The Municipal Council of Kumbakonam vs Veeraperumal Padayachi

Napier, J.—In this case the plaintiff brought a suit originally against the Municipality of Kumbakonam and another, a contractor, claiming to

be interested in a contract made by his brother with the defendant Municipality, which contract was still in force, asking for an injunction against the

defendant to restrain them from interfering with the work being done under the contract, and for a small amount of damages for extra expense to

which the contractor had been put owing to past interference, the person with whom the contract was made not being joined as plaintiff but being

made a defendant on the ground that he was at the time in jail and unable to bring the suit himself. Subsequently, leave was granted by the District

Munsif to amend the plaint and to make the contractor-defend-ant a plaintiff. This was done and a claim, alternative to that for an injunction, in

the form of a claim for damages for Rs. 312-8-0 was added in the view that possibly the conditions had changed in such a manner that an

injunction would not or could not be granted. The District Munsif decreed the amount against the Municipality and dismissed the suit against the

other parties, holding that they were in no way responsible for the damage, The Municipality appealed on the ground that notice required by

Section 261 had not been given and that the suit was barred by limitation and on the merits. The Subordinate Judge dismissed the appeal.

The points taken in this appeal are that no proper notice u/s 261 had been given, that the District Munsif erred in law in permitting the plaint to

be amended, that the first plaintiff had no locus standi to file the suit and that the suit is barred by limitation.

On the question of notice, various points were raised which are only important if notice is necessary; but, I am satisfied that Section 261 does

not require notice in a suit of this nature. It provides that no action shall be brought against the council or any councillor or any servant or any

person acting under the directions of the Council, Councillor or servant, on account of any act done or purporting to be done in pursuance or

execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act until the ex-piration of one

month after notice in writing has been delivered at the office of the Council or at the place of the abode of the Councillor or such person, explicitly

stating the cause of action, the nature of the relief sought, the amount of compensation claimed and other particulars. Sub-section (2) provides that

if such council or person to whom notice has been given has before action commenced, tendered sufficient amends to the plaintiff, such plaintiff

shall not recover more than the amount so tendered. Sub-section (3) provides that except in the case of a suit for recovery of Immovable property

or declaration of title thereto, the action shall be commenced within six months after the accrual of the cause of action; and Sub-section (4)

provides that no action shall be brought against the chairman on account of any act done in pursuance or execution or intended execution of this

Act, or in respect of any alleged default on his part in the execution of this Act if such act was done or if such default was made in good faith; but

that such actions shall be brought against the council.

The suit in this case was one for damages in respect of a contract entered into between the Municipal Council and the contractor for the removal

of rubbish. The act alleged to have been done was interference by the council through its servants with the contractor, which interference prevented

his collecting and disposing of at a profit the rubbish, the subject of the contract. The damages are estimated at the value of the manure which he

was unable to collect and so dispose of. The contract is not of such a character as must necessarily arise out of the statutory powers given to a

Municipal body although of course, apart from the act, the Municipality would have no existence and would therefore be unable to enter into such

a contract.

The question is whether the interference by the Municipality giving rise to the breach is ""done or purports to be done in pursuance or execution

of this act"" or whether the action is brought in respect of ""alleged neglect or default in the execution of this Act"". The words used are wide and it

may be said are also vague; for, in one sense if a statutory body does any act or makes any contract it may be said that that act was done or

contract made in execution of the Act. But, in my opinion this reading of the words is not what is contemplated by the legis-lature. Some slight

indication of the meaning may be gathered from Sub-section (2) which speaks of the councillor or servant having tendered sufficient amends to the

plaintiff. It would be a natural use of the word ""amends"" to apply it to any tortious act injuring a person or his property such as for instance,

trespass. But the word seems inapplicable to breaches of con-tract where the natural and legal phrase is compensation or damages. This point

alone would not be sufficient to decide the case but there appears to be fairly uniform authority both in England and in India for exclusion of

contracts of this nature from the pu rview of the section.

In Ramchordas Moorarji v. The Municipal Commissioners for the City of Bombay ILR (1901) B. 387 the point was considered and it was held

as settled law that a suit on a specific contract was not within the section. Reference is made to the case of Garton v. G.W. Railway (1858)

Bl.&Ell. 120. There the action was on a contract, the plaintiff declaring for money had and received and on accounts settled Earle J. held that the

notice given under the section was bad. In the Court of Exchequer Chamber the point was taken that no notice was required and it was held by the

Court that an action for money had and received or upon accounts stated was not within the section which provided for notice for anything ""done

or omitted in pursuance of that Act or in execution of powers or authorities made, given or directed in by or under the Act"". It has to be noted that

the section does not contain the words ''in respect of any alleged neglect or default in the execution of the Act'' ,''but the words considered by the

court were '' in pursu-ance of the Act or in execution of the powers under the Act'' which words govern the additional words in Section 261

''alleged neglect or default''. The ratio of the decision in Ramchordas Moorarji v. The Municipal Commisioners of Bombay ILR (1901) B. 387 is

stated by the Chief Justice as follows: ""The conduct leading to the action is a wrongful act or omission under the contract as distinct from one in the

execution of the Act; and it is the breach of a specific contract that is the occasion of the right to sue.

The Municipality of Faizpur v. Manak Dulab shet ILR (1897) B. 637 was a suit for specific performance of an alleged contract by the

Municipality under which the plaintiff permitted the Municipality to pull down some constructions, they undertaking to rebuild them. There was a

breach by the Municipality and damage was sought in addition to the suit for specific performance. It was held that Section 48 of the Bombay

Municipal Act of 1884, which was in the same terms as Section 527 of the Bombay Municipal Act 1888 con-sidered by the Chief Justice, did not

apply to suits for damages in respect of specific contracts.

Reliance is also placed on Mayandi v. Mc Quhae ILR (1878) M. 124 a suit for money due for a timber contract. It was held that the suit was

not within Section 168 of the Town Improvements Act of 1871; but, that section is in much narrower words--'' a suit against the commissioners

etc., for anything done under the Act''and it would hardly be safe to rely on the construction of such words as an authority for the construction of

Section 261. The same objection applies to another case relied on, Muthia Chetti v. Secretary of State ILR (1908) M. 523. The Act considered

there was the Salt Act, No. IV of 1889, the words of Section 87 being, ''for anything done--or ordered to be done under this Act.'' Two cases

relied on by the appellant were, the President of the Taluk Board of Sivaganga v. Narayanan ILR (1892) M. 317 and Srinivasa v. Ratnasabapathi

ILR (1892) M. 474. The first was a suit for an injunction restraining the Taluq Board from interfering with a wall built by the plaintiff. The court

held that a suit for declaration of title and for an injunction was not within the scope of the section but used the following words "" the cases

contemplated in that section are suits for compensation and for damages and the principle is to allow public bodies time for tender of amends to

parties to avoid litigation."" The words '' compensation and damages'' are certainly wide enough to cover suits for breach of contract but they can

be applied to the narrower limits laid down in the 25 Bombay case and certainly it did not decide that a suit will lie for breach of a specific

contract. The case at page 474 was a suit to recover from a Municipality money deposited for the due performance of a contract. The Court

decided without giving reasons that the suit was not within Section 261 quoting the words "" the cases comtemplated in that section are suits for

compensation and damages."" It has to be noted that this was a suit on a contract but for money had and received under the contract. It is therefore

not an authority against the application of the section to a suit for damages for breach, but at the same time the words cannot be held necessarily

applicable to such suits. These cases therefore are no authority for the appellant''s proposition. The case of Chunder Sikhur Bandopathya v.

Obhoy Churn ILR (1883) C. 8 quoted by the learned Judges is one in which Garth C.J. decided that ""the section is applicable only in those cases

where the plaintiff claims damages or compensation for some wrongful act committed by the commissioners or their officers in the exercise of their

statutory powers."" These words can hardly include a suit for damages for breach of a contract.

The last case that is relied on is Municipal Council Vs. Subbanna Chetty, . In that case the point was taken in a petition u/s 25 of Act IX of

1887 that a certain notice sent to the council was defective and the High Court was asked to set aside the decree obtained by the plaintiff. It does

not appear from the report on what basis the loss or damage sustained was ascertained. But reference was made to the case of Bales v. The

Municipal Commissioners of Madras ILR (1890) M. 386 which was a suit in tort. So far as it appears therefore this case is no authority in favour

of the appellants. Even if the case was one on contract, the point was not decided as the court declined to interfere in revision when the objection

to the notice was then raised for the first time.

As against the inference sought to be made from the language of the Court in the above cases, there is the language used by this Court in Syed

Ameer Sahib v. Venhatarama ILR (1892) M. 297 where in construing Section 156 of the Local Boards Act of 1884 which is in similar terms to

Section 261 under construction, the court adopts the language of Garth C.J. in Chunder Sikhur Bandopathya v. Obhoy Churn ILR (1880) C. 8

above referred to that the section is only applicable to suits for compensation claimed for wrongful acts committed under colour of the act. It can

hardly be claimed that this language is applicable to suits for damages for breach of contract. On a careful consideration of the authorities I have

come to the conclusion that there is no conflict between the view taken by this Court and that held in Bombay and on the words of the section and

on the view taken in England as analogous words, I am satisfied that the decision in ILR 25 Bombay is correct and should be followed by me. I

therefore hold that no notice was necessary.

On the second point it is clear that under the rules of order VI, the District Munsif had full power to allow the amendments. The point as to

limitation is that the amendment of the plaint was made more than 90 days after the alleged breach by the defendants and that therefore the suit is

barred by article 2 of the Limitation Act, the language of which is '' suit for compen-sation for doing an act alleged to be in pursuance of any

enactment.'' The reasons above given for holding that this suit is not one for an act done in pursuance or execution of this Act or in respect of any

alleged neglect or default in the execution of this Act apply equally to the construction of this article. It is therefore unnecessary to decide whether

the date when the 3rd defendant became the 2nd plaintiff should be the starting point of limitation or the date on which the plaint was originally

filed, but it would appear that Section 22 of the Limitation Act is conclusive on the point. The old Act which makes the date from which limitation

runs where a new plaintiff is substi-tuted or added the date when he was so made a party, has been amended and the section has no application

where a defendant is made a plaintiff as has been done in this case.

The last question is whether the original plaintiff had any cause of action. Reliance is placed on Iswaran Pillai v. Taragan (1913) 26 M.L.J. 127

where it was held that a stranger to a contract although entitled to a benefit under it is not entitled to sue. The lower appellate Court has found that

the first plaintiff was the undivided brother of the second plaintiff, the actual party to the contract and that he was the person who actually carried

out the contract. He was as such entitled to bring the suit provided that the actual contracting member of the family was made a party. This was

done in the plaint as originally framed. After the third defendant had become the second plaintiff there was no necessity to join the other members

of the family as the party in whose name the contract was made was entitled to bring the suit. This objection therefore fails. This second appeal is

dismissed with costs.

Spencer, J.

I concur.