(SYED) RAZA HUSAIN Vs. DISTRICT BOARD

JUDGEMENT

(1.) This is a defendant s appeal arising out of a suit brought by the District Board of Banda against the defendant who was at one time a member of the Board. In the plaint it was alleged that the defendant was a member of the Board from 1923 to 1925, and lime was required for use by the Board:

(2.) The Board went on to allege that he did not supply the full quantity of lime, and that he submitted an account which was wrong. It accordingly claimed the balance. It alleged that the cause of action accrued on or about the end of October 1925 when the defendant stopped supplying lime and also-on subsequent dates when he refused to render accounts. The suit was filed, on 26th October 1928. The defendant in his written statement pleaded that the suit was bad because no previous sanction of the Commissioner had been obtained, and also pleaded that the claim was barred by time. There were other pleas also with which we are not concerned. Interrogatories were served by the defendant on the Chairman of the District Board and the very first question asked was whether the amount had been advanced to the defendant in his capacity as a member of the Board or as an outsider. The answer given was that the amount was given to Mm for preparation of lime as an advance in: his capacity as a member of the District Board. The learned Munsif began his finding by stating that it is admitted by the plaintiff that the defendant was given the advance in his capacity as a member of the Board. He again referred to this in his finding on the next issue and remarked that the defendant was given the advance to get prepared lime and supply it in his official capacity as a member of the Board. He held that the sanction of the Commissioner was necessary under Section 33 of the Act, and in the absence: of such sanction the suit must fail. He further held that the claim was. barred by the rules of limitation laid down in Section 192, Sub-section 3, District Boards Act.

(3.) In the grounds of appeal before the lower appellate the plaintiff did not challenge the remark that it had been admitted by the plaintiff that the advance had been given to the defendant in his official capacity as a member of the Board. The lower appellate Court also does not in its judgment say that the advance given to the defendant had not been given to him in his official capacity as a member of the Board. It seems to have been conceded that the money had been given, to him in that capacity. The Board filed an application before the lower appellate Court supported by an affidavit stating that, as matter of fact, the sanction of the Commissioner had been previously obtained, but it had been accidentally put on a wrong file, and could not be found at the time. It explained that both the present Chairman and the Secretary were not holding the offices at the time when the sanction was obtained. The lower appellate Court accepted this explanation and considered that there was sufficient. ground for admitting fresh evidence and also held that the papers filed by the Board showed that previous sanction had been obtained. The learned Judge came to the conclusion that there was no defect. He further held that Section 192, Sub-section 3, did not apply to the case, because the plaintiff was the District Board itself and not a stranger. He overruled the finding of the first Court and remanded the case for disposal of the remaining issues.