The Chief Officer,Nagar Parishad vs Laxminarayan Jainarayan Jaiswal
2017 Latest Caselaw 3801 Bom

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR.


                                              SECOND APPEAL NO.327 OF 2003


               APPELLANT:                                              The   Chief   Officer,   Nagar   Parishad,
               (Original Defendant)                                    Morshi, Tq. Morshi, Dist. Amravati.
                                                                   
                                                          
                                                           -VERSUS-


               RESPONDENT:                            Laxminarayan   S/o   Jainarayan   Jaiswal,
               (Original Plaintiff)                   aged about 52 years, Occ-Business, R/o
                                                      Shirkhed, Tq. Morshi, Dist. Amravati.
                                                                                                                       

              Shri A. B. Patil, Advocate for the appellant.
              Shri A. J. Gilda, Advocate for the respondent.


              CORAM: A.S. CHANDURKAR, J.

DATE ON WHICH SUBMISSIONS WERE HEARD: 22-06-2017. DATE ON WHICH JUDGMENT IS PRONOUNCED: 30-06-2017.

ORAL JUDGMENT :

1. This appeal filed under Section 100 of the Code of

Civil Procedure, 1908 takes exception to the judgment dated

20-3-2003 in Regular Civil Appeal No.215/1999 thereby partly

modifying the decree passed by the trial Court in Regular Civil Suit

No.122/1996 and directing the appellants herein to pay to the

respondent a sum of Rs.70,000/- with 6% interest thereon.

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2. The respondent is the original plaintiff who claims to

have purchased the plot no.71 within the limits of Gram Panchayat

Drugwada on 16-12-1985. The plaintiff also claims to have

purchased plot no.72. These plots were beyond the limits of

appellant - Municipal Council. On account of extension of the

territorial limits of the Municipal Council, these plots came within

its jurisdiction. The Municipal Council issued a notice to the

plaintiff on 1-6-1995 in which it was informed that these plots

were reserved for a Primary School and as the plaintiff had put

barbed wire fencing without permission of the Municipal Council,

the same should be removed. Prior to receipt of this notice, the

Municipal Council illegally removed the fencing. Hence, after

issuing notice under provisions of Section 304 of the Maharashtra

Municipal Council Nagar Panchayats and Industrial Township Act,

1965 (for short, the said Act), the plaintiff filed suit for recovery of

Rs.70,000/- being the loss caused by the Municipal Council on

account of its illegal action.

3. In the written statement filed by the defendant, it was

pleaded that the Plot Nos.71 & 72 vested with the Municipal

Council and were reserved for public use. It was denied that the

Municipal Council committed any illegal act of removing the

fencing. Reference was made to a notice dated 26-5-1995 calling

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upon the plaintiff to remove the fencing within three days and as

the same was not done, the Municipal Council had taken action.

It was further pleaded that the suit as filed was not within

limitation as prescribed by the said Act.

4. The trial Court framed various issues after which the

parties led evidence. It was held that the defendant in a wrongful

manner removed the barbed wire fencing and, therefore, the

plaintiff was entitled for damages. The trial Court decreed the suit

and directed payment of aforesaid amount with future interest

@18% per annum. In the appeal preferred by the Municipal

Council, the appellate Court reaffirmed the aforesaid findings.

It, however, reduced the rate of future interest @6% per annum

while partly allowing the appeal.

5. The following substantial questions of law were

framed while admitting the appeal:

(1) Whether the suit filed by the plaintiff is maintainable when there is a bar to file the suit against the Municipal Council under Section 303 of the Maharashtra Municipalities Act, 1965?

(2) Whether the judgment and decree of both the Courts are sustainable which is passed without considering important admission of the plaintiff which goes to the root of the case and whether the Courts below are justified in passing

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the judgments and decree in favour of the plaintiff when there is evidence contrary to the pleadings by the plaintiff?

6. After hearing the learned Counsel for the parties, on

25-6-2017 substantial question No.3 was framed under provisions

of Section 100 (5) of the Code and hearing was adjourned so as to

grant an opportunity to the respondent to answer the aforesaid

substantial question. Question No.3 reads thus :

The plaintiff having issued notice under Section 304 of the Maharashtra Municipal Councils, Nagar Panchayats & Industrial Townships Act, 1965 on 1st July, 1995 (Exh.52), whether the suit filed on 6th April, 1996 was within limitation prescribed by Section 304(1) (a) of the said Act?

The learned Counsel for the parties were thereafter heard on all

the substantial questions of law.

7. Shri A. B. Patil, learned Counsel for the appellant

submitted that both the Courts erred in coming to the conclusion

that the action of the Municipal Council in removing the barbed

wire fencing was illegal so as to grant a decree in favour of the

plaintiff. It was submitted that after issuing notice on 26-5-1995

(Exhibit-67) and after preparing panchanama (Exhibit-68), the

plaintiff had given an undertaking (Exhibit-69) of removing the

barbed wire fencing. As the notice dated 26-5-1995 was not

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complied with, the Municipal Council on 2-6-1995 removed the

same. This act was done in good faith and, therefore, in terms of

Section 303 of the said Act, the suit itself was not maintainable. In

that regard, he referred to the decision of the Hon'ble Supreme

Court in General Officer Commanding Rashtriya Rifles vs. Central

Bureau of Investigation and another (2012) 6 SCC 228. It was then

submitted that the suit was barred by limitation as prescribed by

Section 304 of the said Act. Under said provisions, the suit was

required to be filed within a period of six months from the accrual

of the cause of action. In the plaint, it was pleaded that the cause

of action accrued on 2-6-1995. Notice under Section 304 of the

said Act was issued on 1-7-1995 while the suit was filed on 6-4-

1996. A specific plea in that regard was taken in the written

statement. Hence, on the basis of the pleadings in the plaint and

the notice issued by the plaintiff, it was clear that the suit was

barred by limitation. It was submitted that though this plea was

not raised before the first appellate Court, the same being a

question of law going to the root of the mater, the same could be

urged in the second appeal. For said purpose, the learned Counsel

placed reliance on the decisions in Union of India and another vs.

British India Corporation Ltd. And others (2003) 9 SCC 505 and

State of Gujarat Vs. Kothari and Associates (2016)14 SCC 761. It

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was, therefore, submitted that the suit was liable to be dismissed

on said count.

8. On the other hand, Shri A. J. Gilda, learned Counsel

for the respondent supported the impugned judgment. He

submitted that the Municipal Council acted in an illegal manner

and removed the barbed wire fencing without giving due notice to

the plaintiff. The notice dated 10-5-1995 (Exhibit-57) given by the

defendant was only with regard to removal of fodder and not the

fencing. The notice dated 26-5-1995 (Exhibit-67) was not proved

to be duly served on the plaintiff and there was no

acknowledgement of the same. Similarly, an undertaking dated 2-

6-1995 (Exhibit-69) was not given by the plaintiff himself. He,

therefore, submitted that on 2-6-1995, the barbed wire fencing

was illegally removed by the Municipal Council. The action not

being in good faith and without following the prescribed

procedure, both the Courts were justified in holding against the

defendant. It was then vehemently urged that substantial question

of law No.3 would not arise for consideration on the ground that

the plea with regard to bar of limitation was not raised earlier.

Though a stand in that regard was taken in the written statement,

it was not seriously pursued. According to him, the question of

limitation was a mixed question of law and fact and the same was

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not permissible to be raised for the first time in the second appeal.

He further submitted that the conduct of the defendant was such

that it should not be permitted to raise this plea at this stage of the

proceedings. In support of his submissions, the learned Counsel

placed reliance on the following decisions:

(1) Chandrashekhar Vs. R.S.P. Mandal, 2007(2) Mh.L.J.296.

(2) Gauri Shankar vs. M/s Hindustan Trust (Pvt.) Ltd. & others (1973) 2 Supreme Court Cases 127.

(3) Ittyavira Mathai Vs. Varkey Varkey and another (1964) 1 SCR 495.

(4) State of Punjab vs. Darshan Singh (2004) 1 Supreme Court Cases 328.

(5) Maharaja Manindra Chandra Nandi vs. Raja Sri Sri Durga Prashad Singh AIR 1917 PC 23.

9. Since substantial question No.3 deals with the aspect

of limitation, the same is taken up for consideration.

10. In the plaint, it has been pleaded in para 3 that the

plaintiff had issued notice to the defendant under Section 304 of

the said Act. This notice was served on the Municipal Council.

In the written statement, it was pleaded in para 3 that the suit was

not filed within limitation as prescribed. The plaintiff in his

deposition referred to issuance of notice under Section 304 of the

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said Act dated 1-7-1995 which notice came to be exhibited as

Exhibit-52. At Exhibit-53 is the acknowledgement of its service on

the Chief Officer of the Municipal Council on 2-7-1995.

11. It would first be necessary to consider whether the

defendant can be permitted to urge the bar of limitation in the

second appeal. It is well settled that if the question of limitation is

a mixed question of law and fact, the same should normally not be

permitted to be raised for the first time in second appeal -

Ittyavira Mathai (supra). However, at the same time, if such

question is a pure question of law based on admitted documents

and such question goes to the root of the matter, it can be

permitted to be raised in an appropriate case - Gauri Shankar

(supra).

In Kothari and Associates (supra), the Hon'ble Supreme

Court found that the issue with regard to limitation had not been

pleaded before the trial Court or the High court. It was raised for

the first time during the course of oral arguments before the High

Court. The Hon'ble Supreme Court observed that in the light of

provisions of Section 3 of the Limitation Act, 1963 it was irrelevant

that the appellant therein had not raised the issue of limitation

before the trial Court. A duty was cast on the trial Court on its own

initiative and as the same was not done the appellant therein was

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competent to raise said legal question in further proceedings.

Referring to the decision of the Privy Council in Lachhmi Sewak

Sahu v. Ram Rup Sahu AIR 1944 PC 24, it was observed that the

point of limitation was available to be urged even in the Court of

last resort. This plea was thereafter examined on the basis of the

admitted position on record. In British India Corporation Ltd.

(supra), it was observed that the question of limitation is a

mandate to the forum concerned and in absence of any dispute on

facts, the same has to be considered even if it was not raised.

12. In the light of the aforesaid position, I do not find any

impediment in not considering the plea of limitation on the basis

of admitted facts though it was not specifically raised in the courts

below. Under Section 304 of the said Act, limitation of six months

from the date of service of the notice under Section 304 of the said

Act has been prescribed for filing a suit against the Municipal

Council. Section 304(1) of the said Act reads thus :

304. Limitation of suits against Council, its committees, officers and servants for acts done in pursuance or executing of this Act. (1) No suit shall lie against a Council or against any committee constituted under this Act, or against any officer or servant of a Council a respect of any act done in pursuance or executing or intended execution of this Act, or in respect of any alleged neglect or default in the execution of this Act--

(a) unless it is commenced within six months next after the accrual of the cause of action; and

(b) until the expiration of one month after

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notice in writing has been, in the case of a Council or its committee, delivered or left at the municipal office and, in the case of an officer or servant of a Council, delivered to him or left at his office or place of abode; and all such notices shall state with reasonable particularity the causes of action and the name and place of abode of the intending plaintiff and of his advocate, pleader or agent, if any, for the purpose of the suit.

Admittedly, the plaintiff on 1-7-1995 issued such notice under

Section 304 of the said Act (Exhibit-52). This notice was served

on the Municipal Council on 2-7-1995 (Exhibit-53). The suit has

been filed on 6-4-1996. It is only notice at Exhibit-52 issued by the

plaintiff and the date of the filing of the suit by the plaintiff that is

required to be taken into consideration for determining the

question as regards limitation. In that backdrop, the issue of

limitation cannot be said to be a mixed question of law and fact

and it is a pure question of law as to whether the suit has been

filed within a period of six months from the issuance of notice

under Section 304(1) of the said Act. As this question is being

considered on the basis of notice issued by the plaintiff himself and

the date on which the suit was filed, I do not find any reason not

to consider the same in the second appeal especially when it goes

to the root of the matter.

According to the plaintiff himself, he had issued notice

under Section 304 of the said Act (Exhibit-52) on 1-7-1995. This

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fact was pleaded in the plaint and the notice was also brought on

record. Therefore, the only aspect that remains to be considered is

whether the suit as filed on 6-4-1996 was within the prescribed

period of limitation. The statutory period of limitation under

Section 304(1) of the said Act being six months from the date of

receipt of notice, it is clear that the suit has been filed beyond the

period of statutory limitation. It will, therefore, have to be held

that the suit was barred by limitation that was prescribed under

Section 304(1) of the said Act. Substantial question of law No.3

therefore stands answered accordingly.

13. In the light of the answer given to question No.3, it is

not necessary to answer substantial question Nos.1 and 2 in as

much as those questions would require consideration only if the

suit is found to have been filed within limitation. As the suit has

been found to have been filed after the statutory period of

limitation, question Nos.1 & 2 do not arise for consideration.

14. In the result, the following order is passed:

ORDER

(1) The judgment dated 20-3-2003 in Regular Civil Appeal

No.215/1999 is quashed and set aside.

(2) Special Civil Suit No.122 of 1996 stands dismissed.

               sa327.03.odt                                                                       12/12




              (3)                      The second appeal is allowed with no order as to costs.




                                                                                    JUDGE

              /MULEY/