K. L. NIYOGI AND COMPANY Vs. DISTRICT COUNCIL

JUDGEMENT

(1.) THE plaintiff in this case had taken a contract from the District Council, Buldana, for the construction of a road and of inspection bungalows. He has now sued the District Council for damages on the plea that the Council illegally terminated the contract on 9th April 1927. On 8th October 1927 the plaintiff served the Council with a notice under Section 73, C.P. Local Self-Government Act and on 10th December 1927 he instituted his suit. Section 73(1), Local Self-Government Act provides that no suit shall be instituted against any Council for anything done or purporting to be done under the Act or any rule or bye-law made under it until the expiration of two months next after notice in writing has been delivered at the office of the Council. Section 73(2) provided that every such suit, unless it is a suit for the recovery of immovable property or for a declaration of title thereto, shall be dismissed unless it is instituted within six months from the date of the cause of action. The lower Court has dismissed the plaintiff's suit because it has has been instituted more than six months after the cause of action. It was pleaded on behalf of the plaintiff that under Section 15(2), Lim. Act, he was entitled to exclude the period of notice in computing the period of limitation but the lower Court has, held tint Section 15(2) is not applicable be the present case.

(2.) A different plea is taken in appeal, namely, that Section 73, Local Self-Government Act, has no application in the present case and that, consequently, there is the ordinary period of limitation for a suit of this nature three years. An objection has been taken to this plea being raided for the first time in appeal. Reference was made to Nathu v. Umedmal in which it is declared that the Courts should check the tendency of defeated litigants to evade their defeat by devising a new case and that it is not open to the Courts of appeal to expose a party after he has obtained his decree to the brunt of a new attack of which he had never had any notice during the hearing of the suit. Here, however, there is no new case set up and there is no new attack; all that is contended for on behalf of the appellant is that in the lower Court the Court and the parties misconceived the law of limitation applicable to suits, against a District Council, We consider that there is no force in the preliminary objection.

(3.) A number of cases have been cited before us in which provisions similar to Section 73 in other local and special Acts have been interpreted in the way the plaintiff seeks to interpret that section. The earliest cited is Mayaadi v. Mc. Quhae [1878] 2 Mad. 124 in which it was held that a suit on a breach of contract was not governed by the provisions of Section 168, Madras Towns Improvement Act, as it was not brought for anything done under the Act. To similar effect are the decisions in Trustee of the Harbour Madras v. Best and Co. [1899] 22 Mad. 524, which was concerned with Section 87, Madras Harbour Trust Act, and in Muthiya Chettiar v. Secretary of State [1908] 31 Mad. 522, which was concerned with Section 87, Madras Salt Act. In Maneklal Motilal v. Municipal Commr. Bombay [1895] 19 Bom. 407 it has been held that Section 527, Bombay Municipal Act of 1888, does not apply to claims arising out of contracts or quasi-contracts and in Ambika Churn Mozumdar v. Satish Chunder Sen [1898] 2 C.W.N. 689 that Section 363, Bengal Municipal Act of 1884 applies to suits based on tortious acts and not on any act arising upon a contractual or quasi-contractual basis.