Kalla Suryanarayana vs President (Chairman of the Municipality), Khammameth

Qamar Hassan, J.—The suit out of which this appeal arises was fought by the appellant, Kalla Suryanarayana against the President of the Municipality of Khammam. The complaint against him was that he had unauthorised enhanced the annual assessment on his house situated within the limits of the aforementioned Municipality. Consequently, it was prayed by the appellant that a declaration be made in his favour to the effect that the enhanced tax was irregular, illegal and for the matter of that liable to be cancelled; and also a decree may be passed for refund of Rs. 37-8-0 which had been levied on the appellant,

The written statement was filed under the signature of the Secretary to the Municipality of Khammam. It was contended on behalf of the defendant that the annual tax of the house had been imposed in compliance with the provisions of the Hyderabad Municipal and Town Committees Act, 1951 and that no valid exception can be taken to the assessment complained of- The further plea was that the suit was barred by limitation.

The Trial Court, after recording the evidence adduced on behalf of the parties, found hi favour" of the appellant and decreed the suit. On appeal being taken, the learned District Judge, Warangal, "reversed the judgment of the Trial. Court on the ground of limitation and also because the appellant had not taken advantage of his right of appeal under the said Act.

These two findings of the lower appellate Court have been strenuously challenged before me by Mr. Vemuganti Madhava Rao, who appeared on behalf of the appellant. During the hearing of the appeal, I was struck by the fact that the President of the Municipality of Khammam cannot be a proper party to the suit. The appellant ought to have instituted his suit as against the Municipality. I granted an adjournment to the learned advocate for the appellant to argue the question whether the proper party was before the Court. As the respondent has preferred to remain ex parte I asked Mr. Ananda Swamp to act as amicus curiae. 1 am obliged to him for the help which he has given.

The learned advocate for the appellant relied upon Shams-Ud Din Khan v. Agha Sayid Fateh Shah. AIR 1924 Oudh 309 (A). In that case an objection was taken in appeal on the ground that the Chairman of the Municipal Board appeared as a plaintiff in the body of the plaint and was mentioned by his name; that the suit ought to have been against the Municipality, therefore, the suit could not be deemed to have been properly framed. Wazir Hassan, A. J. C" (as he then was) overruled the objection holding that as the Chairman was clearly described therein as the Chairman of the Municipal Board, there can be no doubt that the plaint was Presented with the intention of showing that it was the Municipal Board which was suing.

At the worst it would be a case where a suit has been, instituted in the name of a wrong person as the plaintiff and the error could have been easily corrected under the provisions of R. 10 of O. 1 of the CPC and that the defect was not one of substance but merely of form. It was further held that under S. 99 of the CPC this defect cannot be made the ground of any interference with the decrees which the Courts below had passed in that case.

Mr. Anantswarup on the other hand, contended that the authority cited by the learned advocate for the appellant was distinguishable and in support of the contrary, proposition, he relied upon Syed Ameer Sahib v. Venkatarama, ILR 16 Mad 296 (B) and page 772 of the Law of Municipal Corporations in British India by P. Duraiswami Aiyangar (1924 Edn.). In the latter it is stated :

All Municipal Corporations have capacity to sue and to be sued. In all suits by or against municipal corporations, every individual council for or member of the corporation must be regarded as a party to the proceedings;... All such suits must be in the corporate name o(sic) the corporation and not in the name of any o(sic) the members or the Chairman or President.

In ILR 16 Mad 296 (B), the Madras High Court was concerned with a suit, which was brought against, among others, the President of a Talu(sic) Board constituted under Local Boards Act, 188 (Madras). It was held therein that the suit was not maintainable on the ground that it was no brought against the Taluk Board. In the authority cited by the learned advocate for the appellant, the contention raised was that the Chairman of the Municipal Board appeared as Plaintiff in the body of the plaint and was mentions by his name; that in virtue of the provisions (sic) S. 6 of the U. P. Municipal Act, 1916, the Municipal Board was a corporate body and as such was vested with the capacity of suing and being sued in its corporate name; consequently, the suit in the name of the Chairman of the Board was incompetent.

The learned Judge held that the premises are correct but the conclusion drawn is not strictly accurate. He proceeded to observe that the name of the gentleman, who happened to be the Chairman of the Board on the date of the institution of that suit, was mentioned in the heading of the plaint as the plaintiff but he was clean described therein as the Chairman of the Municipal Board; that there can be no doubt the Plaint was presented with the intention showing that it was the Municipal Board which was suing; and that at the worst, it was a ca(sic) where a suit had been instituted in the na(sic) of the wrong person as the plaintiff and the er(sic) could have been easily corrected under the provisions of R. 10 of O. 1, O. P. C, if the defendant-appellant had taken the objection in the Court below which he had urged before the High Court as to the form of the suit.

With respect I beg to differ from the ab(sic) view. The law as stated by the Madras High Court in ILR 16 Mad 296 (B), and in the L(sic) of Municipal Corporations in British In(sic) (page 772) by P. Duraiswami Aiyangar is cle(sic) A corporate body must be sued qua a corpor(sic) body and no officer of that body can in law regarded to be representing a corporate b(sic) unless there is some specific statutory provis(sic) in that behalf. Taking a reverse case as it wo(sic) obtain in AIR 1924 Oudh 309 (A), if the Ch(sic) man were sued in his official capacity an(sic) decree obtained against him, can it be said t(sic) the Municipality would be bound by such decree? The Municipality can validly raise(sic) objection that it will not be bound by a dec(sic) to which it was not a party, and on that v(sic) ground the suit ought to have been dismiss. That is the reason why I do not propose to into the contentions raised in regard to merits of the case.

In the result, the appeal fails and is h(sic) by dismissed not on the ground given by lower appellate Court but because the suit not properly framed Inasmuch as the necess(sic) party was not sued against. In the circumstances of this case, I order each party to bear his (sic)n costs throughout. No leave.