MUNICIPAL BOROUGH OF AHMEDABAD Vs. VADILAL DALSUKHRAM SHAH

JUDGEMENT

(1.) THIS is a revision application against an order of the Small Cause Court Judge of Ahmedabad made under Section 25 of the Provincial Small Cause Courts Act. The ground of the application is that such a claim as this does not lie and, therefore, the learned Judge had no right to pass the order which he did, and such order was not " according to law " within Section25.

(2.) THE suit arose in these circumstances. In the year 1936-37 a bill was issued to the applicant by the Ahmedabad Municipality claiming certain rates, including drainage rate, and a demand was duly made under Section 104 of the Bombay Municipal Boroughs Act, 1925. THE applicant appealed against the demand under Section 110, but his appeal was dismissed by the Magistrate. THEn he went in revision to the Sessional Court under Section 111, and that application was also dismissed. THEn he came in revision to this Court under Section 115 of the Civil Procedure Code, and it has been held that, although the Magistrate and the Sessions Court are exercising criminal jurisdiction, a revision application lies to this Court in a proper case under Section 115. (See Lokmanya Mills Ltd. v. Municipal Borough, Barsi (1939) 41 Bom.L.R.937). Why the provisions of Section 115 were held to apply in this case, I do not know. It looks rather as if the only point at issue was one of law, and therefore of appeal and not revision. However, the matter was entertained in this Court, and the learned Judge on January 17, 1940, held that the levy of a drainage tax was illegal, and directed refund of the amount paid in respect of that tax, the amount having been paid by the applicant on January 23, 1937, under protest.

(3.) MR. Patel for the opponent suggests that he is really suing in tort. His position would not be improved by suing in tort, and in any case there was no tortious act on the part of the Municipality. They claimed a sum to which they thought they were entitled. Moreover if the liability was in tort, it is plain that the cause of action arose when the wrongful demand was made, and the delay in filing the suit is much more than the six months allowed under Section 206 of the Bombay Municipal Boroughs Act for the filing of a suit. Indeed I think that, even if interest could be allowed under the law, Section 206 would be an answer, on whatever basis the plaintiff puts his case.