Patna High Court
Chairman And Commissioners Of ... vs Gobind Sao on 20 January, 1937
Equivalent citations: 169IND. CAS.364, AIR 1937 PATNA 360
JUDGMENT Fazll All, J.
1. This is an application by the Chairman and the Commissioners of the Chaibassa Municipality whose suit for the recovery of Rs. 233-4-0 has been dismissed by the Small Cause Court Judge of Chaibassa. It appears that in exercise of the powers conferred by the Bihar and Orissa Municipal Act, the Municipality has established a market in Chaibassa and the right to collect the tolls in that market was settled with the defendant for the years 1931 and 1932 for a sum of Rs. 560. The defendant paid Rs. 326-12 out of this sum and so the Municipality brought the present suit to recover the balance, that is to say, Rs. 233-4. The suit was admittedly brought more than three years after the sum sought to be recovered hid become due and thus a question arose in the Court below whether Article 115 or Article 120, Limitation Act, was the proper Article to be applied to the present case. It is clear that if the suit came under Article 115, which provides as the period of limitation a period of three years from the date when the cause of action in the suit covered by the Article arose, the suit was barred by limitation. On the other hand the limitation would be saved, if the suit is held to fall under Article 120, Limitation Act, which provides a period of six years from the date when the right to sue accrues. The learned Small Cause Court Judge being of the opinion that the suit was governed by Article 115, held that it was burred by limitation and dismissed the suit. The present application is directed against this decree of the learned Small Cause Court Judge.
2. Now, the learned Advocate for the appellant in pressing his contention that the view taken by the learned Small Cause Court Judge is not correct relied upon the following cases, Dip Narain Choudhry v. Additional District Magistrate A.I.R. 1933 Pat. 65 : 141 Ind. Cas. 792 : 13 P.L.T. 771 : Ind. Rul. (1933) Pat. 92, Venkata Gurunatha Rama Seshayya v. Sri Tripura Sundari Cotton Press 49 M. 468 : 94 Ind. Cas 515 : A.I.R. 1926 Pat. 615 : 50 M.L.J. 520 : 24 L.W. 102 : (1926) M.W.N. 450 (P.C.) and Lalji Singh v. Ramrup Singh A.I.R. 1934 Pat. 148 : 150 Ind. Cas. 975 : 13 Pat. 192 : 7 R.P. 47. In Dip Narain Choudhry's case A.I.R. 1933 Pat. 65 : 141 Ind. Cas. 792 : 13 P.L.T. 771 : Ind. Rul. (1933) Pat. 92 the suit had been instituted to recover certain taxes due to the Municipality and upon a discussion of the various provisions of the Municipal Act it was held that to a suit for the recovery of dues under Section 130, Municipal Act, there being no other limitation provided for in the other Articles of the Schedule, Article 120, Limitation Act, applied and the suit in question having been brought within six years of the date when the taxes became due; ought to be decreed. The learned Advocate for the appellant has referred us to Sections 268, 275, 368 and 130, Municipal Act, for the purpose of showing that the dues which are sought to be recovered in the present suit are covered by Section 130, Municipal Act. It appears to me, however, that as no special period of limitation is provided in the Municipal Act for the recovery of dues under that Act, we have to fall back upon the Limitation Act and the question to be decided, therefore, is whether the present suit falls under any of the special Articles of the Limitation Act. If it does not fall under any of the special Articles it must be held to be governed by the residuary Article 120 Now, I have no doubt in my mind that the Article which is applicable to the present suit is Article 115, Limitation Act.
3. In Tricomdas Cooverji Bhoja v. Gopinath Ji Thakur 44 C. 759 : 39 Ind Cas. 156 : A.I. 1916 P.C. 182 : 44 I.A. 65 : 1 P.L.J. 262 : 15 A.L.J. 217 : 25 C.L.J. 279 : 32 M.L.J. 357 : 21 M.L.T. 262 : 21 C.W.N. 577 : (1917) M.W.N. 363 : 5 L.W. 654 : 19 Bom. L.R. 450 (P.C.) it was made clear by the Judicial Committee that the word " compensation" as used in the Contract Act has been used in a very wide sense and Article 115 in that case was applied to a suit to recover royally under a lease of certain land with the right to the coal therein. Ii the dues which are sought to be recovered from the defendant could have been described as rent, the appropriate Article would have been Article 110 but there is some authority for the view that such a due cannot be properly described as rent and, therefore, we have to fall back upon Article 115. There can be no doubt that the sum sought to be recovered was due to the plaintiff under a contract by which the defendant had bound himself to pay a certain amount annually and the present suit had to be brought by the plaintiff, because there had been a breach of this contract by the defendant. Article 115 has been made applicable to similar suits and I have no doubt that it is the appropriate Article to be applied to the present case also. The last two cases relied upon by the learned Advocate for the appellant do not appear to be of much assistance to us. In Venkata Gurunathas case, 49 M. 468 : 94 Ind. Cas 515 : A.I.R. 1926 Pat. 615 : 50 M.L.J. 520 : 24 L.W. 102 : (1926) M.W.N. 450 (P.C.) a suit was brought by a shareholder against a company for recovery of the dividend and in Lalji Singh's case A.I.R. 1934 Pat. 148 : 150 Ind. Cas. 975 : 13 Pat. 192 : 7 R.P. 47 the suit was brought to recover nazarana from a lesson who had failed to grant a lease. Whatever view may be taken with regard to these particular dues> it appears to me that the present case is covered by Article 115. I think, therefore, the suit was rightly dismissed and this application must also be dismissed with costs. Hearing fee one gold mohur.
Madan, J.
4. I agree.