Contention was also raised that the objection to limitation is based on Section 487 of the Bombay Provincial Municipal Corporations Act, 1949. Section 487(1) provides that 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 of 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, 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, nor (b) unless it is commenced within six months next after the accrual of the cause of action. Stress is laid on Clause (b) which provides that the suit has to be filed within six months next after the accrual of the cause of action. The contention is that since the cause of action is stated to have arisen in June and July, 1993 and the suit having been filed in January 1995, it is said to be beyond the period of six months next after the accrual of cause of action. However, while advancing this argument, the provisions of Sub-section (1) of Section 487 are totally ignored. Sub-section (1) of Section 487 provides that the limitation of six months in Clause (b) would apply in cases where "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." Apparently, the suits required to be filed within six months next after the accrual of the cause of action are in relation to the acts done or purported to have been done in exercise of the powers under the said Act or acts which are otherwise required to be done under the said Act having been neglected to be performed by such authorities. It does not refer to the acts which have been done de hors the provisions of the Act or in contravention of the Act. Any act performed by a statutory body de hors the powers under the Act or in contravention of the provisions of the Act cannot be said to be an act done or purported to be done in pursuance or execution or intended execution of the said Act and therefore merely by referring to the pleadings in the written statement such an issue cannot be decided. It will require recording of evidence to ascertain the exact nature of the act performed by the parties and whether such acts can be said to be acts done or purported to be done in pursuance or execution or intended execution of the said Act and for the same reason the parties would be entitled to lead evidence in the matter. Being so, the parties will have to establish certain facts in that regard before the Court could arrive at any conclusive finding on such aspect and hence such an issue cannot be considered as an issue purely of law but it will be an issue of law and facts which will require recording of evidence and considering the same, such an issue cannot be said to be in each and every case a preliminary issue.{Para 20}
Vs.
Respondent: St. Patrick's Town Co-operative Housing Society Ltd. and Ors.
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