MUNICIPAL BOARD KOTDWARA Vs. DISTRICT JUDGE PAURIGARHWAL

JUDGEMENT

(1.) THE Municipal Board, Kotdwara, district Pauri Garhwal, through its Executive Officer filed this writ petition challenging the judgment and decree passed by the learned Munsif. Lands down, Pauri Garhwal, decreeing the suit under Section 6/38 of the Specific Relief Act for restoration of possession over the disputed house from which respondent No. 3 was forcibly evicted by the Municipal Board. The petitioner also challenged the judgment of the revisional court of the District Judge, Pauri Garhwal affirming the judgment and decree of the Munsif. The facts of the case are not disputed. Admittedly, respondent No. 3 occupied quarter No. 1/1, Devi Road. Kotdwara as a tenant of Municipal Board at monthly rent of Rs. 20/ -. A notice dated 16/23 -7 -86 terminating tenancy of respondent No. 3 was issued by the petitioner. The notice was replied by respondent No. 3 on 4 -9 -86. The petitioner is said to have locked the premises in dispute on 1 -9 -1986. A notice dated 17th September, 1986 was sent by registered post to the respondent No. 3 by petitioner for evicting him by 25th September, 1986. The petitioner. Municipal Board, in absence of the respondent No. 3 broke open the lock and illegally took over possession of the disputed quarter along with house -hold goods kept there. The respondent No. 3 had filed a Misc. Appeal No. 35 of 1986 before the learned District Judge challenging the notice for eviction served on him. The learned District Judge disposed of the Misc. Appeal No. 35 of 1986 by order dated 22 -10 -1986 holding the appeal was not maintainable.

(2.) THE respondent No. 3 thus filed the suit on 8 -4 -87 in the Court of Munsif, Landsdown, Pauri Garhwal under Sections 6 and 36 of the Specific Relief Act after serving the petitioner with a notice under Section 326 of the U.P. Municipalities Act. The respondent No. 3 in his plaint pleaded that Municipal Board -petitioner served a notice dated 16 -9 -1986 illegally and evicted him on 25 -9 -86 and illegally took over possession of the accommodation in question and house hold goods kept therein. The respondent stated that he was illegally evicted by force without following due process of law. Some time was bona fide consumed in prosecuting the aforesaid Misc. Appeal No. 35 of 1986 before the District Judge. After the learned District Judge disposed of the said Misc. Appeal as not maintainable, the respondent No. 3 served the statutory notice under Section 326 of the U.P. Municipalities Act to the petitioner before filing the suit.

(3.) THESE were the main points urged and canvassed before the Court of Munsif in suit and the District Judge in revision and both the courts concurrently held that the suit was filed within time and the time consumed in prosecuting the Misc. Appeal under legal advice bona fide is liable to be excluded and he is entitled for benefits of Section 14 of the Limitation Act. Sri Ravi Kiran Jain, Senior Advocate, appearing for the petitioner strenuously urged the same submissions before the Court also. The learned counsel for petitioner urged that a suit under Section 6 of the Specific Relief Act could be filed within a period of six months from the date of his dispossession as contemplated under Section 6(2) of the Specific Relief Act itself. He states that the respondent No. 3 on his own showing was evicted on 1 -9 -1980 the date on which lock was put at the premises in question by the Municipal Board. He suggested that at the most on 25 -9 -1986 when respondent No. 3 removed his goods from the accommodation or he was forced to vacate the premises would be the date for cause of action for filing suit. The limitation being six months from the date of dispossession i. e. 25 -9 -1986. The learned District Judge also held that by merely putting lock on 1 -9 -86 it cannot be inferred that respondent No. 3 was evicted from the accommodation. It was on 25 -9 -1986 when respondent was actually evicted and his house hold goods removed by the Municipal Board authorities, would be the date of forcible eviction of the respondent No. 3. Admittedly, the present suit was filed on 8 -4 -1987 after service of notice under Section 326 of the U.P. Municipalities Act. The learned counsel for petitioner submitted that Municipal Board is not Government. It was not necessary to serve the notice under Section 326 of the said Act before filing the suit under Section 6 read with Section 38 of the Specific Relief Act. Sri Ravi Kiran Jain, learned counsel for the petitioner, submitted that the notice to vacate dated 1 -9 -1986 was served by the petitioner to respondent No. 3 for vacating the premises on or before 25 -9 -1986. The respondent No. 3 instead of vacating the premises filed a Misc. Appeal No. 35 of 1986 before the District Judge on 26 -9 -1986 and obtained a stay order staying dispossession. The said appeal remained pending before the District Judge till 20 -10 -1986 on which date it was dismissed on the ground of non -maintainability. It is submitted that 26 days time consumed by the respondent No. 3 by seeking legal proceedings at a wrong forum not permissible in law is not liable to be excluded and no benefit under Section 14 of Limitation Act could be given to the respondent. He submitted that benefit of Section 14 of Limitation Act could be given in cases specified in the Schedule of the Act. It is said that suit under Section 6 read with Section 38 of the Specific Relief Act is not included in the Schedule of Limitation Act.