# [1959] 1 S.C.R. 1148

- **Citation:** [1959] 1 S.C.R. 1148
- **Court:** Supreme Court of India
- **Decided:** 1957-09-02
- **Case number:** Civil Judge, Kanpur, in Civil Suit No. 257 of 1953
- **Bench:** S. R. DAS c. J, Bhagwati, s. K. DAS, J. L. Kapur, SuBBA RAo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1959-1-s-c-r-1148-1460
- **Pages:** 15

## Headnote

Limitation-Dismissal of employee by _Municipal Board-Rejection of appeal to Government-Suit against order of dismissal after
disposal of appeal-Period of limitation-U. P. Muni<ipalities Act,
I9I6 (U. P. 2 of I9I6), ss. 58, 69, 326.
The appellant was appointed as overseer by the Municipal
Board, Kanpur, on March 5, 1937. and continued in its service
up to March 19, 1951, when a copy of the resolution passed by the
Board on March 5, 1951, purporting to dismiss him from service ·
was.handed over to him. On April 7, 1951, he filed an appeal
to the Government against the order of dismissal from service,
but he was informed on April 8, 1952, that his appeal was
rejected.
Thereafter on December 8, 1952, the appellant
instituted a suit challenging the legality of the order of dismissal
on various grounds, and the question arose whether the suit-was
within time. Sub-section (1) of s. 326 of the U. P. Municipalities
Act, 1916, provided that no suit shall be instituted against a
Municipal Board "until t4e expiration of the two months n~xt
after notice in writing has been left at the office of . the Board ...
explicitly stating the cause of action"; and sub-s. (3) stated that
"no action "'1Ch as is described in sub-s. (1) shall ... be commenced
otherwise than within six months riext after the accr1,1al of the
cause of action". The appellant contended that the cause of
action accrued to him on April 8, 1952, when the order of dismissal of his appeal to the Government was communicated to him
and the suit, filed within eight months of that date, was within
time, and relied on. the provisions of s. 58 (r) and (2), read with
s. 69, of the Act, which gave an officer dismissed by the Board a
right .of app_eal to the Government within 30 days of the communication to him of the order dismissal :
Held, that though the order passed by the Board on March
5, 1951, was subject to a right of appeal to the Government, the
operation of the order was not suspended by the mere filing of
the appeal, and the order became effective from March 19, 1951,
when- it was communicated to the appellant. The cause of
actfon, therefore, accrued to him on that date, and the s1,1it filed
by him on December 8, 1952, was barred by limitation under
s. 326 of the U. P. M1,1nicipalities Act, 1916.
CrvIL APPELLATE JURISDICTION:
Civil Appeal No.
149of1958:
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S.C.R.
SUPREME COURT REPORTS
1149
Appeal by special leave from the judgment and order
dated September 2, 1957, of the Allahabad High Court
in First Appeal No. 474 of 1956, arising out of the
· judgment and order dated July 30, 1956, of the :First
Addittonal Civil Judge, Kanpur, in Civil Suit No. 257
of 1953.
Appellant in person.
C. B. Gupta, G. 0. Mathur and 0. P. Lal, for respondent No. I.
G. 0. Mathur and 0. P. Lal, for respondent No. 4.
1958. August 19. The Judgment of the Court
was delivered by
BHAGWATI J.-This appeal with special leave under
Art. 136 of the Constitution raises an interesting question of limitation.
The appellant was appointed an Overseer by the
Municipal Board, Kanpur, on March 5, 1937, with the
approval of the Superintending Engineer, Public
Health Department, Lucknow. He was confirmed by
the Board's special resolution dated July 2, 1938, and
continued in employ up to March 19, 1951, when a
copy of the resolution No. 1723 passed by the Board on
March 5, 1951, purporting to dismiss him frnm employ
was handed over to him. Against the said resolution
dated March 5, 1951, the appellant filed an appeal to
the Uttar Pradesh Government on April 7, 1951, but
was informed by a G. 0. dated April 7, 1952, that his
appeal :Md been rejected. This information was
received by him on April 8, 1952.
Thereafter on
December 8, 1952, the appellant filed the suit out of
which the present appeal arises, being Suit No. 257 of
1953 in the Court of the Additional Civil Judge, Kanpur, impleading the Municipal Board, Kanpur, Shri
· S. B. Gupta, Municipal Engineer, Shri Brahmanand
Misra, the then Chairman of the Munici

## Text

.A.ugust z9.
•
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•
1148
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SUPREME COURT REPORTS
SITA RAM GOEL
v •
[1959]
THE MUNICIPAL BOARD, KANPUR AND
OTHERS
(S. R. DAS c. J., BHAGWATI,. s. K. DAS, J. L. KAPUR
and SuBBA RAo JJ.)
Limitation-Dismissal of employee by _Municipal Board-Rejection of appeal to Government-Suit against order of dismissal after
disposal of appeal-Period of limitation-U. P. Muni<ipalities Act,
I9I6 (U. P. 2 of I9I6), ss. 58, 69, 326.
The appellant was appointed as overseer by the Municipal
Board, Kanpur, on March 5, 1937. and continued in its service
up to March 19, 1951, when a copy of the resolution passed by the
Board on March 5, 1951, purporting to dismiss him from service ·
was.handed over to him. On April 7, 1951, he filed an appeal
to the Government against the order of dismissal from service,
but he was informed on April 8, 1952, that his appeal was
rejected.
Thereafter on December 8, 1952, the appellant
instituted a suit challenging the legality of the order of dismissal
on various grounds, and the question arose whether the suit-was
within time. Sub-section (1) of s. 326 of the U. P. Municipalities
Act, 1916, provided that no suit shall be instituted against a
Municipal Board "until t4e expiration of the two months n~xt
after notice in writing has been left at the office of . the Board ...
explicitly stating the cause of action"; and sub-s. (3) stated that
"no action "'1Ch as is described in sub-s. (1) shall ... be commenced
otherwise than within six months riext after the accr1,1al of the
cause of action". The appellant contended that the cause of
action accrued to him on April 8, 1952, when the order of dismissal of his appeal to the Government was communicated to him
and the suit, filed within eight months of that date, was within
time, and relied on. the provisions of s. 58 (r) and (2), read with
s. 69, of the Act, which gave an officer dismissed by the Board a
right .of app_eal to the Government within 30 days of the communication to him of the order dismissal :
Held, that though the order passed by the Board on March
5, 1951, was subject to a right of appeal to the Government, the
operation of the order was not suspended by the mere filing of
the appeal, and the order became effective from March 19, 1951,
when- it was communicated to the appellant. The cause of
actfon, therefore, accrued to him on that date, and the s1,1it filed
by him on December 8, 1952, was barred by limitation under
s. 326 of the U. P. M1,1nicipalities Act, 1916.
CrvIL APPELLATE JURISDICTION:
Civil Appeal No.
149of1958:
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;
•
S.C.R.
SUPREME COURT REPORTS
1149
Appeal by special leave from the judgment and order
dated September 2, 1957, of the Allahabad High Court
in First Appeal No. 474 of 1956, arising out of the
· judgment and order dated July 30, 1956, of the :First
Addittonal Civil Judge, Kanpur, in Civil Suit No. 257
of 1953.
Appellant in person.
C. B. Gupta, G. 0. Mathur and 0. P. Lal, for respondent No. I.
G. 0. Mathur and 0. P. Lal, for respondent No. 4.
1958. August 19. The Judgment of the Court
was delivered by
BHAGWATI J.-This appeal with special leave under
Art. 136 of the Constitution raises an interesting question of limitation.
The appellant was appointed an Overseer by the
Municipal Board, Kanpur, on March 5, 1937, with the
approval of the Superintending Engineer, Public
Health Department, Lucknow. He was confirmed by
the Board's special resolution dated July 2, 1938, and
continued in employ up to March 19, 1951, when a
copy of the resolution No. 1723 passed by the Board on
March 5, 1951, purporting to dismiss him frnm employ
was handed over to him. Against the said resolution
dated March 5, 1951, the appellant filed an appeal to
the Uttar Pradesh Government on April 7, 1951, but
was informed by a G. 0. dated April 7, 1952, that his
appeal :Md been rejected. This information was
received by him on April 8, 1952.
Thereafter on
December 8, 1952, the appellant filed the suit out of
which the present appeal arises, being Suit No. 257 of
1953 in the Court of the Additional Civil Judge, Kanpur, impleading the Municipal Board, Kanpur, Shri
· S. B. Gupta, Municipal Engineer, Shri Brahmanand
Misra, the then Chairman of the Municipal Board and
the Government of Uttar Pradesh as defendants and
challenged the legality of the dismissal order passeq
Sita Ram Goel
v.
The Municipal
Board, Kanpur
Bhagwati ].
•
1 against him on the ground that the previous approval
, of the Superintending Engineer, Publi? Health Depart-
•
ment was not ta.ken as required by the rules, that the
•
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Sita Ratn Goel
v.
The M unUipal
Board. Kanpur
Bhagwati ].
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1150
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SUPREME COURT REPORTS
[1959)
appellant was denied An opportunity of being heard
in person by the Board, that no show.cause notice for
the proposed punishment of dismissal was issued to
him by the Board nor were the charges framed by it,
that the dismissal order did not specify the clmrges,
that some of the grounds on which he was dismissed
did not form the subject-matter of the charges at all,
that in any case, the charges framed were false and
malicious.
The appellant prayed for a declaration
that the order of his dismissal was ultra vires, illegal
and void and claimed a total amount of Rs. 10,951 in
respect of damages, allowances for doing officiating
work, bonus, arrears of salary and provident fund.
The suit was contested mainly by the Board and its
defence was to the effect that the order of dismissal
was not vitiated on the grounds of illegality or
irregularity and in any case the suit was barred by
limitation.
The trial court found :-
(a) that the appellant's substantive appointment
was that of an Overseer and not that of a Drainage
Overseer as claimed and the approval of the Superintending
Engineer,
Public
Health Department,
Lucknow, for his dismissal was not necessary;
(b) that·the order of dismissal of the appellant was
ultra vires on the ground that he was not given an
opportunity of being personally heard by the Board ;
(c) that no notice to show cause against the proposed punishment was issued by the Board ;
( d) that the order of dismissal was based @n certain
grounds which were not the subject-matter of the
charge and that the Chairman of the Board was not
competent to try the appellant; but
(e) that the suit of the appellant was barred by
limitation. The trial court accordingly dismissed the
suit with costs.
·
The appellant carried an appeal being First Appeal
No. 474of1956 before the High Court of Judicature
.at Allahabad and contended that the suit filed by him
against the Board was within limitation. The appel- \
lant relied upo11 the provisions of s. 326 of the U. P.
Municipalities Act (U. P. II of 1916) (hereinafter
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S.C.R.
SUPREME COURT REPORTS
1151
referred to as "the Act") and contended .that the
period of six months contemplated by sub-s. (3) of Sita Ram Goel
s. 326 plus the period of two months required . for
giving notice for filing the suit against the Board under
sub-s .• (l) of s. 326, that is, 8 months should be computed from April 8, 1952, on which date the order of
v.
The Municipal
Board, Kanpur
the dismissal of his appeal by the U. P. Government
Bh,.gwati f.
was communicated to him and not from March 5, 1951,
when the order of his dismissal by the Board was
passed or March 19, 1951, when that order of dismissal
was communicated to him by the Board.
The High Court was of opinion that the Resolution
dated March 5, 1951, passed by the Board took effect
immediately as it was an order which was complete
and effective by itself and its operation was not postponed for any further period nor was its effect suspended until the State Government had passed orders in
appeal. It accordingly came to the conclusion that
the appellant's suit was barred by limitation under
s. 226 of the Act. In view of the said finding the
High Court did not go into any other questions at issue
between the parties but dismissed the appeal with
C(jStS.
•
An application filed by the appellant for a certificate
for leave to appeal to this Court proved M:ifructuous,
with the result that the appellant applied for and
obtained from this Court special leave to appeal against
this judgment of the High Court.
The only question that arises for our determination
in this a.ppeal is whether the appellant's suit was
barred by limitation, because if that is determined
against the appellant it will be conclusive of this
appeal.
Section 326 of the Act runs as under :
"326(1) 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 the two months next after notice in writing has been, 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,
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Sita Rani Goel
v.
The JJuni(;ipal
Board,. Kanpur
1152
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SUPREME COURT REPORTS
[1959]
explicitly. stating the c!rnse 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.
Bhagwati J.
(3) No action such as is described in sub-section
•
(1) shall, unless it is an action for the recovery of
immoveable property or for a declaration of title thereto, be commenced otherwise than within six months
next after the accrual of the cause of action.
"
.................................................................
Prima facie the period of six months provided in
s. 326(3) above would commence to run after the
accrual of the cause of action and the cause of action
on which the appellant came before the Court was .his
wrongful dismissal from employ by the Board. Even
the extension ·of this period by two months, the
requisite period of the notice under s. 326(1) would not
save the appellant from the bar of limitation because
he instituted his suit more than eight months after the
Resolution dated March 5, 1951, dismissing him from
employ was communicMed to him. The appellant,
therefore, particularly relied upon the provisions of
s. 58(1) and (2) of the Act and urged that the cause of
action accrued to him on April 8, 1952, when the order
of dismissal of his appeal by the U. P. Government
was communicated to him and the suit which he
had filed on December 8, 1952, was therefore within
time.
•
Section 69 of the Act which applied to the appellant
read as under :
"A board may, by special resolution, punish or
dismiss any officer appointed under s. 68 subject to
the conditions prescribed in s. 58 in respect of the
punishment or dismissal of an Executive Officer,"
and
Section 58(1) and (2) provide:
•
"S. 58(1): A board may punish, dismiss or remove
its Executive Officer by a special resolution supported
\
• .by not less than ~/3rd members constituting the board,
subject to his right of appeal to the State Government
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S.C.R.
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SUPREME COURT REPORTS
1153
within 30 days of the communroation to him of the
order of punishment or dismissal.
·
Sita Raw Goel
(2); The State Government may suspend the Executive Officer pending the decision of an appeal under
sub-section (1) and may allow, disallow or vary the
order of the Board."
v.
The M uni~ip(!l
~oard, Ka>!J!<!r
It was argued by the appellant on the strength of
Bhact#.a,t(.J.
these provisions that the special resolution passed by
the Board was subject to his right of appeal to the
State Government within 30 days of the communication thereof to him and in the event of his filing an
appeal against the same within the period specified,
the resolution was kept in abeyance and did not come
into operation until the decision of the appeal by the
State Government. If that was so, he contended, his
wrongful dismissal by the Board became operative as
from the date when the decision of the State Government was communicated to him and that was the
date on which the cause of action· in regard to his
wrQngful dismissal accrued to him, with the result that
the suit filed by him within 8 months of such communication (including the period of 2 months' notice) was
well within time. He also supported this position by
relying upon the provisions of s. 58(2) which empowered the State Government to suspend au employee
pending the decision of the appeal, contending that
such power vested in the State Government posited
that the order of dismissal even though validly passed
in accordance with the conditions specified in s. 58(1)
was not to become effective until such decision was
reached, because only in such event the State Government would be in a position to pass an· order of suspension pending the decision of the appeal. If the
order of dismissal passed by the Board was to come
into effect immediately on such special resolution being
passed, there would be no meaning in the State
Government being empowered to suspend the office1·
:who had been already dismissed and the provision in
thatoehalf would then be nugatory. It was, there-
/
fore, argued that such power vested in the State
Government necessarily involved the consequence that •
the order of dismissal. could not be operative by its
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1154
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SUPREME COURT REPORTS
[1959)
own force but woult'l
decision of the appeal,
Sil• Ram Goel the employee against
v.
continue in abeyance until the
once an appeal was filed· by
the order within the period
The Municipal specified.
Board. Kanpur
On a plain reading of the provisions of s. 58~1) and
(2), we are of opinion that this contention of the appelBhagwati J.
lant is not tenable. One condition of the validity
of the order of dismissal made by the Board is that
t1le special resolution in that behalf should be supported by not less than 2/3rd members constituting the
Board. Once that condition is fulfilled there is nothing
more to be done by the Board and the only right
which then accrues to the officer thus dealt with by the
Board is to appeal to the State Government within
30 days of the communication of that order to him.
He may choose to exercise this right of appeal or without adopting that procedure he may straightaway
challenge the validity of the resolution on any of the
grounds available to him in law, e.g., the non-observance of the principles of natural justice and the like.
There is nothing in the provisions of s. 58(1) to prevent
him from doing so and if without exercising this right
of appeal which is given to him by the statute he filed
a suit in the Civil Court to establish the ultra vires or
the illegal.character of such resolution it could not be
urged that such a suit was premature, he not having
exhausted the remedies given to him under the statute.·
The principle that the superior courts may not in their
discretion issue the prerogative writs unless the
applicant has exhausted all his remedies JJnder the
special Act does not apply to a suit. There is nothing
in s. 58(1) which expressly or impliedly bars his right
of suit. The provisions contained in s. 58(2) above
would also not help him for the simple reason that the
•
power which is vested in the State Government of
suspending an employee pending the decision of the
appeal can hardly be said to be a condition of the
order of the Board. In any event, that power is given
to the State Government for giving relief to the em.
ployee who has thus appealed, against the rigour of \
• the order of dismissal passed by the Board against
him. The e'lnplciyee may have been dismissed by the
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S.C.R.
SUP~EME COURT REPORTS
1155
Board, in which case on looking at the prima facie
aspect of the matter the State' Government may as
well come to the conclusion that the operation of the
order of dismissal may be stayed and he be suspended
instead, thus entitling him to subsistence allowance
during' the pendency of the appeal. If the appeal is
eventually dismissed the order of dismissal by the Board
will stand ; if the appeal is allowed he will be entitled
to continue in the employ and enjoy all the benefits and
privileges of such employment, but he would not
have to starve during the period that the appeal was
pending before the State Government. The provisions
of s. 58(2) have to be read along with those of s. 58(1)
and it cannot be 'urged that the power of suspension
vested in the State Government is to be exercised in any
other case except that of dismissal or removal of the employee by the Board. In the case of any other punishment an order of suspension passed by the State
Government pending the decision of the appeal would
only mean that during the pendency of the appeal the
State Government is empowered to visit on him a
higher punishment than what has been meted out to
him already by the Board. Such an absurd position
could never have been thought of by the legislature
and the only way in which s. 58(1) can be read consistently with s. 58(2) is· to construe this power of suspension vested in the State Government to apply only to
those cases where a higher punishment than suspension has been meted out by Board to the employee.
Section 58(2) m\3rely prescribes the powers which the
State Go~ernment may exercise in the matter of the
appeal which has been filed by the employee against
the order of the Board.
The mere filing of an appeal
has not the effect of holding the order of the Board in
abeyance or postponing the effect, thereof until the
decision of the appeal.
Such a construction would on
the other hand involve that even though a special
resolution was passed by the Board dismissing or
removing the employee he would continue to function
as such and draw his salary pending the decision 9f
his appeal, once he filed an appeal to the State Govern-
·ment as prescribed. We do not s~e apy words in •
147
•
Sita R<Lm Goel
v.
The M itn icipal
Board. I<anpur
Bhagwati f.
•
Sita Rani Goel
v.
The Alunicipal
Board, J{anj)ur
IJh:Jgwafi ].
•
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•
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II56
SUPREME COURT REp<f,RTS
[1959]
s. 58(1) and (2) which would suspend the operation of
the order passed by tlie Board or render it ineffective
by reason of the filing or the pendency of the appeal.
As a matter of fact the legislature in s. 61(3) of the
very same Act while dealing with the right of appeal
from the orders of the executive officer has expressly
provided for such a contingency and enacted that
when an appeal was filed within the specified period
the order would remain suspended until the appeal was
decided.
A comparison of the provisions of s. 58(1)
and s. 61(3) of the Act is thus sufficient to show that
no such consequence was intended by the legislature
when it enacted s. 58(1) of the Act.
A similar provision
1enacted in the proviso to s. 71
of the U. P. District'Boards Act (U. P. X of 1922) may
also be referred to in this context. 'Vhile dealing with
the powers of dismissal or punishment of a Secretary
or Superintendent of education by the Board the legislature enacted a proviso thereto that the Secretary or
the Superintendent of education of a Board, as the
c11se may be, shall have a right of appeal to the State
Government against such resolution within one month
from the date of the communication of the resolution
to him, and that the resolution shall not take effect
until the period of one month has expired or until the
State Government has passed orders on any appeal
preferred by him.
The absence of any! such provision
in s. 58 of the Act also goes to show that no such consequence was intended by the legislature.
The enactment of s. 58(1) in the manner in which it
has been done giving to the employee only a •right of
appeal to the State Government within 30 days of the
communication to him of the order .of the Board without anything more is enough to show that neither was
the suspension of the order nor the postponement of
the effect thereof as a result of the filing of an appeal
ever in the contemplation of the legislature.
It may be noted in passing that the appellant relied
upon a decision of the Allahabad High Court in Dist.
Bqard, ShMijaha.npur v. Kailashi
Nath('), which
turned on tho construction of s. 71 of the U.P. District
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(r) A l.R. I9J8 All. r99.
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S.C.R.
SUP~EME COURT REPORTS
1157
Boards Act set out above in support of his contention.
The provisions of that section, however, are quite
distinct from those of s. 58(1) of the Act before us and
this case was rightly distinguished by the High Court
in the.judgment appealed against inasmuch as by the
express terms of s. 71 under consideration there, the
dismissal was not to take effect until the period of one
month had expired or until the State Government had
passed orders on any appeal preferred by the employee. It is, therefore, clear that even though the order
passed by the Board was subject to the right of appeal
given to the employee in the manner aforesaid, the
operation of the order was not suspended nor was
its effect in any manner postponed till a later date by
the mere filing of the appeal and it became effective
from the date when it was communicated to the employee. The cause of action, if any, accrued to the
employee on the date of such communication and the
period of limitation commenced to run from that
date.
If this is the true position on a plain construction of
the provisions of s. 58(1) and (2) of the Act what is the
other principle which the appGllant can call to his aid
in order to support his contention? He tried to eqmite
the special resolution passed by the Boll-rd with a
decree passed by a trial court and the decision of the
appeal by the State Government with a decree passed
by an appellate court and urged that in the same
manner as a decree of the trial court became merged
in the decree passed by the appellate court and no
decree of the trial court thereafter survived, the decision of the appeal by the State Government replaced
the special resolution passed by the Board and such
decision if adverse to him gave him a cause of action
and the period of limitation commenced to run against
him only from the date of such decree. The argument
was that even though the cause of action in respect of
f}UCh wrongful dismissal arose on the date when the
,. order of the Board was communicated to hiμi, once an
1 • appeal was filed by him against that order within t1'.e
period prescribed that cause of action was suspended •
and became merged in the cause ·of a.ction which
•
Sita Ram Goel
v.
1'he lW. ·unicipal
Board, J(anp1uBhagwati j.
•
Sita Ram Goel
v.
The Municipal
JJoard, /(anpur
Bhagwati ].
t
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ll58
SUPREME COURT REPJRTS
[1959]
would accrue to him Qn the decision of his appeal by
the State Government. The special resolution of the
Board would then merge into the decision of the State
Government on appeal and the only thing which then
survived would be the decision of the State Gpvernment on which either there would be a resuscitation or
revival of the cause of action which had accrued to
him on the communication of the order of the Board
or the accrual of a fresh cause of action which could
be ventilated by him within the period of limitation
commencing therefrom.
The initial difficulty in the way of the appellant,
however, is that departmental enquiries even though
they culminate in decisions on appeals or 'revision
cannot be equated with proceedings before the regular
courts of law. As was observed by this Court in State
of U ttar Pradesh · v. Mohammad N ooh (1) :
''. ........ an order of dismissal passed on a departmental enquiry by an officer in the department and
an order passed by another officer next higher in r:i.nk
dismissing an appeal therefrom and an order rejecting
an application for revision by the head of the department can hardly be equated with any propriety with
decrees made in a civil suit under the Code of Civil
Procedure py the Court of first instance and the decree
dismissing the appeal therefrom by an appeal court
and the order dismissing the revision petition by a yet
higher court, ............ because the departmental tribunals of the first instance or on appeal or revision are
not regular courts manned by persons trained in law
although they may have the trappings of the-courts of
law."
The analogy of the decisions of the courts of law
would therefore be hardly available to the appellant.
•
Our attention was drawn in this connection to cases
arising under s. 144 of the Code of Civil Procedure
which have held that the period of limitation is to i){l
calculated.from the date of the original decree which"'.
gave rise to the right of restitution and not from the
\
• date of the decision of the last appeal which was filed
(1) [1958) S'.C:R. 595·
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!S'.C:Rl.
8UP~EME JJ©URT 'REPORTS
<U59
against! it. Reliance W'as ',Pla~ed' on 'the followihk
observations of B,.' K. Mukherjea J. (as 'he then was)
in Bhabdranjan: J'Jas v'. N ibaran Chandra (1) :
'sitd Ram Goel
v:
. "The 'question therefore tha.t re1J,lly falls fo'i:
deterqiination is as1 to whether tl:re•tiμie·for,such an
application ought to b"e calcu1ated: from the· date' ol:'
the .decision of the last appeal, or fro in the decree
which for the first time gave1;'he 'appellant a ·right' to
apply.for restitution.
1It iS ''Conceded by 'tlie learhed
i'\dvocate for ·the appellant tlrat he ·had undoubttldly
the'right ta 1pray for restitution at th'e time wh~n- th'e
judgment was passed by the Mu;nsifi
His contentio\:i
is that it·wa:s not rtecessary fot him to apply· at the
first opportunity·as there was an' ap~ea:l taken against
that decision of the' trial judge arrd he could .wait· till
the judgment of the Appellate Court was pronotmced:
Th6 ~nicipal
'Hoard, ·f('ah'pur
A filer the Appellate Court: had passed fits 'decision thli
decree cif the tl'ial b0urt would no longer ~e in '6:l<istence and •he wou'ld !be entitled to base bis rights '!:d
ge14 restitution on the Appellate Court's decree .. "Ji find
myself unable to ·accept "this·'c'ontention as·tehit'ble. If
the right to appl1 ·for restitution .W~s available to the'
ruppellant·as soon ,as the first' coi'trt :passed 'its jtldgment,
time would certainly begir\. to run from <that.(;Ia.te
under Art: 181' and the mere fact that •th!) judgment
was challenged by way of an appeal which mighi;
event'ually
~et it aside, does not,, in •my opinion,
operate tO' ;mspend the running of' time. 'Nor· w~ul'd
the appellate court's dectee 'into :which the' decree. of
the trial court would ·undoubtedly merge give' the'
party a fresh starting point- for limitation."
The analogy of the dem:ee of the trial courtmergin_g
into a decree of .the appeai court' elearly dees liot
apply to these cases. The· ·observations of Rankin:
C. J. ·in Hari Moha;n
v~ Parameshwar Shau•(') are
also in point.. Said ·the learned Chief Justice' -at
P 7Q ,_
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" 1But the applicatilnl: ·to' be- niade 'unifor ·s. '144·
n application which must be made to the Comt of
·first instance whether the decree varied <JI'
reversed was passed by that Court or. a higher Court. •
(1) A.I.R. 1939 Cal.,349, 35I.
(2) (1928) f.i..R. ~6 Cal'. 61, 18·
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BhaCwati j.
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Sita Ram Goel
v.
The Municipal
Bpartt .Kantn'r
Bhagwati ].
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1160
SUPREME Ce>1JRT REPJRTS
r1959J
Tha.t Court .h.a.s to d,et~rmine whether the applicaht is
entitled -to apy: and•.wh~t b,enefits, by way of •restitution or oth~rwise, by):eason of the decree of the·appellate cQu.rt var:ring or:reve~sjng a•previous,decr'ee. 'iVe
have to--det~mmine 1 this. ca,se. under Ant .. 181, ,of the
Limitation Aa£,·~rh'ich direqts us, in g~neral langua;ge,
to fin'd out ,the. date. on ~vhich the applicant's right
accrued. In.the ordinary and na.tural meaning df"the
}vords,! their,,righ'.t accrued immediately the ·District
Judge r,<;lversed ~he de.cision of the trial court, anti
r~duced the amou:nt of ;the plaintiff's cla:im.
'(Jnless,
th~refore, ~ve. are required by ·reasQn of the nature .of
the matter ~o ignore the effect of that decision, because
it..,was confirmed on. appeal,
~t ·seems to me .to be
w;rong to do so. • T,o R'efuse
~O' to. do .does not involve
the proposition that two decre~s for the same -.thing
m;i.y .be exeputed simul~a.neously. Nor· does. it inv.olve,.
so, fa,r iw I caμ see, the affirmance of any other proposition, that can he 'r,egarded, as inco)l venient .or
absμi;d. "
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• 1 Fwthe:c, wh\ln..even.i£.the analog,y applies, where the
decree of the appeal.court only· affirms the decree of
the trial court, this Court has held in the State pf
U. P. v. Mohd. Noah('), that the original decree of the
trial court remains operative. , This Court has said at
p. 6ll :- ·,
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"In the next place, whlle it is.true that a decree
of a court of .first instancii .may -be said to merge in the
decree passed on a pp.ea! therefrom or even ;in the
order passed in revision, it does so only for certain
purposes, namely, for the purposes o:fi computing the
period of limitation for .execution of the decree as in
Ba(itlc Nat[; v. 1Munni Dei ('), or for computing the
period of limitation for an ,application for, final decree
in a n;10rtgage suit _as,in, Jawad 'Hussain v . . Gendan
Singh(').
B1.1t as pointed by Sir Lawrence Jenkins in
delivering the judgment bf the Privy CounlliJ, in
Juscurn Boid v. P,irthichand.Lal ('),,whatever be~
theory urn;t~r other !lystems of la \V., under -thy India1
litw an,d procequre. an, original decree.is not suspended
(<) [1958] S.C.R. 595.
(2) 41 I.A. 104 .
(3) 53 I.A-, 1~7·
(4) 46 I.A. 52 .
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SBR~EM.E ~OUR'E' REBOR'.DS.
HGI
·by, the.presentation.of an ·1appeal0 tiJ.or is its;•opefatioh
"interrupted where ;the. decree on'. appeal is merely;, orie
of dismissal., ·Thern·is, ·:ri_dthing in .. the Indian' Jaw fo
warrant the suggestion: that the Clecree or order: of tlie
court or tribunal .of .the first ·instance becomes fiha:l
only o'u.the·ter'llination of all proceedings by .way .of
appeal or revision:".l'he_filing.~f the appeal or revision
may put the decree or order in. jedpardy but until it ·is
reversed or modified it remains effective .. ",
The original decree' being ·thus operative what we
are. really concerned with is ·the c·ommencement ·of the
period of limitation as prescribed in the relevant
statute.and if. the statute prescribes that it commences
from the date of the !accrual. of the cause of action
there is no getting'•behind these words ih spite of the
apparent iniquitS of• applying the same.
As .was
pointed out by Seshagiri: Ayyar J. 'in Mathu J(orakkai
Ghetty v. Madar Am'(llal (1):
"Therefol·e -in my opinion, the true rule deducible
from these various decisions of the Judicial Committee
is this: that subject to the exemptions, exclusion,
mode of computationand the excusing of delay, etc.,
w:!Jich are provided in the Limitation Act, the langu-
.age of the third column of the first schedule should be
so interpreted :as to citrry out. ~)rn, tr:u9 in bention of the
legislature, that is to say, by dating the c~use of
action from a date when1the. re,m.edy is available to
th
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The cause of action in •the •pres~nt case a:ccrued to·
the appellant the moment the resolution of the Board
was communicated to him and that was the date of
the commencement of the limitation. ·,The remedy,
if any, by .way 'ilf filing -a suit against \the Board in
respect of his· wrongful dismissal was a vailA.ble to him
from that date ·and it was open to him to pursue that
remedy within the period of limitation pl'escribed
under s. 326 of the Act.
e result 'is no doubt 'unfort'unate for the appellant,
cause the trial court found: in his favour in.regard to
x95f.
Sita Rani Goel
v.
Tlte Mioiicipal
Board, f(anp1i>
Bltagwati J.
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is plea of wrongful dismissal. If he had only brought
the suit within the period prescribed by s. 326 of the •
(>} (I9r9) I.L.R. 43 Mad. 185, 2I3.
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Sit'll Ram Goel
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v.
The Municipal
BoaP'd, Kanpur
Bhagwali ].
August z9.
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SUBREME ([)OUR'.!! .-lRIEFck:J1S
[1959]
Act; he miglit possibl5' }).ave got'some .relief from the·
Gourt.
He however chose to· wait. Jtill the I decision of
the State,Government on his appeal a'nd :overstepped
the limit of time to his·owrt detriment. Wear\! unable to come to any other conclusion th'an tqe one
r~ached above and the appeal mu§t, therefore, stand
dismissed ; but in the peculiar circumstances of the
case we make no order ;i.s to.costs:
The appellant was- giv.en leave to proceed as a
pauper and he prose'cuted this appeal in forma
pauperis. .H& has fa~led.in the appeal and we do order
that he ·shall pay the .court-fee which would have been
pa.id by him if'he had not been permitted to appeal as
a;-pauper. 'The Registrar shall send to the Attorney.
General for India a memor.a.ntlum of the court-fees
payable by him a;s required by Or. XIV, r. 12, of the
Supreme Court Rules.
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Appeal dismis~~d .
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·PURANM:ALL AGARWA~LA:
1J.
'l'HE ST.ATE OF ORISSA
(B. P. S!NHA and JAFER IMAM J-J:)
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Double PU1iishmmt-Perso" convicted of transportili.g ojnumIf'ca1t be convicted of being it< possession of opiwn also-Sente1'ce-
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Opium Act (I of r878), ss. 4 and 9.l-Code of Criminal Procedure,
(I( of r,llg,o), s. 35-fodian Pe1ial Code (X'LV of r86o), s. ';I,
The appellant was caught while he was himsel> transporting
OJlium.
I;Ie was convicted undet,s. 9(a) of the Opium Act for
"possession" of opium and under;;. 9(1>) of the Aat for " transport" of opium and was sentenced to μndergo rigorous imprisonment for three months under each Count, the sentences
run
oonsecutiV'ely'.
The appellant contended
that "transpo "
included ''possession" and so the double punishment for posse
sfon and transpott was riot warranted by law :
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Had, 'that possession of opium and transport of opium are
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two separate offences and the appellant could be convicted for
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