MORVI MUNICIPALITY Vs. J N GANATRA

JUDGEMENT

(1.) The question however which requires serious consideration is the question of limitation The resolution of the General Board was passed on 1 The present suit was admittedly filed more than six months after the dismissal of the plaintiff-respondent from the service of the Municipality It appears. from the judgment of the trial Court at para. 13 that the learned advocate for the plaintiff submitted at the time of arguments that the plaintiff had filed the suit in forma pauperis earlier within six months from the date of his dismissal and therefore. the present suit was within time The learned Judge has observed at para 13 of his judgment that there was nothing on record to substantiate his submission made by the learned advocate for the plaintiff The learned trial judge has observed that without any documents on record no finding can be given in favour of the plaintiff on such submission. The learned trial Judge has very rightly observed that there is also no such pleading on this point. The learned advocate Mr. J R Nanavati who appears for the plaintiff respondent before this Court was unable to point OUt anything on record to substantiate this submission made by the plaintiff at the time of arguments before the learned trial Judge There is no mention in the plaint that earlier the suit was filed in forma pauperis. It appears that the stamp paper for filing the present suit was purchased on 23-11-1971 and the suit was filed on 26-11-1971. I may also mention here that the plaintiff has not stated a word in his deposition also that he had filed any such suit in forma pauperis. In view of this the learned advocate Mr. Nanavati was unable to substantiate such submission which was made before the trial Court We have therefore to proceed on the basis that the Suit was filed on 26-11-1971 This was admittedly more than six months after the date of dismissal of the plaintiff The question is whether the suit can be said to have been filed within the period of limitation The contention of the defendant-Municipality so far as the question of limitation is concerned is base on section 253(1)(a) of the Gujarat Municipalities Act 1963 (hereinafter to be referred to as the Act) Sec 253(1)(a) of the Act reads as follows

(2.) The contention of the learned advocate for the plaintiff is that the act of the Municipality in dismissing the plaintiff from service cannot be said to be an act done in pursuance or execution or intended execution of the Act and hence sec 253(1)(a) can have no application. On the other hand the contention of the learned advocate for the defendant-Municipality is that even if the act of the General Board of the Municipality in dismissing the plaintiff is found to be bad on the ground that the procedure laid down under the rules was not followed or for any such other reason the act of the General Board can be said to be in pursuance or execution or intended execution of the Act because there cannot be any dispute that the General Board of the Municipality was competent to dismiss the plaintiff from service on facts 1 have found as discussed earlier that the action of the Municipality was bad in that the procedure laid down by the rules has not been followed and further because no reasons have been given either by the Controlling Committee or by the General Board for reaching the conclusion to dismiss the plaintiff from service. The question is whether in view of this factual position can it be said that the act of the Municipality was in pursuance or at any rate execution or intended execution of the Act?

(3.) The learned trial Judge held against the plaintiff on the question of limitation. The learned Assistant Judge who heard the appeal however held against the defendant-Municipality on the question of limitation relying upon some observations made by a Division Bench of this Court in the case of Kanji Zainabhai Vaidya v. Dwarka Nagar Panchayat and Another. This decision rendered by the Division Bench in Second Appeal No. 673 of 1969 has not been reported but some observations made therein have been extracted and reproduced in 12 G.L.T. 162. It appears that the learned advocate for the defendant-Municipality relied upon some observations made in this very judgment while the learned advocate for the plaintiff relied upon some other observations made in the very judgment of this Court. The Gujarat Law Times does not contain all the necessary facts of the case. It contains only short notes of some observations extracted from the judgment. In view of this I have perused the original judgment delivered by the Division Bench. The main judgment is delivered by learned brother N. H. Bhatt while some more reasons have been given by D. P. Desai J.. as he then was while concurring with the judgment of brother N. H. Bhatt. In the main judgment delivered by brother N. H. Bhatt the following observations have been made which were relied upon by the learned advocate for the defendant-Municipality: