Municipal Board, Gorakhpur v. Gobardhan Das — 1980 DIGILAW 486 (ALL)

JUDGMENT R. S. Singh, J. -This is the defendants second appeal against the decree and judgment dated 24-2-1970, of the Civil Judge, Gorakhpur, reversing the decree of the trial court, by which the plaintiffs suit was dismissed. 2. The suit was filed by the plaintiff-respondent for refund of Rs. 1007.69 p. with interest pendente lite and future. It was alleged in the plaint that the plaintiff had exported cloth outside the limits of defendant the Municipal Board, Gorakhpur on 30-11-1963 and completed aril the formalities for refund of Octroi duty, which had been paid at the time of import. The prescribed form, duly filled in and verified was presented to the officer appointed for the purpose, but in spite of best efforts, the amount has not been refunded. A notice under Section 326 of the U. P. Municipalities Act hereinafter referred to as Act) has also been served. The plaintiff claimed amount due, together with interest at the rate of 9 per cent per annum. 3. The suit was contested by the defendant-appellant. It was alleged that the plaintiff did not export any cloth on 30th Nov. 1963. It was further alleged that the refund applications were forged and the plaintiff got signatures of 'the defendants employees in collusion with them. The plaintiff is not entitled to any amount nor is entitled to any interest. It was further alleged that the notice under Section 326 of the Act was not given and the suit is barred by limitation. 4. The trial court came to the conclusion that the plaintiff is entitled to recover Rs. 894.56 p. (Rs. 794.00 plus 100.56 p.) only from the defendant. It was further held that the notice under Section 326 of the Act was served on the defendant but the trial court was of the opinion that the suit is barred by time as the suit was not filed within 6 months of the cause of action. On account of the last finding of the trial court, the ; suit was ultimately dismissed. The plaintiff preferred an appeal against the decree and judgment of the trial court, which was allowed by the lower appellate court on the finding that the suit was not barred by limitation and the plaintiff is entitled to recover Rs. 894.56 together with pendente lite and future interest @ 4% per annum. The plaintiff preferred an appeal against the decree and judgment of the trial court, which was allowed by the lower appellate court on the finding that the suit was not barred by limitation and the plaintiff is entitled to recover Rs. 894.56 together with pendente lite and future interest @ 4% per annum. The defendant has filed this appeal against the decree and judgment of the lower appellate Court. 5. The only question involved in this case is whether the suit filed by the-plaintiff-respondent for recovery of money is within time or not. It depends on two factors. If notice under Section 326 of the Act is mandatory, in that case the limitation will be 6 months from, the date when the cause of action arose. In case, no such notice under Section 326 of the Act was necessary, it will be governed by Art. 120 of the Indian Limitation Act, 1908 and the 6 months rule of limitation will not be applicable in this case. 6. In this case, it is necessary to consider as to whether notice under Section 326 of the Act is mandatory or not. The learned counsel for the appellant relied upon Makkhan Lal v. Municipal Board, Agra, (1920) 54 Ind Cas 459 : (18 All LJ 180), wherein it has been held that as the suit was brought more than 6 months after the accrual of cause of action, it was barred by limitation. 7. The learned counsel for the respondent relied upon Zill Parishad v. Smt. Shanti Devi ( AIR 1965 All 590 : (1965- All LJ 221) (FB)) in support of his contention that Section 326 of the Act will not be applicable in the present case. In this Full Bench case, the plaintiff had brought a suit for recovery of money due in a contract for the work done by him. The contention of the defendant was that Section 192 of the District Boards Act was applicable in such a case and' the period of limitation was 6 months only. But it was held in that case that Section 192 of the District Boards Act did not apply to such a case. The contention of the defendant was that Section 192 of the District Boards Act was applicable in such a case and' the period of limitation was 6 months only. But it was held in that case that Section 192 of the District Boards Act did not apply to such a case. The earlier Full Bench decision in Dargahi Lal v. Kanpur Municipal Board ( AIR 1952 All 382 ): (1952 All LJ 122) was overruled by this larger Full Bench and it was observed that the payment of salary is an official: act as there are provisions in the Municipalities Act including rules, which require the Board to pay the salary, but there is no provision under the Act requiring or permitting it not to pay it and it has been further observed that an omission to rule, an act does not become official merely because an act, if done, could be official. It was, therefore, observed that if one is bound or expressly permitted to do a positive work, he does it in the official capacity. Similarly, if he is prohibited from doing an act or permitted not to do it his omission to do it, is an official act - but not otherwise. 8. In the present case, the officers of the Municipal Board under the rules are bound or permitted to refund the octroi in respect of the goods exported and necessary rules have been framed in this purpose. But there is no rule or provision prohibiting them from refunding the octroi or prohibiting them not to refund octroi in such circumstances. Under these circumstances, the non-payment of money to the plaintiff cannot be said to be an act. The provisions of Section 326 of the Act will not be applicable in such cases and the case will not be governed by 6 months limitation. 9. The cause of action in this case Had arisen on 30-11-1963 and at that time the Indian Limitation Act, 1908 was in force. Art. 120 of the Indian Limitation Act is applicable in this case, which provides 6 years limitation in such cases. Equivalent provision of the Limitation Act, 1963, which came into force in the year 1964 provides 3 years limitation under Section 113 of the new Limitation Act. Therefore, the original limitation of 6 years has not expired in this case. Art. 120 of the Indian Limitation Act is applicable in this case, which provides 6 years limitation in such cases. Equivalent provision of the Limitation Act, 1963, which came into force in the year 1964 provides 3 years limitation under Section 113 of the new Limitation Act. Therefore, the original limitation of 6 years has not expired in this case. According to Section 30 of the Limitation Act, the suit could have been filed within the period prescribed. The present suit was filed on 27-1-1967. Therefore, the suit was not barred by limitation and the plaintiff was entitled to recover Rs. 794 towards the octroi duty and Rs. 100.56 p. towards the interest . 4% per annum, as held by the courts below. 10. In view of what has been discussed above, I find no force in this appeal, which is accordingly dismissed. However, the parties shall bear their own costs.