RAM NARAIN Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) This is a plaintiff's second appeal against concurrent decrees of the Courts below dismissing his claim for certain moneys due under a contract entered into between him and the Municipal Board of Muttra. The plaintiff is a contractor and performed certain work for the defendant Board under a contract entered into between the parties. After the work was completed, a dispute arose and the defendant Board refused to pay a sum of Rs. 3019 which the plaintiff alleged was due to him upon the contract. Eventually the plaintiff brought this suit claiming a sum of Rs. 3847 being this alleged sum of Rs. 3019 alleged to be due to him under the contract together with certain security money and interest. The defendant Board raised a number of defences and eventually the plaintiff's claim was dismissed by the Court of first instance. On appeal to the learned Civil Judge the decision of the learned Munsif was upheld upon the ground that the plaintiff had failed to serve a notice upon the defendant Board as required by Section 326 (1), Municipalities Act, 1916. The only question considered by the learned Civil Judge was the question of limitation and upon that issue he found in favour of the plaintiff. No findings have been recorded by the lower Appellate Court upon any of the other issues in the case. On behalf of the appellant it has been urged before us that the present suit is not a suit falling within Section 326(1), Municipalities Act, 1916, and that being so, no notice was necessary as required by the terms of that sub-section. Section 328(1), Municipalities Act, 1916, reads as follows: No suit shall be instituted against a Board, or against, a member, officer or servant of a Board, in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has boon, in the case of a Board, left at its office, and in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.

(2.) Section 326(3) of the Act is in these terms: No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the aoorual of the cause of action.

(3.) The plaintiff did serve a notice upon the defendant Board, but it is common ground that this notice did not contain the matters mentioned in Section 326(1) of the Act. The learned Civil Judge therefore held in consequence that as no notice had been given which complied with this sub-section, the suit failed. The question which we have to consider is whether a suit claiming the balance due for work done under a contract between the parties is a suit falling within Section 326(1), Municipalities Act, 1916. If it is, then a notice complying with that Act is essential, but if it is not, the action can proceed without any such notice. On behalf of the plaintiff-appellant a number of cases have been cited and in our judgment it has been consistently held of later years by this Court that Section 326 (1), Municipalities Act, 1916, can have no application to a suit such as the present one.