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Judgment
H.R. Krishnan, J.
This appeal is directed against the concurrent decisions of the lower courts dismissing the suit ad liinine on the ground that the plaintiff had not given notice to the defendant, namely, the Mandal Panchayat, u/s 80 of the Civil Procedure Code. The only question is whether such a notice was necessary.
The suit of the plaintiff was for different reliefs. It is argued here that it was not intended to pray that the Panchayat should be restrained from levying certain rates at a mela held near a temple owned and maintained by the plaintiff. But it was intended that the defendant Panchayat should be restrained from levying rent on shopkeepers to whom the defendant was allotting plots of his land in the temple enclosure. This is not clear from the plaint and before the issues are framed it will be necessary for the plaintiff to amend his plaint. But this is not a matter directly arising in the present appeal.
Under Section 21 of the Madhya Bharat Panchayat Vidhan of Sambat 2006 all Panchayats including the Mandal Panchayat are corporations and competent to sue and be sued. u/s 97 no suit can be brought against a Panchayat or a Panch or Member or an official of a Panchayat for acts done in good faith under the provisions of that law. In 1956 an amendment was added to the effect that in any event no suit could be brought without notice for two months given to the defendant. In ,other words, this amendment has made the principles of Section 80 applicable to such suits, but without any retrospective effect. The present suit having been brought on 23-3-1955 before this amendment the question is whether the lower courts were right in applying Section 80 and not whether notice under the present Section 97 is necessary.
The ''suit is not against any individual panch or officer but against the Mandal Panchayat itself through the Sarpanch. The Mandal Panchayat is not a department of Government whether of the State or of the Union. It is a local body. Even supposing that the suit is against the sarpanch he is not a public officer as defined in Section 2(17) of the Civil Procedure Code. He is no doubt a public servant under the Panchayat Act, but that is a different matter. A similar position arose in AIR 1944 130 (Nagpur) where the president of the Village Panchayat Committee was sued. It was pointed out that the president of the Panchayat Committee was not a public officer for the purpose of the CPC though he was a public servant for the purposes of the Penal Code. The defendant has relied upon Cecil Cray v. Cantonment Committee of Poona ILR 34 Bom 583 where the Cantonment Committee was Sued.
It was rightly held that the Cantonment Committee was a public officer within the meaning of Section 2 Clause (17), C. P. C. The point of difference is that a Cantonment Committee is in charge of the Cantonment Fund which is vested in the Government and, therefore, it was maintaining a fund on behalf of the Government. The Nyaya Panchayat is maintaining the Panchayat fund which is not vested in government but is vested in tbe Panchayat itself though one item in the fund is a contribution from Government. The test is not whether Government contributes to the Panchayat fund but whether the fund itself has vested in Government.
In the result I hold that it was not necessary for the plaintiff when he brought the suit to have issued notice on the Panchayat u/s 80 of the Civil Procedure Code.
Accordingly the appeal is allowed and the judgments and decrees of the two lower courts are set aside. The original courts should deal with the suit in the manner provided by law. Costs through out to the plaintiff with pleader''s fee according to rule or as certified.