MUNICIPAL COMMITTEE, KARNAL Vs. SH. MEHLO RAM

JUDGEMENT

(1.) A suit was filed by the Plaintiff -Respondent against the Defendant -Appellant Municipal Committee for permanent injunction restraining the Defendant Appellant from demolishing any part of his house. This suit was decreed by the trial Court. Dissatisfied by the judgment and decree of the trial Court, Defendant -Municipal Committee filed first appeal before the lower appellate Court which was dismissed on the ground that the Ex -cutive Officer was not competent to file the appeal as there was no resolution of the Municipal Committee in his favour to file the appeal. Hence this second appeal by the Municipal Committee.

(2.) MR . C.B. Kaushik, Learned Counsel for the Appellant, has vehemently argued that although there was no resolution on the date of filing the appeal before the lower appellate Court but a resolution was subsequently passed and this should have been construed sufficient to authorise the Executive Officer to file the appeal I am afraid this contention has no merit. It is settled law that the authorisation is to be on the date the suit or appeal is to be instituted and the subsequent resolution, which was passed by the Municipal Committee, it was within the period of limitation, could be held as valid. But in the present case, the appeal before the lower appellate Court was filed on January 14, 1963, and the resolution in question was passed on May 29, 1963, which is beyond the period of limitation. Even this resolution does not show that the action of the Executive Officer to file the appeal was ratified. It only shows that the Executive Officer is authorised to file the appeal. The contention of Mr. Kaushik could hold good if the Executive Officer also prosecuted the suit before the trial Court. The record shows that the written statement was filed by the President of the Municipal Committee on behalf of the Municipal Committee and the power of attorney in favour of the counsel was also signed by the President and not by the Executive Officer In this situation, the Executive Officer could not, in the absence of specific resolution of the Municipal Committee, file the appeal Mr. Kaushik placed his reliance on The Municipal Committee, Pathankot v. Roshan Lai, (1957)59 PLR 470. There is no quarrel about the principle of law laid down in this authority. It is laid down in this authority that appeal is the continuation of the suit. It is undoubtedly so. But in that case the person who filed the appeal was authorised to defend the suit in the trial Court. Hence this authority is of no avail Mr. Kaushik also placed his reliance on The State Bank of Patiala v. Shri Balbir Singh, (1978)73 PLR 504. This authority relates to a case of State Bank of Patiala and the facts are distinguishable. In Bawa Bhagwan Dass v. Municipal Committee, Rupar through Sardar Sher Singh, Executive Officer : AIR 1943 Lah 318 it is laid down as under:

(3.) IN view of these authorities, I hold that the Executive Officer had no authority to file the appeal before the lower appellate Court in the absence of the specific resolution of the Committee authorising him to do so. Mr. Kaushik could not cite any provision of the Municipal Committee Act and the Rules framed thereunder under which Executive Officer was competent to file the appeal. It is only the Municipal Committee which can do so. In this view of the matter, I find no merit in the appeal and the same is dismissed with no order as to costs.