JUDGMENT : ( 1. ) THE Municipal Council, Khandwa, has preferred this second appeal against the decree of Rs. 4,000 with costs and future interest passed by the lower appellate Court. ( 2. ) THE facts of the case in brief, are that the plaintiff (respondent) purchased on 17-1-1958 a house in Khandwa town from the Custodian, Evacuee property, for an alleged consideration of Rs. 8,500. Soon thereafter, the plaintiff applied on 24-2-1958 to the President, Municipal Council, Khandwa, for permission to repair as also for effecting some alterations in the house. That permission was refused by the President as per communication dated 9-4-1958 (Ex. P-7) on the ground that the Municipal Council was contemplating the acquisition of the house for widening the road. Till this date no action under the Land Acquisition Act was taken. On this, the plaintiff again sent an application dated 28-4-1958 (Ex. P-5) in which it was stated that it was very essential to effect repairs and if the same were not allowed, the house was likely to collapse in the rainy season and that if such permission was not granted within seven days, the Municipal Council would be held responsible for the consequent damages resulting from the collapse of the house. The plaintiff was thereupon informed by letter dated 21-5-1958 (Ex. P-6) that if the repairs of the Chhat were effected, there was no possibility of the house collapsing. The Municipal council was, however, not taking a ay responsibility presumably for the costs incurred in repairs-as the Municipal Council had decided to pull down the house for widening the road. After this, the plaintiff sent another letter dated 4-6-1958 (Ex. P-13) to the effect that the plaintiff was repairing the Chhat as per the direction of the Municipal Council; but if in spite of this, the house was damaged in any way, the Municipal Council would be held responsible. The Municipal Council was called upon to state if the compensation paid by the Municipal Council would also include the losses suffered by the plaintiff resulting from loss of rent because of the refusal to effect the repairs prayed for. On this, the President directed the Secretary to explain the situation to the plaintiff personally. It appears that the plaintiffs representative attended the office of the Municipal Council and that there were some negotiations also for purchasing the property privately, but without any result. On this, the President directed the Secretary to explain the situation to the plaintiff personally. It appears that the plaintiffs representative attended the office of the Municipal Council and that there were some negotiations also for purchasing the property privately, but without any result. Nothing happened thereafter for about a period of 21/2 years. ( 3. ) ON 22-9-1961, however, the Municipal Council issued a notice (Ex. D-6) to the plaintiff to the effect that the plaintiffs house, which was under land acquisition proceedings, had become unsafe for human residence and that the plaintiff should immediately demolish the dangerous portions thereof and if the plaintiff failed to do so, the Municipal Council would be required to demolish the same On this, a notice dated 24-10-1961, purporting to be one under section 48 of the C. P. and Berar Municipalities Act was sent by the plaintiff to the Municipal Council. In this notice it was stated that the house required major repairs, alterations and new constructions to suit the requirements of the plaintiff and her application for such a permission was rejected by the Municipal Council on the ground that the house was to be acquired. The Municipal Council, however, did not initiate the land acquisition proceedings; nor did it acquire the house by private negotiations. The act of the refusal of the Municipal Council to grant sanction and its failure to acquire the house immediately was with a view to see that the house collapsed for want of repairs and making it possible for the Municipal Council to acquire the same cheaply. It was stated that as a result of the negligence, misconduct and disregard of the duties by the authorities of the Municipal Council the house had suffered extensive damages and was likely to collapse any day. The damage already sustained was to the extent of Rs. 4,000. The Municipal Council was, therefore, called upon to pay the damages immediately and also to grant the necessary permission for effecting the repairs immediately. It was stated that for the necessary permission a fresh application was being filed. After this notice, a formal application for repairs and additional construction was filed on 2-11-1961 and a reminder was sent to the Municipal Council on 3-12-1961 that a suit for damages would be filed if permission was not granted immediately. It was stated that for the necessary permission a fresh application was being filed. After this notice, a formal application for repairs and additional construction was filed on 2-11-1961 and a reminder was sent to the Municipal Council on 3-12-1961 that a suit for damages would be filed if permission was not granted immediately. It may be noted that in that reminder it was asserted that the house was not in such a dilapidated condition as would require demolition This was perhaps in reference to the notice given by the Municipal Council on 22-9-1961. ( 4. ) THE plaintiff ultimately filed the present suit f>r recovery of damages of Rs. 4,000 on 24-4-1962. In the plaint it was urged that because of the misconduct of the officers of the Municipal Council in not granting permission for repairs and alterations major part of the house collapsed and that the plaintiff was entitled to Rs. 4,000 for the damage suffered by the plaintiff on account of the acts or omissions of the officers of the Municipal Council. ( 5. ) THE defence was that the Municipal Council was within its right in refusing the permission to repair, reconstruct and make alterations in the house, as the house in question was to be acquired for widening the road. It was denied that the action of the President in refusing the permission was mala fide or deliberately dishonest. It was, therefore, denied that the plaintiff had suffered any damage on account of any illegal act on the part of the employees of the Municipal Council or its President. ( 6. ) THE trial Could held that the defendant was not justified in refusing permission to repair the building, but the claim for damages was negatived on the ground that the plaintiff failed to prove the extent of damages resulting from the misconduct of the defendants employees. It was also held that the claim was barred by limitation. ( 7. ) THE lower appellate Court, however, held that the plaintiffs claim, in substance, was that during the years the permission was refused the house gradually deteriorated and on the date of the suit major portion thereof had fallen down and that the house had reached a stage when it had become necessary to pull down the whole house and reconstruct it afresh. Inasmuch as there was some evidence to show that the house, when it was purchased by the plaintiff was worth about Rs. 8,500 and inasmuch as some witnesses estimated the value of the land at Rs. 4,000 the lower appellate Court held that the estimate of damages at Rs. 4,000 by the plaintiff was not unreasonable. In other words, the lower appellate Court was of the opinion that the claim of the plaintiff was not on the basis of the damages sustained by her but it was on the basis of the expenses that she would be required to incur in reconstructing the whole house afresh. ( 8. ) ON the question of limitation, it was conceded that the suit should have been filed within 10 months of the cause of action, but it was held that the cause of action was not furnished by the refusal of the Municipal Council to permit repairs but it arose on the date on which major portion of the house collapsed and thus it became necessary for the plaintiff to re-build the house afresh. It was held that from 1958 the deterioration started and it was completed in the month of June or July 1961. From that date it was held that the suit was within time, as it was filed within 10 months of that event. ( 9. ) IT was also held by the lower appellate Court that the defendants refusal to permit repairs resulted in gradual deterioration of the house and its ultimate collapse. The plaintiff was not in a position to arrest the deterioration, as she was prevented from doing so because of the refusal of the defendant-Council to permit repairs On this reasoning it was further held that no question could arise in this case of the plaintiff mitigating damages ( 10. ) WHEN it was brought to the notice of the lower appellate Court that there was no provision in the C. P. and Berar Municipalities Act or the Bye-laws making it obligatory for the plaintiff to seek the permission of the President of the defendant-Council for repairs, it was held by the lower appellate Court that though there was no such provision, there was a practice in that behalf and hence it was necessary for the plaintiff to seek the permission. When it was urged that in that case the plaintiff should have filed an appeal against the order of the President refusing the necessary permission and that the plaintiffs failure to do so prevented her from putting up the claim for damages, the lower appellate Court held that no appeal could have been preferred against the Presidents order, as there was no provision under the Municipalities Act which required permission of the President for repairs. It may be noted at this stage that the above said two findings are mutually contradictory. In this view of the matter, the appeal was allowed and the plaintiffs claim for Rs. 4,000 with costs was decreed. The defendant has, therefore, preferred this second appeal. ( 11. ) THE defendant has challenged before me all the adverse findings of lower appellate Court. ( 12. ) THE first question that arises for my consideration is as to whether the President of the Municipal Council refused permission to effect repairs and, if so, that refusal resulted in the ultimate collapse of the house. The first application said to have been filed by the plaintiff for this purpose is not on record ; but the reply given by the President to the said application clearly shows that the application was for construction of the house. The reply is to the following effect: It is possible that that application might have also sought permission to effect some repairs as well. That is the reason why in the Memo dated 3-3-1953, sent by the Secretary to the plaintiff, there is a mention of the application dated 24-2-1958 for permission to repair the house. But that memo requires the plaintiff to file the maps within a stated period. This clearly shows that the application was not merely for repairs but it was a composite application for repairs as well as for re-construction or fresh construction to certain extent. That is the reason why in the order dated 7-4-1958 there is only refusal for re-construction of the house and not for repairs, as under the C. P. and Berar municipalities Act, 1922, no such permission was necessary. Under section 98 of that Act permission of the President is necessary only for the purposes of erecting or re-erecting any building. On refusal of the permission the plaintiff sent another letter dated 28-4-1958 (Ex. Under section 98 of that Act permission of the President is necessary only for the purposes of erecting or re-erecting any building. On refusal of the permission the plaintiff sent another letter dated 28-4-1958 (Ex. P-5) in which it was urged that if the plaintiff was not allowed to make repairs, there was a possibility of the house being damaged in the rainy season and if any damage was done, the Municipal council would be held responsible for the said damage. In reply to that application, the plaintiff was informed that as per the opinion of the Overseer if the roof was re-tiled, there was no possibility of the house falling down but that the Municipal Council could not be held responsible for the cost of repairs because ultimately the Municipal Council had to pull down the house after acquisition for the purposes of widening the road. It appears that, after this the roof was repaired by the plaintiff; but no attempt was made to repair the cracks that had appeared in some of the walls of the house. It also appears that the plaintiff was not keen on spending a large amount on repairs of the house because of her apprehension that it might be acquired. The ultimate collapse of the house was, therefore, not because of the refusal of the President to grant permission for repairs but it was because of the reluctance of the plaintiff to spend substantial amount on repairs. It was, however, urged that the plaintiff was entitled to get certain additions made to her house so as to make it more comfortable and more remunerative. In that case alone the plaintiff could have been expected to spend on substantial repairs. The refusal of the President to sanction re-construction as prayed for was, therefore, responsible for the ultimate deterioration of the house. Inasmuch as the president arbitrarily and illegally refused permission to reconstruct, the municipal Council must be held responsible for the deterioration of the house and consequent damages to the plaintiff, I am not prepared to accept the contention of the plaintiff that the President had no right to refuse re-construction. Inasmuch as the president arbitrarily and illegally refused permission to reconstruct, the municipal Council must be held responsible for the deterioration of the house and consequent damages to the plaintiff, I am not prepared to accept the contention of the plaintiff that the President had no right to refuse re-construction. Sub-section (2) of section 99 of the Municipalities Act, 1922, provides that the President shall not refuse to sanction the erection or re-erection of a building otherwise than on grounds affecting the particular building, or in the interests of the residents of the locality, or because adequate provision has not been made for the laying out and the location of streets, or in pursuance of a general scheme sanctioned by the State Government restricting the erection or re-erection of buildings or any class of buildings within specified limits for the prevention of overcrowding or for the location and laying out of streets. Now, the Municipal Council had already taken a decision to widen the street and for that purpose to acquire the house of the plaintiff. The President, therefore, in my opinion, was justified in refusing permission for re-building or making any additions to the building in the interests of the residents of the locality. In any case, at best, the order was not strictly within section 99 of the Act, but it could not be said to be a mala fide order giving rise to a claim for damages. It was the duty of the plaintiff to prefer an appeal against the order of the President refusing permission to re-erect the building or making any additions thereto and to seek proper redress from the appellate authority. This the plaintiff failed to do. On the contrary, it appears that the plaintiff was satisfied with the repairs that were permitted by the President. This is clear from the fact that between 1958 to 22-9-1961 no further application was made by the plaintiff to seek any permission from the Municipal Council to effect any repairs or for permission to grant sanction for re-erecting the building or making any additions to the building. This is clear from the fact that between 1958 to 22-9-1961 no further application was made by the plaintiff to seek any permission from the Municipal Council to effect any repairs or for permission to grant sanction for re-erecting the building or making any additions to the building. It is only after 22-9-1961, as has already been pointed out, that the plaintiff sent the notice dated 24-10-1961, purporting to be one under section 48 of the C. P. and Berar Municipalities Act, in which it was stated that the house required major repairs, alterations and new constructions to suit the requirements of the plaintiff and as the permission was rejected by the Municipal Council to effect the same, the plaintiff had suffered extensive damages and the house was likely to collapse and that the municipal Council was liable to pay Rs. 4,000 towards damages. This notice was sent, it appears, only because on 22-9-1961 the Municipal Council had issued a notice for demolishing the house, as it had become unsafe for human residence. I have already noted that on 2-11-1961 a fresh application for repairs was filed. All this clearly shows that the plaintiff is now trying to rely on the previous refusal of the President, in which the plaintiff had acquiesced, to bolster up her claim for damages. That the plaintiff cannot be allowed to do. I am, therefore, of the view that the ultimate damage that the plaintiff suffered was not as a direct result of the refusal of the President to sanction reconstruction of the house or making any additions to it. From the evidence of the plaintiffs witness, Dhanalal (P. W. 1), it would appear that the plaintiff desired to construct a new bath-room and a new latrine ; rest of the work was of repairs. The work of repairs consisted of changing the tiles of the roof of the house, repairing the cracks in the walls and repairs of the floor. This witness also stated that the work of repair could be effected even without construction of the bath-room and the latrine. According to this witness, if the tiles would have been changed and the cracks would have been repaired, which would have cost about Rs. 300 to Rs. 400, the house would not have fallen down. This witness also stated that the work of repair could be effected even without construction of the bath-room and the latrine. According to this witness, if the tiles would have been changed and the cracks would have been repaired, which would have cost about Rs. 300 to Rs. 400, the house would not have fallen down. This evidence clearly shows that it was possible for the plaintiff to effect repairs of the house to save it from falling down and the re-construction of any portion of the building was not essential for the purpose. This fortifies my conclusion that the plaintiff is trying to make use of the refusal of the President to permit re-construction for saddling the Municipal Council with damages. The plaintiffs claim must, therefore, be negatived on this ground alone ( 13. ) I am also of the opinion that the lower appellate Court was in error in holding that the plaintiff was entitled to claim damages on the basis of cost of re-construction of the whole house. It has come on record that the house was about 50 years old. There is no evidence on record to show as to what was the value of the building minus the value of the land on the day the permission was refused. There is also no evidence on record to show as to what was the value of the building, which was standing on the date of the notice or on the date of the suit. That data alone could have furnished the basis for determining the quantum of damages sustained by the plaintiff because of the alleged wrongful refusal of the President. No such evidence has been tendered by the plaintiff. The trial Court was, therefore, right in negativing the claim on the ground that the damages were not proved by the plaintiff. The lower appellate Court was not justified in granting damages on the basis of cost of re-con-struction only because the plaintiff sought relief on that basis. The lower appellate Court has also failed to take into consideration the cost of the material which the plaintiff has removed. ( 14. ) I am also of the view that the lower appellate Court was wrong in holding that there was necessity of seeking permission for repairs of the house because of any alleged practice. The lower appellate Court has also failed to take into consideration the cost of the material which the plaintiff has removed. ( 14. ) I am also of the view that the lower appellate Court was wrong in holding that there was necessity of seeking permission for repairs of the house because of any alleged practice. Not only there is no provision to this effect in the Municipalities Act, 1922, or the Bye-laws framed thereunder, but there is also admission by Athama Ram (P. W. 3) that he had effected repairs in two houses purchased by him at the same time and that he was not required to take permission from the Municipal Council, as there was no such necessity or practice. The lower appellate Court was, therefore, in error in relying on any such practice. The lower appellate Court appears to have relied on the evidence of Ganpati (P. W. 2), a retired Overseer of the Municipal Council, in holding that if the cost of repairs exceeded Rs. 500, permission of the Municipal Council was necessary. The lower appellate Court, however, failed to note that the witness was forced to admit in cross-examination that unless the repairs required alteration, no permission of the Municipal Council was necessary. Narmada Prasad (P. W. 5), the Secretary of the Municipal Council, has also stated that if the repairs involved re-construction, in that case alone permission is necessary. It must, therefore, be held that the lower appellate Court was in error in holding that it was necessary for the plaintiff to seek permission for repairs and the wrongful Refusal by the President to allow the repairs resulted in damage to the building, I have already held that the president was within his rights in refusing the permission to re-construct the house. It, therefore, follows that no cause of action was furnished by any wrongful act of the President or of officers of the Municipal Council and that the plaintiffs claim is ill-founded. ( 15. ) ON the conclusions I have reached it is not necessary for me to decide as to whether the suit was barred by limitation or not. ( 16. ( 15. ) ON the conclusions I have reached it is not necessary for me to decide as to whether the suit was barred by limitation or not. ( 16. ) THE appeal is thus allowed, the decree of the lower appellate Court is set aside and the decree of the trial Court dismissing the plaintiffs suit is confirmed In the circumstances of the case I direct that the costs of the first appeal as well as of this Court shall be borne by the parties. Appeal allowed.