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2013 DIGILAW 1047 (MP)

I. B. Mishra v. Nagar Panchayat, Sohagpur

2013-09-03

ALOK ARADHE

body2013
JUDGMENT Alok Aradhe, J. 1. This appeal is by the plaintiff which was admitted by a Bench of this Court on the following substantial question of law: “Whether on the basis of material on record the suit can be said to be barred by limitation?”. 2. The facts, giving rise to filing of the appeal, briefly stated are that the plaintiff was employed as upper division clerk in Nagar Panchayat, Sohagpur and superannuated on 31-10-1997. The Local Self Administration, Government of M.P. vide an order dated 11-3-1996 clarified that it has no objection to grant leave encashment to the employees of the local bodies. Thereafter, the Nagar Panchayat passed a resolution by which it was decided to extend the benefit of earned leave to its employees. On 27-6-1996 the plaintiff was entitled to 240 days' earned leave. The plaintiff thereupon filed an application for encashment of earned leave. However, the aforesaid application was rejected vide order dated 17-2-1997. Thereafter the plaintiff filed the suit on 9-9-1998 seeking the relief of declaration that he is entitled to receive a sum of Rs. 45,200 on account of leave encashment for a period from 1-1-1997 to 30-4-1997 along with interest. 3. The defendants 3, 4 and 5 denied the claim of the plaintiff. The defendant No. 6 in its written statement raised an objection with regard to maintainability of the suit on the ground that no notice under section 319 of the M.P. Municipalities Act, 1961 (hereinafter referred to as 'the Act') has been given to the defendant No. 6 before institution of the suit, therefore, the suit is not maintainable. 4. The trial Court vide judgment and decree dated 16-5-2002 inter alia held that the plaintiff is entitled to a sum of Rs. 42,200/- on account of leave encashment. It was further held that the suit filed by the plaintiff is maintainable in the absence of notice under section 319 of the Act. Accordingly, the suit filed by the plaintiff was partly decreed. The lower appellate Court inter alia held that on 17-2-1997 the application preferred by the plaintiff was rejected by the defendant No. 6 Municipal Council. However, the plaintiff had not filed the suit within a period of eight months therefrom but has filed the same on 9-9-1998 and therefore, the suit is barred by limitation. Accordingly, the claim of the plaintiff was dismissed. 5. However, the plaintiff had not filed the suit within a period of eight months therefrom but has filed the same on 9-9-1998 and therefore, the suit is barred by limitation. Accordingly, the claim of the plaintiff was dismissed. 5. Learned counsel for the appellant submitted that the lower Appellate Court grossly erred in reversing the well reasoned judgment and decree passed by the trial Court and in not appreciating the fact that the suit filed by the plaintiff was within limitation. On the other hand, learned counsel for the respondents submitted that the suit filed by the plaintiff was barred by limitation in view of section 319(2) of the Act and mere submission of repeated representations, does not give rise fresh cause of action. It is further submitted that the lower Appellate Court in the facts of the case rightly held that the suit filed by the plaintiff is barred by limitation. In support of his submissions, learned counsel for the respondents has placed reliance on the decision in Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998(2) MPLJ (S.C.) 422 = (1998) 6 SCC 514 and has also invited the attention of this Court to paragraphs 4 and 9 of the aforesaid decision. 6. I have considered the respective submissions made by learned counsel for the parties and have perused the record. The relevant extract of section 319 of the Act reads as under: “319. Bar of suit in absence of notice - (1) No suit shall be instituted against any Council or any Councillor, officer or servant thereof or any person acting under the direction of any such Council, Councillor, officer or servant for anything done or purporting to be done under this Act, until the expiration of two months next after a notice, in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a Council delivered or left at its office, and, in the case of any such member, officer, servant or person as aforesaid, delivered to him or usual place of abode, and the plaint shall contain a statement that such notice has been so delivered or left. (2) Every such suit shall be dismissed unless it is instituted within eight months from the date of the accrual of the alleged cause of action.” 7. (2) Every such suit shall be dismissed unless it is instituted within eight months from the date of the accrual of the alleged cause of action.” 7. Thus, from perusal of section 319(1) it is apparent that notice has to be given to the Municipal Council in respect of anything done or purporting to be done under the Act. If the suit is filed by the plaintiff in respect of anything done or purporting to be done under the Act then provision of section 319 of the Act would be attracted. The action of the respondent in withholding the amount which is due to the appellant on account of leave encashment cannot be said to be an act done or purporting to be done under the provisions of the Act therefore, the provisions of section 319 of the Act has no application in the facts of the case. Similar view has been taken by a Bench of this Court in Indore Nagar Palika Nigam v. Ramakant, 1982 MPWN 182 (S.N. 133). The trial Court has held that on 28-3-1998 the cause of action accrued to the plaintiff and the suit was filed on 9-9-1998 i.e. well within limitation. As stated supra, since the provisions of section 319 of the Act do not apply in the facts of the case therefore, the suit has rightly been held to be within limitation by the trial Court. 8. For the aforementioned reasons, the substantial question of law framed by this Court is answered in the negative and in favour of the appellant. Accordingly, the judgment and decree passed by the lower Appellate Court are set aside and that of the trial Court are restored. 9. In the result, the appeal is allowed with costs. Appeal allowed.