KALOL NAGARPALIKA Vs. SHAH PRIYAVADAN BHAILALBHAI

JUDGEMENT

(1.) This rule has been issued against the order of Civil Judges J. D.) Kalol dated 26/05/1981 on an application Ex. 19 filed by the opponent-plaintiff in Regular Civil Suit No. 68 of 1981 for declaration that the suspension order passed against the opponent-plaintiff was bad in law and void. By the said application it was contended that the suit was not properly defended since the written statement and the affidavit in support thereof were signed by the Chief Officer who was not a competent authority. The learned Judge directed that unless the Chief Officer of the petitioner-defendant produces the necessary authority authorizing him to defend the suit before he signed the Vakalatnama the pleadings would not be taken on record.

(2.) I am of the opinion that the impugned order of the learned Judge is bad in law and void as he has failed to exercise the jurisdiction to accept the pleadings of the petitioner-defendant-Municipality. The reasons are obviousSection 5 of the Gujarat Municipalities Act 1963 enjoins that in every municipal borough there shall be a municipality and every such municipality shall by a body corporate having perpetual succession and a common seal and may sue and be sued in its corporate name thought its Chief Officer. This section is in pari-materia with sec. B of the Bombay Municipal Boroughs Act 1925 However it should be recalled that sec. 9 of the Bombay District Municipal Act; 1901 was not in pari-materia with the present provision though it did provide that a municipality and every municipal district show be a body corporate arid may sue and be sued in its corporate name. It did not prescribe as the present provision in sec. 5 requires that a suit by and against a municipality must be in its corporate name through its Chief Officer. It should be also remembered that the executive power of a municipality four the purposes of the Gujarat Municipalities Act vests in the Chief Officer subject an the restrictions imposed by the said Act and the Rules made thereunder. It should sales the recalled at this stage that the Kalol Municipality was a District Municipality constituted under the District Municipal Act 1901 and as such framed the Rules in exercise of the rule-making powers under sec. 46 of the said Act. It should be also; borne in mind that under sec. 23A of the District Municipal Act the municipal government of a municipal district wests in the municipality. and in a municipal district for which there is a municipal commissioner the executive power for the purposes of the said Act vests in the Municipal Commissioner subject to the Act and the Rules framed thereunder. It is in light of this legislative history that the question is to be decided as to whether the Chief Officer of the Municipality under the Gujarat Municipalities Act is competent to sign a pleading in a suit filed by or against the Municipality. The learned Judge with respect did not bear in mind this legislative history. If therefore the Gujarat Municipalates Act has empowered the Chief Officer to sue or is made liable to be sued for and on behalf of a Municipality it is difficult to agree with the learned Judge that he is not competent to sign the pleadings in a suit filed by or against the Municipality. The learned Judge has failed to appreciate also the provision contained in the Code of Civil Procedure as to who is competent to sue or be sued and verify the pleadings in a suit filed by or against a corporate body. Rule 1 Order 29 of the Code of Civil Procedure permits inter alia any Principal Officer of the Corporation who is able to depose to the facts of the case sign and verify the pleading on behalf of a Corporation. Order 6 Rule 14 permits a party and its pleader to sign any pleading and if a party is unable to sign on account of absence ar any good cause any authorised person of such a party may sign the same or sue or defend on his behalf. Similarly. Rule 15 of Order 6 provides that the pleadings shall be verified by the parties or one of the parties or some other persons acquainted with the facts of the case. Order 29 as merely a permissive and not a mandatory nor does it exclude the operation of Order 6 of Rules 14 and 15 (see: Calico Printers Association v. Karim (1930) 55 Bom 158 and Performing Bright Society Ltd. v. Indian Morning Past Restaurant AIR 1939 Bom 377) the learned Civil Judge was therefore clearly in error of law in holding that section 5 of the Gujarat Municipalities Act merely prescribes the manner of suing and though a municipality cannot be sued except through the Chief Officer even then he is not competent to Sell and verify the pleadings unless he is specifically authorised prior to his entering appearance on behalf of the Municipality. In other words he is not a party to the suit It is difficult to agree with the view of the learned Civil Judge. Assuming that the is not a party he being a principal officer inasmuch as the executive control of a municipality vests in him and if he is able to depose to the facts of the case he is competent to sign. It is nobodys case here that the Chief officer concerned was not able to depose to the facts of the case. The learned Judge however relied upon Rule 131 which prescribed that no suit tall be instituted commissioner or defended on behalf of a municipality without sanction. The learned Civil Judge has read this rule as a qualification on the power of a Chief Officer and in the opinion of the learned Civil Judge such sanction should he a prior sanction to the entering of the appearance by the Chief Officer. The view of the learned Civil Judge that the sanction of the Municipality is a condition precedent inter alia for defending the suit is not borne out on the plain reading of the said Rule and the interpretation which found favour with the learned Judge who read more than what the Municipality has prescribed. Since the sanction can be post-facto also and is no warrant either explicit or inherent in the structure of rule to hold that this sanction should be as a matter of fact prior be entering upon the defence of the suit and therefore amounting to a condition precedent. In the context of similar legal provision contained in section 457 of the Companies Act requiring the sanction of the Court for criminal prosecution of the Managing Director of the Company the Supreme Court in Jaswantrai Manilal v. The State of Bombay AIR 1956 SC 575 held is under:

(3.) This Court (B. K. Mehta J.) has also taken the same view in the context of section 481 of the Bombay Provincial Municipal Corporations Act 1949 which makes obligatory for the Commissioner to obtain the approval of the Standing Committee for instituting and prosecuting the suit (see Shanabhai v. M. P. Panchal (1979) 20 Guj. L. R. 21).