) the above reasoning is fully applicable in the present case.

On behalf of the appellants it was argued that the passing of the resolution by the board embodying the agreement on the basis of which the suit has been brought is a positive act of the board which is part of the cause of action for the suit and that the passing of the resolution is also an official act and consequently both the ingredients referred to above are present in the present case. I am unable to accept this contention for the same reason for which a similar contention was not accepted by their Lordships of the Privy Council in Revati Mohan's case (2 ). Although the passing of the resolution embodying the agreement to pay Rs. 3000/- to the plaintiffs for the removal of the dump of rubbish was part of the cause of action of the plaintiffs they do not complain of it. Their complaint is that the Board has omitted to make payment in accordance with the resolution. As has already been pointed out above omission to pay cannot be regarded as an official act. Nor is it an illegal omission.

I accordingly dismiss the appeal with costs. .