GOLAGHAT MUNICIPAL BOARD Vs. SONARAM GOHAIN

JUDGEMENT

(1.) This appeal is by defendant 1 who is the Golaghat Municipal Board and it arises out of a suit instituted against the municipal board and certain other persons for damages. The facts which need be stated for the purposes of this appeal briefly are as follows: There was certain land belonging to the Golaghat Municipal Board which was let out to one Rebakanta Gohain. He erected a hut on the land which, I am told, was used as a stall in the municipal market. Rebakanta sold the hut to Jewram who is defendant 4. The municipality renewed the lease of the land in favour of Jewram. The rent for this land fell in arrear. Rebakanta owed some rent and after him Jewram owed it. The municipal board purporting to act under Section 144,. Assam Municipal Act, brought the hut to sale on 27 February 1937. Defendant 3, Shankar Chandra Barua, was the purchaser. On 24 June 1937 Shankar Chandra Barua dismantled the hut. The plaintiff sues the municipal board, Sankar Barua, Jewram and the chairman of the municipal board for, damages on the following allegations:

(2.) He instituted a suit for Rs. 88-15-3 against Jewram and attached the hut before judgment on 9 January 1927. He alleges that while this attachment was pending, the municipality and the other defendants in collusion with one another got the hut sold fraudulently. His case is that the municipality had no legal grounds for selling the hut and he accordingly claimed the damages. The defence taken is that the municipality was acting within the Assam Municipal Act in bringing the property to sale and therefore the plaintiff had no right to claim any damages against the municipality. Secondly, it was contended that proper notice in accordance with the provisions of Section 320. Assam Municipal Act, had not been served upon the municipality. Thirdly, it was contended that the suit was barred by limitation inasmuch as it was brought more than three months after the accrual of the plaintiff's cause of action. These are the main grounds upon which the suit was resisted. The trial Court held in favour of the defendants and dismissed the suit, against all the defendants except defendant 4. Against this decision the plaintiff appealed and the learned lower appellate Court has decreed the suit against the municipal board; the municipal board appeals to this Court.

(3.) Now, the first question for decision is whether notice under Section 320, Assam Municipal Act, is necessary in this suit and if so, whether such notice has been served on the defendant municipality. The learned lower appellate Court has held that the notice has been served. In my opinion, the lower appellate Court has erred in law in coming to this finding. Section 320 says that no suit shall be brought against any board, for any. thing done under this Act until the expiration of one month next after the notice in writing has been delivered at the office of the board. It goes on to say that "unless such notice be proved the Court shall find for the defendant." It is clear from the pro "visions of this section that the onus is upon the plaintiff to prove not only service of notice but also that the notice is of the kind of notice contemplated by the section. The section says : that the notice should State the cause of the suit, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the person who intends to bring the suit. The plaintiff has merely pledged his oath to the fact that notice was sent by registered post to the municipal board and the other defendants. But he nowhere stated that the notice complied with the requirements of S.320. In the written statement there was a specific denial of the validity of the notice. There can be no doubt that the plaintiff has succeeded in proving the service of a notice. That is not sufficient. The plaintiff must prove that the notice was valid. The learned Additional District Judge states that as a notice had been served on the municipality it was the duty of the Board to produce the notice to show that it was not in accordance with the provisions of Section 320. I am unable to accept this proposition. By reason of the denial of the validity of the notice the plaintiff was put to strict proof of its validity. It was the duty of the plaintiff to call for the notice from the Municipal Board and on the failure of the Municipal Board to produce the document, to give secondary evidence thereof. No such thing was done. The notice has therefore not been proved and the section is quite clear that unless such notice is proved the Court shall find for the defendant.