Decided on September 06,1965

Panna Lal Kakker Appellant
The Municipal Board Agra Respondents

Referred Judgements :-



B. Dayal, J. - (1.)This second appeal has been referred to a Division Bench for the purpose of considering the applicability of Full Bench ruling of this Court reported in Antarim Zila Parishad, (District Board) v/s. Shanti Devi and Anr. (1965 AWR 146).
(2.)This appeal arises out of a suit filed by the Plaintiff for the recovery of price of articles supplied to the Municipal Board on the 23rd of March, 1949. The present suit was filed on 21st May, 1952. It was, therefore, more than three year's after the supply of the Articles. The contention raised by the Defendant which was accepted by the courts below was that the suit was barred by Sec. 326 of the U.P. Municipalities Act. That Sec. prescribed a period of six month's limitation Under Sub -section (3) for the suits of the nature mentioned in Sub -section (1). Sub -section (1) refers to suits against the Board "in respect of an act done or purporting to have been done in its or his official capacity..." In order to apply Sec. 326, therefore, the suit must be in respect of an act done by the Board in its official capacity. In the present case the suit has been filed in respect of the price of the goods supplied by the Plaintiff. Obviously this is not a suit in respect of an act done by the Municipal Board. A similar provision exists in Sec. 192 of the U.P. District Boards Act where the words are exactly similar and a Full Bench of this Court in Antarim Zila Parishad (District Board) v/s. Shanti Devi and Anr. reported in, 1965 AWR 146 held "S. 192 of the District Boards Act applies to a suit in respect of an act done. A suit has to be based on a cause of action. For the applicability of Sec. 192 it must be in respect of an act done by the Board. Combining the two requirements one aniyes at the requirement that an act done by the Board must complete the cause of action against it. The Board's act is the act without which there is no cause of action in the Plaintiff's favour and Sec. 192 requires that it is this act which must have been done by the Board in its official capacity. The meaning of the words "a suit in respect of an act done by the Defendant" is that it is one challenging the correctness or validity of the Act. A suit is filed by a Plaintiff because he is aggrieved by an act done by the Defendant, so a suit in respect of an act done by a Defendant evidently means a suit by a plain tiff feeling aggrieved by the act for relief against it. In other words it is a suit challenging the act of the Defendant. This is what was held by the Judicial Committee of the Privy Council in the case of Revati Mohan Das v, latindra Mohan Ghosh (2), (3) AWR 561).
(3.)It was also contended before that Full Bench that non payment was an Act done by the Board and it was held that non payment was not part of a cause of action. Payment may be a defense raised in the suit. But non payment need not be alleged by the Plaintiff himself. Thus the suit could not be said to be based on non payment.

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