Nathu Ram v. Nagar Palika, Orai — 1979 DIGILAW 1288 (ALL)

JUDGMENT Deoki Nandan, J. - This is a plaintiffs second appeal in a suit for recovery of Rs. 1139-95 P. from the defendant respondent which is the Nagar Palika of the town of Oral. 2. The plaintiffs case was that he had submitted a tender for repairing the stone flagging at several places in many mohallas of Orai, on 30th April. 1964 and his tender at the rate of Rs. 115/- per 100 square feet being the lowest, was accepted and approved by the District Magistrate, Jalaun on 22nd May, 1964. He commenced work and a running payment was not made to him in spite of his having completed further work which was measured by the Overseer, in the respondent Nagar Palikas measurement-book No. 20 (64-65) at pages 9 and 10 on 6th May, 1965, and consequently he had to abandon further work under the said contract. The total amount due for the work done by the plaintiff was Rs. 1689.91 p. and after deducting the running payment of Rs. 549.96 P. out of it, the sum. of Rs. 1139-95 P. was due to him which was not paid in spite of demands and he was finally informed by the defendant Nagar Palika by notice dated 18th July, 1966 that he would not be paid any. further amount. The plaintiff then served a notice dated 16th January, 1967 under section 326 of the U. P. Municipalities Act, which was duly served on the defendant Nagar Palika on 17th January, 1967 and filed a suit on 18th March, 1967, on the last date of the expiry of 8 months from the refusal of the Nagar Palika to pay the amount, due to him, which was taken to be the date of the accrual of the cause of action for the suit, by the plaintiff. 3. The defendant Nagar Palika pleaded that the work under the contract had to be completed in accordance with the estimate annexed to it. The estimate showed detailed quantities of the work to be done in different Mohallas, the total quantity of the work of stone flagging to be done according to that estimate was 8016 square feet. 3. The defendant Nagar Palika pleaded that the work under the contract had to be completed in accordance with the estimate annexed to it. The estimate showed detailed quantities of the work to be done in different Mohallas, the total quantity of the work of stone flagging to be done according to that estimate was 8016 square feet. According to the defendant Nagar Palika, the quality of the work done by the plaintiff in Mohalla Matapura was sub-standard which he failed to rectify in.spite of notice, and instead of the estimated quantity of 81 square feet of stone flagging to be done in Mohalla Matapura and 330 square feet of stone flagging to be done in Mohalla Vijai Nagar, the plaintiff contended that he had completed 246 square feet of work in Mohalla Matapura, 916 square feet in Gali Krishna Lal Maheshwari and 681 square feet in Mohalla Vijai Nagar, which was much in excess of the estimated quantity of 81 square feet, 331 square feet and 75 square feet respectively and his claim was altogether fictitious. The defendant Nagar Palika pleaded that is was accordingly not liable to pay for any such work done in excess of the contract. The plea of limitation was also raised, as a bar to the suit. It was also suggested that the plaintiff was liable for breach of the contract in having abandoned the work incomplete. 4. The trial court found on the first issue that the plaintiff did the work of repairs amounting to Rs. 1689-81 P. for the defendant, hut the same was not done under a valid contract; on issue no. 2 that the suit was filed within limitation; on issue no. 3 that there was no evidence to show that the plaintiff had removed any stone slabs belonging to the defendant; on issue no; 4 that the work done by the plaintiff was in excess of that for which he had tendered, and was thus done without any valid contract and that he could not have done so on the oral directions of the Overseer of the defendant Nagar Palika; and inasmuch as he refused to complete the remaining work under the contract, it was he who was guilty of having committed a breach of contract and not the defendant Nagar Palika; and on issue no. 5, it found that the Municipalities Act prohibits any work being done in pursuance of an oral agreement and the work having been done under a void contract, the plaintiff was not entitled to recover anything. 5. Before the lower appellate court only two points were pressed; one from the side of the plaintiff and the other from the side of the defendant. The plaintiff challenged the finding of the trial court that the work done by him was not done under a valid contract and the defendant challenged the finding of the trial court that that the suit was not barred by limitation. The lower appellate court found that the suit was barred by limitation and without deciding the other points raised by the plaintiff, dismissed the plaintiffs appeal and maintained the dismissal of his suit. 6. Learned counsel for the appellant urged before me that the finding of the lower appellate court on the question of limitation is plainly wrong. The 'Act of the defendant Board was its refusal to pay the amount when it was demanded, and that refusal having been communicated by the writing dated 18th July, 1967, the suit brought within 8 months from that date, was clearly within the limitation of six months prescribed by section 326 (3) of the U. P. Municipalities Act, after adding the period of 2 months for the notice required to be given under sub-section (1) of section 326 of the Act, vide - Section 15 (2) of the Limitation Act, 1963. The question, however, was whether the refusal of the respondent Nagar Palika by its writing dated 18th July, 1966 was the 'Act contemplated by section 326 of the U, P. Municipalities Act, or that the mere omission of the respondent Nagar Palika to pay the amount during the period when it remained unpaid after the execution of the work, was the 'act which gave rise to the cause of action under section 326 of the U. P. Municipalities Act. The lower appellate court referred to the full Bench- decision of this court in Antrim Zila Parishad v. Shanti Devi (1965 All LJ 221) and held that refusal to pay is definitely a positive act whereas the omission to pay) may not be an act as held by the Honble Court in this case. The lower appellate court referred to the full Bench- decision of this court in Antrim Zila Parishad v. Shanti Devi (1965 All LJ 221) and held that refusal to pay is definitely a positive act whereas the omission to pay) may not be an act as held by the Honble Court in this case. The lower appellate court then referred to another case reported in the same volume Panna Lal Kakkar v. Municipal Board. Agra (1965 All LJ 983) wherein it was- held that a suit filed by the plaintiff for recovery of the price of articles supplied to the Municipal Board cannot be said to be based on any act done by the Board in its official capacity and;, therefore, section 326 of the U.P. Municipalities Act has no application to it. The lower appellate court observed: that it was difficult to apply the law laid down in that case to the facts off the present case, but it is clear from, this decision that a mere omission by a Municipal Board to pay for the price of goods supplied or work done does-not attract the applicability of sections 326 of the U. P. Municipalities Act. It means that an omission to pay is not an act within the meaning of Section 392: (326). In the present case this suit-has been filed within 3 years of' the-date on which the work was done when the payment became due to the plaintiff and the question is not whether the' suit is barred by limitation for having-been filed more than 3 years beyond: the date when the payment became due to the plaintiff. The question is whether the suit is barred by limitation for having been filed beyond the period of limitation prescribed by section 326 of the U. P. Municipalities Act assuming that the refusal of: the respondent Nagar Palika to pay the. amount due, by its notice dated 18th-July, 1966 was an 'Act within the meaning of that provision. It has been seen above that even if it was so, the suit was filed within the, limitation prescribed by section 326. of-the Act. The lower appellate court, it seems missed the point in coming to the conclusion that the suit was barred by limitation. It has been seen above that even if it was so, the suit was filed within the, limitation prescribed by section 326. of-the Act. The lower appellate court, it seems missed the point in coming to the conclusion that the suit was barred by limitation. I am unable to subscribe to the reasoning adopted by the lower appellate court that the omission of the respondent Nagar Palika to pay in spite of demands made by the plaintiff, whether in writing or otherwise, although described by him as refusal so pay could be deemed to be an 'act of the respondent Nagar Palika, in as -much as the Nagar Palika is not supposed to do any 'act orally. Its 'act is reduced to writing and the first refusal to pay in writing was on 18th July, 1966, as alleged by the plaintiff. 7. This takes me to the consideration of the first question raised by the plaintiff before the lower appellate court that had been decided against him by the trial court, but on which the lower -appellate court has given no decision, namely, the question whether the quantity of work done by the plaintiff in -excess of the estimated quantity of the -work of stone flagging to be done in Mohallas Matapura, Vijai Nagar and 'Gali Krishnalal Maheshwari, was unsupported by any contract. The total estimated quantity of the work of stone flagging to be done under the contract was 8016 square feet in different Mohallas and the rate agreed was Rs. 115/-per 100 square feet. The estimated quantity of work to be done under a contract is always variable. The estimate quantities can always be varied. If any work is done in excess of the estimated quantity, it cannot be said to have been done without the authority of the contract so long as it is done for the authority concerned, the respondent Nagar Palika in the present case and on the directions of the officers who supervised the work. It is established in the present case that the excess work was done on the instructions of the Overseer of the respondent Nagar Palika. It was done for the Nagar Palika and the Nagar Palika did take the benefit of that work. It was shown to have been under the contract. It is established in the present case that the excess work was done on the instructions of the Overseer of the respondent Nagar Palika. It was done for the Nagar Palika and the Nagar Palika did take the benefit of that work. It was shown to have been under the contract. The mere fact that the quantity exceeded the estimated quantity of the work to be done in three Mohallas, where it was actually done, is of no consequence in the present case at least, inasmuch as it was much less than the total quantity of work authorised to be done under the contract which was 8016 square feet. I entirely fail to see how the work done by the plaintiff in the present case could be said to have been done without the authority of a contract in writing. 8. In the result the appeal succeeds and is allowed with costs. The plaintiffs suit for the recovery of Rupees 1139.85 P. is decreed with pendente lite and future interest at 6 per cent per annum and costs throughout.