DISTRICT SCHOOL BOARD OF BELGAUM Vs. MOHAMAD MULLA

JUDGEMENT

(1.) THE only point that arises in these appeals and in the Civil Revision Application No. 4 of 1941 is one of limitation. THE appellant, the District School Board of Belgaum, had employed the respondents in the different appeals and in the civil revisional application as teachers and they were being paid on a certain scale. Pursuant to a certain Resolution passed by Government, the Board came to the conclusion that they had been paid more than they were entitled to and, therefore, the Board directed that the respondents should refund the excess payments made, and orders were passed for deducting the excess amount from their pay by monthly instalments. THEse orders were communicated to the respondents by the end of April, 1937, and the deductions actually started from April 1, 1937. THEse deductions went on for about twenty months when the respondents obtained legal advice and protested to the Board that these deductions were not legal and they filed the suits in October 1939 for recovering from the Board the amounts already deducted from their salaries and for getting an injunction restraining the Board from making similar deductions in future.

(2.) THE point urged before me is that the claim of the respondents is barred except for the amounts deducted within six months of the filing of the suit and the claim for injunction, and this contention is based on the amendment of Act IV of 1923, the Bombay Primary Education Act, which was amended by Act XII of 1938. Act XII of 1938 provided a period of limitation for filing suits against the District Board for anything done, or purporting to have been done, in pursuance of the main Act, and the period of limitation provided was six months from the date of the act complained of. THE section also provided that one month's previous notice in writing of the intended action and of the cause thereof had to be given to the Board. Now if this section applies, the claim of the respondents to the extent that it claims a refund of the amounts deducted six months prior to the filing of the suit is clearly out of time.

(3.) IN Khusalbhai v. Kabhai (1881) I. L. R. 6 Bom. 26, subsequently to the institution of the plaintiffs' suit, one of the defendants died, and his son, as his legal representative, was made a defendant in his stead. The new defendant objected that his father had been dead more than six months before the application of the plaintiffs to make him a defendant and that, therefore, the suit should abate, as provided by the last clause of Section 368 of the Civil Procedure Code, Act X of 1877 (introduced by the amending Act XII of 1879 and Article 171B of the Limitation Act XV of 1877, which prescribed a period of sixty days within which an application should be made to have the representative of a deceased defendant made a defendant to a suit. The Court consisting of Mr. Justice Melvill and Mr. Justice Kemball held that the provisions of Article 171B of the Limitation Act should not be given retrospective effect, and the principle there enunciated was that as a general rule an act of limitation, being a law of procedure, governs all proceedings, to which its1 terms are applicable, from the moment of its enactment, except to the extent that its operation is expressly excluded. But this principle admits of one qualification that when the retrospective application of a statute of limitation destroys vested rights or inflicts such hardship or injustice as could not have been within the contemplation of the legislature, then the statute should not be construed retrospectively. One consideration that greatly weighed with the Court in refusing to give retrospective effect to that particular statute of limitation was that the Act came into force at the moment at which it received the assent of the Governor General. The plaintiffs, therefore, in that suit had no such notice as might have enabled them to anticipate the divestiture of their right of revival of the suit IN that case Mr. Justice Melvill referred to the case of The Queen V. The Leeds and Bradford Railway Co. (1852) 21 L. J. (M. C. ) 193, in which it was held that the 11 & 12 Vict. , c. 43, Section 11, which limits the time for taking summary proceedings before justices to six months from the time when the matter complained of arose, was fatal to proceedings begun after the passing of the Act, in respect of a matter which had risen more than six months before the Act was passed. IN that case there was an interval of six weeks between the passing of the Act and its coming into operation, and the concession of this interval was thought to show that the hardship in question had been in the contemplation of the legislature, and had been thus provided for; and in that case Lord Campbell said (p. 195): If the Act had come into operation immediately after the time of its being passed, the hardship would have been so great that we might have inferred an intention on the part of the legislature not to give it a retrospective operation; but when we see that it contains a provision suspending its operation for six weeks, that must be taken as an intimation that the legislature has provided that as the period of time within which proceedings respecting antecedent damages or injuries might be taken before the proper tribunal.