The appellantsplaintiffs stated in paragraph
No.5 of plaint that the cause of action arose on 12th
August, 1968, and thereafter arose every day. The
question is, whether the cause of action continued to
arise after 12th August, 1968 every day? On the face
of it, this statement is made only to prevent the
plaint getting rejected. This statement has no meaning
in the eye of law. The cause of action in this suit
certainly arose on 12th August, 1968. The action
concluded on that day when the Municipal Council
completed the process of auction, therefore, there was
no question of accrual of cause of action every day
thereafter. Therefore, on the face of it, the plaint
filed in this manner ought to have been rejected. If
that was not done earlier, it can be done at the next
available stage. The next available stage was Order
XIV of the Code of Civil Procedure. Indeed, the
learned judge rightly raised this as a preliminary
issue and made endeavour to dispose of the suit
without recording evidence as early as possible.
Atleast in this case, issue of limitation was not a
question of fact at all, because the appellants
plaintiffs themselves did not plead it. Apparently,
the draftman of the plaint did not look into the
provisions of Section 304 of the MMC Act. So, since
the plaint itself was defective, the defect was
sufficient to bring this within the parameters of
clause (b) of subrule (2) of Order XIV of Code of
Civil Procedure. Clause (b) provides that the Court
can decide the suit on the basis of preliminary issue
if such issue relates to either jurisdiction of the
Court or to a bar created by any law. The plaint of
this suit was drafted in such a manner that it stood
barred by Section 304 of the MMC Act. In view of
this, though technically the issue of limitation is
generally a question of law and fact, atleast in this
case could have been decided as preliminary issue.
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SECOND APPEAL NO. 185 OF 1998
Narayan Ganpat Dalwale
V E R S U S
The Municipal Council Jalgaon, District
Jalgaon
CORAM : A. V. NIRGUDE, J.
DATE : 1st February, 2013
Citation; 2013 (5) ALL M R 670
Following substantial question of law was
recorded by my learned brother earlier in this
appeal:
“Whether in the facts and circumstances of
the present case, the question of limitation
could be decided as a preliminary issue when
Section 304 of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial
Townships Act, 1965 would make it explicit
that the suit is required to be filed within
six months from date of accrual of the cause
of action and that in the present case the
accrual of the cause of action as on
effecting auction of the house property or on
receiving of knowledge by the plaintiffs as
claimed by them and whether without recording
2.
of evidence. Such issue could be decided by
the trial and the first appellate Court ?”
The appellants were plaintiffs. Their case
was as under.
3.
One Dagdabai was their ancestor. She was
owner of the suit house which is situated within the
local limits of Municipal Council, Jalgaon. Dagdabai,
probably did not pay property tax, and so, in March
1968, the suit house was attached by the Municipal
Council. On 4th July, 1968, the Municipal Council
offered the suit house to public at large in an
auction sale. The house was sold ultimately to
respondent No.2. The sale stood confirmed on 12th
August, 1968, after following due process of law. The
appellantsplaintiffs asserted that the auction was
bad because the mandatory notice was not given to
Dagdabai.
4.
The appellants plaintiffs drafted the
plaint of this suit saying that the cause of action
for the suit arose on 12th August, 1968, and the same
continued to arise every day thereafter. They also
made prayer for possession of the suit house along
with declaration that the auction was bad in law and
not binding on them. While drafting the plaint, they
further mentioned that they would seek possession of
the suit house in this suit, but would pay required
court fee (on the basis of market value of the suit
house) subsequently. But, before the suit was filed
in the office of the Court, the prayer clause (B) for
possession of the suit house was removed. The question
is, what is the effect of such removal of prayer? On
the face of it, the appellantsplaintiffs at the
eleventh hour decided not to seek possession. They
were certain about it when they removed original
prayer clause (B). If they did not want possession of
the suit house, then whatever stated in respect of the
possession of the suit house else where in the plaint
stood automatically removed though it is not
physically removed from the plaint.
Despite of removal of the prayer of
5.
possession, the suit was registered and summons were
issued. The respondentsdefendants took inter alia
two important objections; first was that the suit was
not maintainable without consequential relief of
possession; and second was, the suit was hopelessly
barred by limitation, as provided in Section 304 of
the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965 (for short ‘MMC
Act’).
6.
The learned judge of the trial Court framed
several issues and said that these all issues are
preliminary issues and then dismissed the suit without
recording evidence of the parties. He held that the
suit was not maintainable because there was no prayer
of consequential relief of possession etc. Secondly,
he held that the suit is barred by limitation as
provided in Section 304 of the MMC Act.
7.
The learned judge of the trial Court
undertook this exercise probably under Order XIV of
Code of Civil Procedure. The objection of such
disposal of the suit is raised saying that the issue
of limitation could not have been decided as
preliminary issue because it was a mixed question of
law and fact and ought to have been decided only after
recording evidence. Technically this objection is
maintainable, but probably the facts that are
mentioned in the plaint and which is case of the
plaintiffs themselves, would prevent them from filing
this suit at belated stage, in the light of peculiar
provisions of Section 304 of the MMC Act. Section 304
of the MMC Act, reads as under :
304. Limitation of suits against Council, its committees, officers
and servants for acts done in pursuance of execution 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 in 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
until the expiration of one month after 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 the
advocate, pleader or agent, if any, for the purpose of
the suit.
(2)
At the trial of any such suit,
(a) the plaintiff shall not be permitted to adduce evidence
relating to any cause of action save such as is set forth
in the notice delivered or left by him as aforesaid;
(b) if the suit be for damages and if tender of sufficient
amends shall have been made before the action was
brought, the plaintiff shall not recover more than the
amount so tendered and shall pay all costs incurred by
the defendant after such tender.
(3)
If the defendant in any such suit is an officer or servant of a
Council, payment of any sum or part thereof payable by him in or in
consequence of the suit may, with the sanction of the Council, be
made from the municipal fund.
(4)
Nothing in clauses (a) and (b) of subsection (1) shall apply
to any suit under section 38 of the Specific Relief Act, 1963 [XLVII
of 1963] or under subsections (1) or (2) of Section 96 of this Act.
(b)
The provision is very stringent and it is drafted with
a view to prevent unnecessary litigation. This Section
enjoins a litigant who intends to file suit against
Council for any act done in pursuance of the
provisions of this Act, he must do so within six
months next after the accrual of cause of action. He
must not do so without giving necessary notice
contemplated under clause (b) of subsection (1). In
this case, the cause of action admittedly arose on 12th
August, 1968, as pleaded by them, and admittedly,
without any notice contemplated under clause (b) of
subsection (1) above, this suit was filed way beyond
six months.
The appellantsplaintiffs stated in paragraph
8.
No.5 of plaint that the cause of action arose on 12th
August, 1968, and thereafter arose every day. The
question is, whether the cause of action continued to
arise after 12th August, 1968 every day? On the face
of it, this statement is made only to prevent the
plaint getting rejected. This statement has no meaning
in the eye of law. The cause of action in this suit
certainly arose on 12th August, 1968. The action
concluded on that day when the Municipal Council
completed the process of auction, therefore, there was
no question of accrual of cause of action every day
thereafter. Therefore, on the face of it, the plaint
filed in this manner ought to have been rejected. If
that was not done earlier, it can be done at the next
available stage. The next available stage was Order
XIV of the Code of Civil Procedure. Indeed, the
learned judge rightly raised this as a preliminary
issue and made endeavour to dispose of the suit
without recording evidence as early as possible.
Atleast in this case, issue of limitation was not a
question of fact at all, because the appellants
plaintiffs themselves did not plead it. Apparently,
the draftman of the plaint did not look into the
provisions of Section 304 of the MMC Act. So, since
the plaint itself was defective, the defect was
sufficient to bring this within the parameters of
clause (b) of subrule (2) of Order XIV of Code of
Civil Procedure. Clause (b) provides that the Court
can decide the suit on the basis of preliminary issue
if such issue relates to either jurisdiction of the
Court or to a bar created by any law. The plaint of
this suit was drafted in such a manner that it stood
barred by Section 304 of the MMC Act. In view of
this, though technically the issue of limitation is
generally a question of law and fact, atleast in this
case could have been decided as preliminary issue.
9.
As explained above, the suit did not have a
prayer of consequential nature after declaration was
sought in respect of legality of the auction sale.
Section 34 of the Specific Relief Act apparently
prohibits filing of such suit. The learned judge
rightly decided this issue at preliminary stage. This
objection again goes to the route of the case and
would also come within the parameters of clause (b) of
Rule 2 of Order XIV of the Code of Civil Procedure.
In view of this, atleast in this case, the judgment
given by the trial Court in this suit without
recording evidence does not look illegal. Thus, the
appeal stands dismissed.
( A. V. NIRGUDE, J. )
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