Kerala High Court
T.Abdul Khader vs Kannur Municipality on 22 May, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
RSA NO. 897 OF 2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
RSA NO. 897 OF 2020
AGAINST THE JUDGMENT AND DECREE DATED 27.02.2020 IN AS NO.71
OF 2014 OF ADDITIONAL DISTRICT COURT-I, THALASSERY ARISING OUT
OF THE DECREE AND JUDGMENT DATED 23.01.2014 IN OS NO.304 OF
2012 OF SUB COURT, KANNUR
APPELLANT/RESPONDENT/PLAINTIFF:
T.ABDUL KHADER
AGED 63 YEARS, S/O.MUHAMMED KUNHI,
RESIDING AT SWEET DREAM, KOVALPALLY,
KANHANGAD, KASARGOD DISTRICT.
BY ADVS.
ABDUL RAOOF PALLIPATH
SRI.K.R.AVINASH (KUNNATH)
SRI.E.MOHAMMED SHAFI
SHRI. RAJ CAROLIN V.
RESPONDENT/APPELLANT/DEFENDANT:
KANNUR MUNICIPALITY
(NOW KANNUR MUNICIPAL CORPORATION),
REPRESENTED BY ITS SECRETARY,
MUNICIPAL OFFICE, KANNUR.
BY ADV SMT.M.MEENA JOHN, SC, KANNUR MUNICIPAL
CORPORATION
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
18.12.2023, THE COURT ON 22.5.2024 DELIVERED THE FOLLOWING:
RSA NO. 897 OF 2020
2
"CR"
T.R. RAVI, J.
--------------------------------------------
R.S.A. No.897 of 2020
--------------------------------------------
Dated this the 22nd day of May, 2024
JUDGMENT
The second appeal is filed by the plaintiff against the judgment
of the First Appellate Court whereby a decree in a suit for realisation
of ₹2,06,287/- was reversed. The parties are referred to as per
their status in the suit.
2. Plaintiff's case - The defendant constructed a market
complex near the old bus stand in Kannur and resolved on
19.04.2000 to license the rooms based on the best offer. The
plaintiff made the highest offer for room No.47 and on deposit of the
amount (₹2,00,999/-), he was put in possession of the room on
14.06.2001. On 25.10.2002, the defendant reduced the amount of
security to ₹1,20,000/-, and the plaintiff was entitled to get a
refund of the balance amount. On the plaintiff's request he was
allotted Room No.46, and the security deposit of Rs.1,20,000/- was
made up by payment of Rs.39,001/- and adjustment of the excess
amount paid as security for Room No.47. The plaintiff was thus put
in possession of room Nos.46 & 47 on security deposits of
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₹1,20,000/- each. On 13.07.2004, the plaintiff surrendered room
No.46, but the security deposit was not refunded. The plaintiff filed
O.S.No.214/2005 before the Subordinate Court, Thalassery, for the
realisation of the amount. The suit was dismissed, but the
judgment of the trial court was reversed by the Appellate Court in
A.S.No.178/2008. The appellate court decreed the suit and directed
the return of the security deposit amount after deducting the license
fee arrears. The plaintiff states that the execution proceedings for
realising the decree debt was pending at the time of initiation of the
present suit which is seeking the refund of the security deposit
relating to Room No. 47. In December 2008, the plaintiff
surrendered Room No.47 and claimed refund of security deposit of
₹1,20,000/-. It is stated that he has paid the entire licence fee
except for two months, which would be around ₹9,888/-. It is
alleged that though the room was allotted in April 2000, electricity
connection for the room was provided only on 12.11.2003. It is
stated that on request of the licensees of the rooms, the Municipal
Council had decided to reduce the rent of the room by 50% up to
the date of providing the electricity connection and hence the
plaintiff is entitled to ₹69,000/- being the 50% of the licence fee
paid during the period when there was no electricity connection.
RSA NO. 897 OF 2020
The plaintiff claims that a sum of ₹1,79,112/- is due from January
2009 and that despite repeated requests, the amount is not paid. It
is further stated that a notice under Section 544 of the Kerala
Municipalities Act was issued on 12.04.2001 through the plaintiff's
lawyer, demanding payment within two months and that the notice
was delivered to the defendant on 18.04.2011, but no payment was
made. Hence the suit.
3. Defendant's case - The defendant filed a written
statement admitting the allotment of rooms numbered 46 & 47 to
the plaintiff. The defendant admits that the plaintiff surrendered
room No.47 in December 2008. However, the liability to refund the
amounts is denied. It is stated that the plaintiff had renewed the
licence and was permitted to occupy room No.47 from 15.11.2006
and that the licence period was from 12.11.2006 to 11.11.2009 on a
fee of ₹4,400/- per month. It is stated that as per paragraph 26 of
the bye-law framed for licencing of rooms, if the licensee vacates
the room before the period of the licence is over, he will be liable to
pay the loss caused to the defendant due to the vacating of the
room. It is submitted that the room was lying vacant from January
2009 to November 2009 and the plaintiff is liable to pay the licence
fee for the said period and the defaulted licence fee from December
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2008. Regarding the deduction of the licence fee by 50%, it is
stated that though the Council had taken a decision to reduce and
forwarded the decision to the State Government for sanction, no
sanction had been obtained. It is submitted that the deduction of
₹69,000/- claimed by the plaintiff cannot be granted.
4. The plaintiff was examined as PW1 and Exts.A1 to A5
were marked on the side of the plaintiff. The defendant did not
adduce any oral evidence and Ext.B1 was marked subject to
objection by the counsel for the plaintiff. The trial court, after
considering the entire evidence on record, decreed the suit directing
the defendant to pay a sum of ₹2,06,287/- with future interest at
the rate of 6% per annum on ₹1,79,112/- from the date of the suit
till realisation. The defendant challenged the judgment and decree
in A.S.No.71/2014 before the Additional District Court-1, Thalassery.
The First Appellate Court held that the defendant was not able to
prove that they sustained any damage on account of the early
surrender of the room by the plaintiff. The court found that Ext.B1
bye-laws was not proved by adducing any oral evidence. It was
held that the terms and conditions contained in the bye-laws cannot
be grounds to disallow the plaint claim. However, on a finding that
the plaint claim is barred by limitation, the appellate court set aside
RSA NO. 897 OF 2020
the judgment and decree of the trial court. The claim for recovery
of 50% of the licence fee paid for the period when there was no
electricity connection was also rejected on the grounds of limitation.
The court also found that there is no material to support the
contention for the reduction of the licence fee. Aggrieved by the
reversal of the decree granted by the trial court, this second appeal
is filed.
5. The second appeal was admitted by this Court on the
following substantial questions of law:
(i) Does statutory notice u/s 544 of Kerala Municipality Act
forbids suits falling outside the scope and ambit of
scheme and subjects covered under Kerala Municipality
Act? and
(ii) As regards deposits lying in the hands of debtor what is
the attribute and legal character of what debt?
Whether it is in par with a debt payable in futoro in the
nature of deposit or money in hands of trustee for
which general provisions contained in Article 22 or
Article 133 of Limitation Act applies?
6. Heard both sides.
7. There is no dispute regarding the facts. The only
question is whether a claim for the return of the security deposit
given for allotment of a room, on the surrender of the room in 2008,
in a suit filed in 2011, was barred by limitation. The written
RSA NO. 897 OF 2020
statement filed by the defendant does not raise any contention
regarding limitation. No such issue was framed before the trial
court. The trial court was also not expected to frame the issue,
since there was no contention in the written statement. It can be
seen from the judgment that the appeal had been heard and taken
for orders and it was later that the learned appellate Judge
entertained the doubt about the bar of limitation. On facts, both the
trial court and the first appellate court found in favour of the
plaintiff, that amounts are due to the plaintiff. The only question to
be considered in this second appeal is whether the first appellate
court was right in setting aside the decree of the trial court on the
ground that the remedy is barred by limitation under Section 544 of
the Kerala Municipality Act, 1994.
8. The counsel for the defendant submits that given the
specific provision contained in Section 544 of the Kerala Municipality
Act, which has to be treated as a special provision regarding
limitation, the suit has to be filed within six months after the date
on which the cause of action arose. It is submitted that the period
of three years available for a money suit is not available in the case
on hand. Reliance is placed on the judgment in State of Gujarat
V. M/s.Kothari and Associates (2015 KHC 4720) to submit that
RSA NO. 897 OF 2020
there is a duty cast on the court to consider the issue of limitation
and since the trial court failed in the said duty, it was open to the
Appellate Court to correct it. It is submitted that the defendants
were entitled to raise the issue in the appeal, as it is a legal
question. In this context, it must be noted that as stated in the
judgment of the First Appellate Court, the defendant had not raised
the plea of limitation even in the appeal memorandum filed before
the First Appellate Court. The counsel for the defendant relied on
the judgment in Omanakunjamma V. Deputy Collector and
Competent Authority (Kerala) and Another (2019 2 KHC 12)
to submit that under Section 29 of the Limitation Act, 1963, when a
special Statute prescribes a period of limitation as well as the
provision for extension upto a specified time limit, the period of
limitation prescribed under the special law shall prevail and to that
extent the provisions of the Limitation Act shall stand excluded.
Reliance is placed on the judgment of a learned Single Judge of this
Court in St.Mary's Orthodox Church and Another V.
Thankamani Rajan and Others in RSA No.1209/2004 wherein
it was held that under Section 544(3) of the Kerala Municipality Act,
a suit should be filed within six months after the date on which the
cause of action arose.
RSA NO. 897 OF 2020
9. The counsel for the appellant argued that the demand for
the return of deposit has been made within three years and Article
23 of the Limitation Act will apply for fixing the period of limitation.
Reliance is placed on the judgment of a learned Judge of this Court
in WP(C) No.23871/2022 to submit that the State cannot raise
the claim of limitation since in such cases, where the claim for
money becomes a continuing cause of action till the liability is
discharged by the State. It is also contended that since it is a case
of refund of deposit, the period of limitation will start to run only
from the date of refusal to refund, after a demand is made, and not
from the date of surrender of the licensed premises.
10. For determination of the issue, it is necessary to extract
Section 544 of the Kerala Municipality Act, 1994.
"544. Institution of suits against municipal authorities, officers
and other employees-
(1) No suit shall be instituted against a Municipality or
any Municipal authority or any officer or other employee of a
Municipality or against any person acting under the order or
direction of a Municipal Authority or any officer or employee of
a Municipality in respect of any act done or purported to have
been done, in pursuance of this Act or any rule, regulation or
bye-law made thereunder until the expiration of two months
after notice in writing to the Municipality and, in the case of
such officer, employee or person, unless notice in writing has
also been delivered to him in person or at his office or place of
RSA NO. 897 OF 2020
residence, and unless such notice states explicitly the cause of
action, the nature of the relief sought, the amount of
compensation, claimed and the name and place of residence of
the intending plaintiff, and unless the plaint contains a
statement that such notice has been so delivered.
(2) Nothing in sub-section (1) shall be deemed to
apply to a suit in which the only relief claimed is an injunction
which object would be defeated by the giving of the notice or
the postponement of the institution of the suit.
(3) Every such suit shall be instituted within six
months after the date on which the cause of action arose or in
cases of continuing injury or damage, during such continuance
or within six months after the causing thereof.
(4) Where any person to whom any notice is given
under sub-section (1), tenders amends to the plaintiff before
the suit is instituted, and if the plaintiff does not recover in any
such action more than the amount so tendered he shall not
recover any costs incurred after such tender by the person to
whom such notice has been given and the defendant shall be
entitled to costs as from the date of tender.
(5) Where the defendant in any such suit is the
Chairperson, the Secretary, an officer or other employee of a
Municipality, payment of the sum, or any part thereof, payable
by him in or in consequence of the suit, whether in respect of
costs, charges, expenses, compensation for damages or
otherwise, may be made with the sanction of the Council, from
the municipal fund."
11. Section 544(1) says that no suit shall be instituted
against the Municipality in respect of any act done or purported to
have been done, in pursuance of the Act or any rule, regulation or
RSA NO. 897 OF 2020
by-law made thereunder until the expiration of two months after
notice in writing and unless such notice states explicitly the cause of
action, the nature of the relief sought, the amount of compensation
claimed and the name and place of the residence of the intending
plaintiff and unless the plaint contains a statement that such notice
has been so delivered. As per Section 544(2), the provisions in sub-
section (1) will not apply to a suit in which the only relief claimed is
an injunction, which object would be defeated by the giving of
notice or postponement of the institution of the suit. Section 544(3)
says that "every such suit" shall be instituted within six months
after the date on which the cause of action arose or in cases of
continuing injury or damage during such continuance or within six
months after the causing thereof. Sub-section (1) says that the suit
shall not be initiated before a notice of two months. If sub-section
(3) is to apply to all suits against a Municipality, even six months is
not available for filing a suit, since it will get reduced by two months
of notice time. Such an understanding of the provision will not do
justice to the words of the Statute.
12. A reading of Section 544 would show that the suits
covered by the provision are suits "in respect of any act done or
purported to have been done, in pursuance of this Act or any
RSA NO. 897 OF 2020
rule, regulation or bye-law made thereunder". The Hon'ble
Supreme Court has considered similar provisions in the municipality
laws relating to other municipalities. In Poona City Municipal
Corpn. v. Dattatraya Nagesh Deodhar [AIR 1965 SC 555], the
apex Court considered almost similar provisions in the Bombay
Provincial Municipal Corporation Act, 1949. The respondent before
the Court had demanded the refund of Octroi duty paid. However,
instead of refunding the entire duty, 10% of the duty was withheld
by the Municipality. The above action was challenged. Paragraph 22
of the judgment reads thus;
"22. There remains for consideration the appellant's plea of
limitation. For this plea, the appellant relies on Section 487 of Act
59 of 1949. The material part of the section runs thus:
"(1) No suit shall be instituted against the corporation
or against the Commissioner, or the Transport
Manager, or against any municipal officer or servant
in respect of any act done or purported to be done in
pursuance or execution or intended execution of this
Act or in respect of any alleged neglect or default in
the execution of this Act:
(a) until the expiration one month next after
notice in writing has been, in the case of
the corporation, left at the chief municipal
office and, in the case of the Commissioner
or of the Transport Manager or of a
municipal officer or servant delivered to
him or left at his office or place of abode,
RSA NO. 897 OF 2020
stating with reasonable particularity the
cause of action and the name and place of
abode of the intending plaintiff and of his
attorney, advocate, pleader or agent, if
any, for the purpose of such suit, or
(b) unless it is commenced within six months
next after the accrual of the cause of
action."
The benefit of this section would be available to the Corporation
only if it was held that this deduction of ten per cent was "an act
done or purported to be done in pursuance or execution or
intended execution of this Act". We have already held that this
levy was not in pursuance or execution of the Act. It is equally
clear that in view of the provisions of Section 127(4) (to which we
have already referred) the levy could not be said to be "purported
to be done in pursuance or execution or intended execution of the
Act". For, what is plainly prohibited by the Act cannot be claimed
to be purported to be done in pursuance or intended execution of
the Act. Our conclusion is that the High Court has rightly held that
the suit was not barred by limitation."
13. It is evident from the judgment that, as regards the claim
for amounts due from the Municipality, which are retained without
authority, the benefit of the provision regarding limitation will not be
available to the Municipality.
14. The above judgment was followed by the Hon'ble
Supreme Court in Surajmal Banshidhar v. Municipal Board
[(1979) 1 SCC 303]. Paragraph 5 of the above judgment reads as
follows:
RSA NO. 897 OF 2020
5. The question which arises for consideration is whether the suits
fell within the purview of Section 179(2) of the Act. The first two
sub-sections of Section 179 which bear on the controversy read as
follows:
"179. Limitation of suits, etc.-- (1) No suit shall be
instituted against any municipal board, president,
member, officer, servant or any person acting under
the direction of such municipal board, chairman,
member, officer or servant for anything done or
purporting to be done under this Act, until the
expiration of two months next after notice in writing,
stating the cause of action, the name and place of
abode of the intending plaintiff and the relief which he
claims, has been, in the case of a municipal board,
delivered or left at its office, and, in case of a
chairman, member, officer, or servant, or person as
aforesaid, delivered to him or left at his office or usual
place of abode; and the plaint shall contain a
statement that such notice has been so delivered or
left.
(2) Every such suit shall, unless it is a suit for the
recovery of immovable property or for a declaration of
title thereto, be dismissed if it is not instituted within
six months after the accrual of the alleged cause of
action."
The question therefore is whether the illegal levy of terminal tax
(assuming that it was illegal as held by the High Court) could be
said to be a thing "done or purporting to be done" under the Act.
A similar question arose for the consideration of this Court
in Poona City Municipal Corporation v. Dattatraya Nagesh
Deodhar [AIR 1965 SC 555 : (1964) 8 SCR 178 : (1965) 1 SCJ
626] with reference to the provision in Section 127(4) of the
RSA NO. 897 OF 2020
Bombay Provincial Municipal Corporation Act, 1949, and it was
held that if the levy of a tax was prohibited by the Act concerned
and was not in pursuance of it, it "could not be said to be
'purported to be done in pursuance or execution or intended
execution of the Act' ". It was observed that what was plainly
prohibited by the Act could not be "claimed to be purported to be
done in pursuance or intended execution of the Act". It was
therefore held that the suit was outside the purview of Section
127(4) and was not barred by limitation. We are in respectful
agreement with that view, and we have no hesitation in holding,
in the circumstances of the present cases, which are governed by
a provision similar to Section 127(4) of the Poona City Municipal
Corporation Act, that the suits did not fall within the purview of
Section 179 of the Act and were not barred by limitation. It may
be mentioned that it has not been argued before us, and is
nobody's case, that the suits would be barred by limitation even if
they did not fall within the purview of Section 179(2) of the Act.
The decision of the High Court to the contrary is not correct and
will have to be set aside."
15. The issue was considered again by the Hon'ble Supreme
Court in a case where an employee of a Municipality was illegally
terminated. Paragraph 4 of the judgment in J.N. Ganatra v. Morvi
Municipality [(1996) 9 SCC 495] is extracted below.
"4. We have heard the learned counsel for the parties. We are of
the view that the High Court fell into patent error in reaching the
conclusion that the dismissal of the appellant from service, in utter
violation of Rule 35 of the Rules, was an "act done in pursuance or
execution or intended execution of this Act ...". It is no doubt
correct that the General Board of the Municipality had the power
under the Act to dismiss the appellant but the said power could
RSA NO. 897 OF 2020
only be exercised in the manner indicated by Rule 35 of the Rules.
Admittedly the power of dismissal has not been exercised the way
it was required to be done under the Act. It is settled proposition
of law that a power under a statute has to be exercised in
accordance with the provisions of the statute and in no other
manner. In view of the categoric finding given by the High Court
to the effect that the order of dismissal was on the face of it illegal
and void, we have no hesitation in holding that the dismissal of
the appellant was not an act done in pursuance or execution or
intended execution of the Act. The order of dismissal being
patently and grossly in violation of the plain provisions of the
Rules. It cannot be treated to have been passed under the Act."
16. In the case on hand, the following facts are admitted.
The claim is for amounts that are "refundable deposits". The
deposits were made by the plaintiff pursuant to a licence granted by
the defendant to the plaintiff to use a shop room. The actions of the
defendant are governed by the provisions of the Kerala Municipality
Act, 1994. Section 215 (2)(a) of the Kerala Municipality Act 1994,
permits the Municipality to dispose of their properties by various
means which includes leasing out and licensing their buildings. The
relevant portions of Section 215 reads thus:
"215. Power of Municipality to acquire and dispose of
property.--
(l) A Municipality may in the manner prescribed, acquire any
property such as land or building within or outside its Municipal
area or dispose of any of its properties with the prior approval of
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the Government for providing any arrangement or facility for a
public purpose,
(2) (a) A Municipality may construct commercial or other
buildings and let them out to the public who need them
on licence and may charge such fees as it may fix for the
use and occupation of the same, in the manner
prescribed;
(b) Provided that after the said period, a licence may be
renewed subject to such terms and conditions as may be
fixed at that time;
(c) In all cases except renewal of licence or rehabilitation
of a licensee, licence shall be granted only by public
auction or tender.
(3) Every licence under sub-section (2) shall contain terms and
conditions governing the use and occupation of the building or
room or space therein and the rate and time of payment of fees
and such terms and conditions shall be reduced in writing in the
form of an agreement in stamp paper of the appropriate value.
(4) xxxxxxx
(5) xxxxxxxx
(6) xxxxxxx
(7) Every person to whom a licence has been issued under sub-
section (2) shall pay without demand the licence fee and other
charges at the rate specified in the agreement within such time as
may be specified therein.
(8) xxxxxxx
(9) xxxxxxx
(10) xxxxxx
(11) xxxxxx
(12) xxxxxxx
17. Section 215 does not speak about payment of
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advance/refundable deposit but says that the licensing shall be in
accordance with the terms prescribed. The Government has issued
the Kerala Municipality (Acquisition and Disposal of Property) Rules,
2000 for the purpose of giving effect to Section 215 of the Act. Rule
7 of the Rules reads thus:
Rule 7: Grant of Municipality's own property on lease-
(1) The Municipality may, subject to the conditions prescribed in
Section 215 of the Act, on licence basis for periods as fixed by the
Council, give on rent or lease, its own buildings.
(2) The transfer under sub-rule (1) shall be in accordance with
Form III in Schedule III of these Rules.
18. As per the Rules, a licence/lease granted under Section
215 is to be in the prescribed form. Though the copy of the licence
has not been produced in the suit, there is no dispute that a licence
had been granted and there is no case that the licence was not
granted as per Section 215 of the Act and the Rules issued for the
purpose. Granting or refusing to grant a licence would be an action
purported to have been done under the provisions of the Act and
Rules and would come within the purview of Section 544. The
defendant has no case that they have any authority beyond what is
granted by the Municipalities Act and the Rules made thereunder,
with regard to contracts of this nature. Applying the dictum laid
down in Poona Municipality (supra), an action that is specifically
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prohibited, cannot be an act purported to be done under the
provisions of the Act. As further explained in J.N.Ganatra (supra),
a power under a Statute has to be exercised in accordance with the
provisions of the Statute and in no other manner, and if it is not so
done, the act cannot be termed as done in pursuance or execution
or intended execution of the Act. Refusal to refund a deposit made a
person for the purpose of grant of licence, which is admittedly a
refundable security deposit, is hence not an action that can come
within the meaning of "purported to be done under the provisions of
the Act". In this context, it is significant to note the following
aspects.
(i) The defendant did not have a case in the written
statement that the claim is barred by limitation.
(ii) The only defence taken was regarding adjustments.
(iii) No issue was raised in the trial court regarding
limitation.
(iv) It is admitted that the amount of Rs.1,20,000/- was
a security deposit and surrender of premises in
December, 2008 is also admitted.
(v) No defence of limitation was put forward in the
earlier suit filed by the plaintiff for refund of deposit
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with respect to Shop No.46, though in the said case
also the claim was after 6 months of the surrender
of the building (See Ext.A2 judgment between the
parties).
19. The adjustment claimed is based on Exhibit B1 which is
stated to be the bye-laws for licensing premises. The trial court as
well as the First Appellate Court has already held that Exhibit B1 has
not been proved and cannot be relied upon by the defendant. The
defendant has not challenged the said finding. Ext.B1, though not
accepted in evidence, would also show that the licence is to be
granted on payment of a "refundable deposit". This fact also
supports the fact that refusing to refund will be an act done
purportedly under the provisions of the Act. It can thus be seen that
the advance amount received by the defendant was authorised, but
refusal to refund cannot be held to be an authorised action under
the Act, going by the dictum laid down in the Supreme Court
decisions referred above. If the action does not come within the
purview of Section 544 (1), the limitation contained in Section
544(3) also cannot apply. Hence the finding of the First Appellate
Court that the claim was barred by limitation, since the suit was not
brought within 6 months of the surrender of the premises, is not in
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accordance with law and is liable to be set aside. In view of my
finding that the suit does not come within the purview of Section
544(1), there is no necessity to consider the contention that the
limitation in case of claim for refund of deposit will start to run from
the date of the demand and refusal to pay.
20. Coming to the arguments advanced by the respondent/
defendant, the decisions in Kothari (supra) and
Omanakunjamma (supra) do not in any manner improve the case
of the respondent and do not have any impact on the interpretation
of Section 544 of the Kerala Municipality Act, 1994. The decision of
the learned Single Judge in St.Mary's (supra) does not consider
the question as to which are the suits that would come within the
purview of Section 544, and does not consider the effect of the
judgments of the Hon'ble Supreme Court in Poona Municipality
(supra) and other case referred above. In fact, the learned Single
Judge in St.Mary's (supra) held that the suit was filed within the
period of 6 months and hence there was no occasion to consider the
question of a case which is filed beyond the period of 6 months. The
Court also did not consider the meaning of the words "any act done
or purported to have been done, in pursuance of this Act or any
rule, regulation or bye-law made thereunder ". The above judgment
RSA NO. 897 OF 2020
cannot hence be considered as a binding precedent regarding the
issue considered in this appeal. The dictum laid down in the
judgments of the Hon'ble Supreme Court in Poona Municipality and
subsequent cases referred above, will squarely apply to the facts of
this case.
21. In view of the findings recorded above on the substantial
questions of law formulated in the appeal and on the applicability of
Section 544(1), the appeal is liable to be allowed. The judgment and
decree dated 27.2.2020 of the Additional District Court-I, Thalassery
in A.S.No.71 of 2014 are set aside and the judgment and decree
dated 23.1.2014 in O.S.No.304 of 2012 of the Sub Court, Kannur
are affirmed. The parties shall bear their respective costs.
Sd/-
T.R. RAVI
JUDGE
Pn
