Judgment : 1. The present second appeal has been filed against the judgment and decree dated 03.04.1997 passed by learned Additional District Judge No.2, Sri Ganganagar in Civil Appeal No.6/95 whereby the judgment and decree dated 07.09.1993 as passed by learned Civil Judge, Suratgarh in Civil Original Suit No.25/86 was affirmed on the ground of being barred by limitation. 2. The appeal was admitted on 30.07.1997 and following substantial questions of law were framed:- “1. Whether the suit will be governed by the provisions of Section 271 of the Rajasthan Municipalities Act, 1959? 2. Whether the provisions of Section 271 of the Rajasthan Municipalities Act override the provisions of Limitation Act, 1963? 3. Whether the Courts below have exercised discretion in the matter of grant of interest correctly?” 3. Brief facts of the case giving rise to this appeal are that the plaintiff-appellant filed a suit for recovery of Rs. 5,000/- as damages on account of wrongful withholding of 31 bundles of matchboxes due to non-payment of octroi duty. The plaintiff's case is that on 15.10.1985, while entering Suratgarh with 31 bundles of matchboxes brought from Rangmahal, he stopped his jeep at the octroi barrier near the Railway Gate and since no employee was present there, he waited at the barrier for half an hour. With a bonafide intent to pay the octroi duty, he then proceeded towards the octroi barrier at the Bus Stand. When he had moved his vehicle for about 30–40 feets, one Roshan Lal, the Vice President of the Municipality, stopped him and inquired about his movement. The plaintiff informed him that he was proceeding towards the next octroi barrier situated at the Bus Stand to deposit the octroi duty for 31 bundles of matchboxes. He also offered the octroi duty to Roshan Lal, but he refused the same. However, Roshan Lal got unloaded the bundles from the jeep and seized them, and did not even pass any order in this regard. 4. On the same day, at about 4:10 P.M., he submitted an application before the Municipality, Suratgarh, offering to deposit the octroi duty for the release of the goods. However, the Municipality did not take any action. On 22.10.1985, he sent a demand draft of Rs. 45.25 towards the payment of octroi duty, but the Municipality returned the same on 25.10.1985 without passing any order, and merely indicated that the matter was pending. 5. However, the Municipality did not take any action. On 22.10.1985, he sent a demand draft of Rs. 45.25 towards the payment of octroi duty, but the Municipality returned the same on 25.10.1985 without passing any order, and merely indicated that the matter was pending. 5. A notice under Section 271 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as "the Act of 1959") was served on 17.12.1985. As more than two months had elapsed since the issuance of the notice, the plaintiff prayed for awarding of compensation. He claimed the following amounts as compensation i.e. Rs. 2,790/- as the cost of 31 bundles of matchboxes, Rs. 2,000/- on account of loss of profit, and Rs. 210/- as interest at the rate of 12%. Thus, the total amount claimed in the suit was Rs. 5,000/-. 6. The defendants denied the allegations as made in the plaint and contended that the goods were lawfully seized by the respondents, as the plaintiff had only offered actual amount of octroi duty. However, in cases of willful non-payment of the duty and bringing of goods without paying the octroi duty, a penalty at the rate of ten times of the duty is required to be paid. Since this penalty was not paid by the plaintiff, his demand draft was not accepted and was returned. 7. It was also contended by the defendants that there were not merely 31 bundles of matchboxes, but a total of 800 bundles of matchboxes. By fabricating the bill, the plaintiff had attempted to evade octroi duty. In this regard, FIR was lodged by the Municipality, which was pending consideration. Thus, a decision regarding the release of the goods can only be taken after the disposal of the FIR. It was also submitted by the defendants that the cause of action has arisen on 22.10.1985, whereas the suit was filed on 05.11.1986. Therefore, as per the provisions of Section 271 (2) of the Act of 1959, the suit ought to have been filed within six months from the date when the cause of action has arose. Since the suit was filed beyond the prescribed period of six months, it is liable to be dismissed. 8. Therefore, as per the provisions of Section 271 (2) of the Act of 1959, the suit ought to have been filed within six months from the date when the cause of action has arose. Since the suit was filed beyond the prescribed period of six months, it is liable to be dismissed. 8. The learned Trial Court framed the following issues:- ^^1- D;k izfroknh us f[kykQ dkuwu QeZ oknh ds eky dks jksdk gqvk gS tcfd oknh pwaxh vnk djus ds fy;s rS;kj Fkk \ 2- D;k oknh 90 #- izfr c.My ds fglkc ls eky dh dher 2790 #- gtkZuk izkIr djus dk vf/kdkjh gS \ 3- D;k oknh 2000 #- gtkZuk izkIr djus dk vf/kdkjh gS \ 4- D;k oknh 12 izfr'kr ds fglkc ls lwn ikus dk vf/kdjh gS \ 5- D;k jks'kuyky izfroknh ua- 1 O;fDrxrrkSj ij vnk;xh dk ftEesokj gS \ 6- D;k oknh us igys 800 c.My ekfpl dh pwaxh pksjh dh Fkh ftldh ckcr iqfyl dsl py jgk vxj ,slk rks nkos ij D;k vlj \ 7- nknjlh \ 9. Issue No.6A was subsequently framed on 24.08.1993 which reads as under:- ^^6,- D;k nkok vUnj fe;kn gS \^^ 10. The Trial Court, after considering the record and the material available, decided Issue Nos. 1 and 6 against the plaintiff. Issue No. 5 was also decided against the plaintiff. Issues Nos. 3 and 4 were decided in favor of the defendants. Issue No. 6A was decided against the plaintiff, and Issue No. 2 was also decided against the plaintiff. Based on the findings on these issues, the suit of the plaintiff was dismissed vide judgment and decree dated 07.09.1993. 11. Being aggrieved, the plaintiff preferred an appeal before the First Appellate Court. The Appellate Court vide judgment and decree dated 03.04.1997 decided Issues No.1 and 6 in favour of the plaintiff by reversing the finding of the Trial Court and held that the defendants had illegally seized and withheld the 31 bundles of match-boxes inspite of the fact that the plaintiff was willing to pay the octroi duty on basis of the documents (Exhibit No. 1 to 4). The finding on Issue No. 2 was also set aside by the First Appellate Court, and the issue was decided in favour of the plaintiff. Issue No. 3 was decided against the plaintiff, as he failed to prove the loss of Rs. 2,000/- as claimed. The finding on Issue No. 2 was also set aside by the First Appellate Court, and the issue was decided in favour of the plaintiff. Issue No. 3 was decided against the plaintiff, as he failed to prove the loss of Rs. 2,000/- as claimed. Issue No. 4, relating to the claim for interest on the suit amount, was also decided against the plaintiff by the Appellate Court. Issue No. 5 was decided against the plaintiff. Issue No. 6A, with regard to limitation was also decided against the plaintiff, and consequently, the appeal was rejected vide judgment and decree dated 03.04.1997. 12. Being aggrieved, the appellant had preferred the present second appeal and consequently this Court had framed the substantial questions of law as mentioned above. 13. Counsel for the appellant submitted that as Issues No. 1 and 6 were decided by the Appellate Court in favour of the appellant, and the Appellate Court has held that the defendants had illegally withheld the plaintiff’s goods despite his willingness to pay the octroi duty, the suit ought to have been partly decreed in favour of the plaintiff but the Court did not pass the decree as the learned Appellate Court while deciding Issue No.6A found the suit to have been filed beyond the period of limitation as provided under Section 271 (2) of the Act of 1959. 14. Counsel for the appellant also argued that the action of the respondents in withholding the material was found to be illegal by the First Appellate Court while recording its finding on Issue No. 1. Despite this finding, the application of the provision of Section 271 (2) of the Act of 1959 was not correct, as the action taken by the respondents was neither in consonance with their official duties nor their act could be said to be done or purported to have been done by the Municipality in its official capacity as no illegal act of the Board can be said to be in its official capacity. 15. Counsel for the appellant has placed reliance on the following judgments: 1. M/s. J.K. Industries Ltd., Kankroli Vs. The Municipal Board, Rajsamand; AIR 1997 Rajasthan 42 2. Municipal Council, Jodhpur Vs. M/s. Parekh Automobiles; (1980) WLN 107 3. Firm Surajmal Banshidhar etc. Vs. Municipal Board, Ganganagar ; (1979) 1 SCC 303 16. Heard learned counsel for the appellant and perused the record. M/s. J.K. Industries Ltd., Kankroli Vs. The Municipal Board, Rajsamand; AIR 1997 Rajasthan 42 2. Municipal Council, Jodhpur Vs. M/s. Parekh Automobiles; (1980) WLN 107 3. Firm Surajmal Banshidhar etc. Vs. Municipal Board, Ganganagar ; (1979) 1 SCC 303 16. Heard learned counsel for the appellant and perused the record. No one is present for the respondents to oppose the arguments as advanced by the counsel for the appellant. 17. This Court finds that the defendant Municipality has not filed any cross-objections regarding Issues No. 1 and 6. Therefore, this Court cannot interfere with the findings of fact recorded by the learned appellate Court in its judgment and decree dated 03.04.1997. The dismissal of the suit by the appellate Court is solely on the ground that the suit was not filed within the limitation period as prescribed under Section 271 (2) of the Act of 1959, as held under issue No.6A. 18. This Court finds that the first appellate Court had decided issue No.1 and 6 in favour of the appellant and has recorded a finding of fact that the goods of the plaintiff were illegally withheld by the defendants despite his willingness to pay the octroi duty. In such circumstances, the action of the respondents cannot be said to have been done in respect of an act or purported to have been done in its official capacity as the official capacity never permit any person to do illegal act and no illegal act by any public servant can be said to have been done in the official capacity. Therefore, the act of the respondents cannot be held to have been done in their official capacity or even purportedly so, and as such, the provisions of Section 271 (2) of the Act would not apply. 19. A similar issue arose in the case of M/s. J.K. Industries (supra) wherein this Court has held as under:- “7. I now come to the question of limitation. Section 271 of the Act lays down that no suit shall be instituted against a board or against the chairman, vice-chairman, member, officer or servant of board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice thereof in writing has been given. Sub-section (2) of Section 271 provides that no action as described in Sub- section (1) shall be commenced otherwise than within six months next after the accrual of the cause of action. The exception to this is that if it is an action in respect of recovery of immovable property or for a declaration of title, the limitation provided in the section of six months shall not apply. On plain and simple reading of Sub-sections (1) and (2) of Section 271 , the suit has to be filed within six months of accrual of cause of action against Municipal Board, chairman, vice-chairman, member, officer or servant of the board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity. Thus, the limitation of six months shall only apply if the act or action complained of is done or purported to have been done by the Municipal Board or its officer in his official capacity, that is to say within the permissible limits in which the officer or Municipal Board is clothed with the powers to act under the provisions of the Municipality Act or the Rules framed thereunder or under any notification, bye-laws, instructions issued thereunder.” 20. Since the learned appellate Court itself found the action of the respondents in withholding the goods of the plaintiff as illegal, despite this, the appellate Court while deciding Issue No. 6A, dismissed the suit on the ground of limitation by applying the provisions of Section 271 (2) of the Act incorrectly. This Court finds that the learned appellate Court committed an error in applying the provisions of Section 271 (2) of the Act as the action of the respondents was already held to be illegal. In no case an illegal act of a public servant cannot be said to have been done in the discharge of official duty or in their official capacity. Therefore, the appellate Court erred in deciding Issue No. 6A against the plaintiff-appellant and, as a consequence, wrongly dismissed the suit. 21. Since this Court finds that the decision on Issue No. 6A as rendered by the first appellate Court deserves to be set aside, the substantial Questions No. 1 and 2 are answered accordingly. Therefore, the appellate Court erred in deciding Issue No. 6A against the plaintiff-appellant and, as a consequence, wrongly dismissed the suit. 21. Since this Court finds that the decision on Issue No. 6A as rendered by the first appellate Court deserves to be set aside, the substantial Questions No. 1 and 2 are answered accordingly. As the learned appellate Court had already found the action of the respondents to be illegal, therefore, such action cannot, in any manner, be deemed to have been taken under the provisions of Section 271 of the Act. Consequently, the provisions of Section 271 of the Act are not applicable, and the general law of limitation would apply. 22. The next substantial question of law to be answered by this Court is Question No. 3. Since the learned appellate Court had found the action of the respondents to be illegal but rejected the suit solely on the ground of Issue No. 6A with regard to limitation and this Court has found that Issue No. 6A was wrongly decided by the learned appellate Court and the said issue has been decided and answered in Questions No. 1 and 2 as above, therefore this Court finds that since the withholding of the plaintiff’s goods was illegal, the plaintiff is entitled to the cost of his goods amounting to Rs. 2,790/-. This Court is also of the firm opinion that withholding of the goods and failure to return the same by the Municipality have caused the plaintiff a loss amounting to Rs. 2,790/- and this entitles the plaintiff an interest at the rate of 9% per annum from the date of filing the suit until payment. Accordingly, Issue No. 4, as decided by the learned appellate Court stands decided in this manner, and the substantial Question No. 3 is answered accordingly. 23. Based on the answers of the substantial questions of law, the present second appeal is allowed . The judgments and decree dated 3.4.1997 and 7.9.1993 are set aside. The suit of the plaintiff is decreed in the terms that the plaintiff is entitled for a sum of Rs.2790/- as cost of his goods along with interest at the rate of 9% per annum from the date of filing of the suit till payment. The decree may accordingly be prepared. 24. There shall be no order as to costs. 25. All pending applications stand disposed of.