RAJA RAM CHANDRA PRASAD Vs. PATNA CITY MUNICIPALITY

JUDGEMENT

(1.) This appeal has arisen out of a suit instituted by the Patna Municipality for realization of a sum of Rs. 392 from the defendant who is a lawyer and who used to work in Courts for the municipality. The sum claimed was realized by the defendant in this capacity. The defendant admitted having realized the money, but alleged that a large amount of money amounting to Rs. 686 was due to him from the municipality and claimed a lien of this amount on the sum claimed in the suit. The trial Court dismissed the suit, holding in favour of the defendant, but the lower Appellate Court has decreed it. It has held that the defendant failed to establish the amount due to him from the Municipality nor has he paid court-fee on the amount which he claimed to be due.

(2.) The learned advocate appearing on behalf of the municipality has raised a preliminary objection that the appeal has abated on account of the fact that since its institution the municipality, which was being then administered by a Special Officer appointed by the Government, has been restored to the Commissioners and is now being administered by them and they have not been substituted.as respondents in the appeal. I overrule this contention. The municipality is a Corporation and continues to be a Corporation even when it is administered by the Special Officer appointed by the Government. The only difference is that by statutory provision the powers of the Commissioners are vested in an individual. But the corporate existence of the municipality remains the same. Corporation never dies and in my opinion no substitution was necessary. The Commissioners who have taken charge of the municipality cannot be said to be the representatives of the Special Officer who was made respondent.

(3.) Now, the judgment of the learned District Judge is not very satisfactory. The defendant was not claiming a set-off or asking for a decree for the amount which might be found due to him from the plaintiff. His case was that he was not liable to pay the amount claimed unless there be an adjustment of account between the plaintiff and the defendant. The learned District Judge has not properly appreciated the case of the defendant. On the other hand the fact remains that the defendant had not placed before the Court materials to enable it to decide what sum, if any was due to him from the municipality. This was necessary in order to decide whether the defendant had any lien on the amount claimed. But though there was a total denial by the Municipality of there being any sum due from them to the defendant, it is obvious from the comment in the judgment of the learned Munsif on the evidence of some of their witnesses that much reliance cannot be placed upon the case of the plaintiff, and it seems to me that the case of the defendant is not entirely unfounded.. But much cannot be done in his favour. He has not chosen to bring a suit for the realization of the amount said to be due to him and the claim has become barred. Neither the plaintiff nor the defendant seems to have acted in a business-like manner. Since the time when the defendant was working for the municipality, there have been three changes in its administration. It was being managed by the Commissioners elected and nominated, then there was super, session and a Special Officer administered it for about five years. Thereafter the supersession order has been cancelled and the municipality has been restored to the Municipal Commissioners. Taking all these circumstances into consideration, I do not think any useful purpose will be served if any attempt be made to order adjustment of accounts between the parties. Therefore on my suggestion the parties have come to terms and with the consent of their advocates I order the defendant to refund half of the amount claimed by the plaintiff. The decree of the learned District Judge will be set aside, and in lieu thereof there will be a decree in favour of the plaintiff for Rs. 196 that is, half the principal amount claimed. The plaintiff will also be entitled to get half the court-fee paid by it in the trial Court and in the Court of Appeal below. All other costs will be borne by the parties. A decree will be prepared in this Court on the lines indicated above.