MUNICIPAL CORPORATION versus SRI NIVAMATULLAH S/0 MASITULLA

Citation: [1970] 2 S.C.R. 47 · Decided: 21-08-1969 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Dismissed
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Judgment (excerpt)

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MUNICIPAL CORPORATION 
1'. 
SRI NIVAMATULLAH S/0 MASITULLA 
August 21, 1969 
(K. S. HEGDE AND A. N. RAY, JJ.] 
47 
Indore Municipal Act, 1909, s. 135-Suit dec/arinJ? disntissal il!cga[-
Di.;·1nissa/ order without jurisdiction-Lbnilatio11 special plea 1101 pleaded, 
lilnitation-Special plea, wh:?ther 1111/Sf be pleaded. 
The respondent-an en1ployee of the 
appellant~Jvlunicipality fi[eJ a 
suit for J::c!aring his dismis.sal illegal a·.; th·:! order of disn1issal \Vas not 
passed by the \lunicipal Commissioner as required bys. 13 of the Indore 
Municipal Acc. but v;as made by one G. \li'ho \l.·as then actinQ: in place of 
the Municipal Con1missioner. 
The trial court acccpt-:::d the· rc~pondenfs 
plea and decreed the ~uit. The District Judge in appeal set a')ide the Uecre.e 
holding tha; the ~uit 1,vas barred by Ji1nitation as under s. 135(2) vf th.:: 
Act a suit in respect of any act done under the Act by an offio~r of the, 
Municipality had tJ be filed \Vithin six months of the accrual of tb.~ cause 
of ac:ion. 
The special plea of limitation under s. 135 (2) \\·as nut taken 
in the trial court, though in general terms a plea of limitation \L:1i; rai.seo.!. 
The High Court sot aside the decree of the District Judge and rcstoreJ that 
of the trial court. The High Court on the evidence came to the conclusion 
that no order of the Government was produced to show that G, wa1 appoint-
ed to act in place of the Municipal Cornrnission~r. and that the Jrder of 
dismissal was passed by. G. Dismissing the appeal, this Court, 
HELD : On the find;n~s. the dismissal o'der passed by G, was beyond 
his 
juri~diction. The provisions contained in s. 135 of the Act \viH be 
applicable to things done under the Act. 
Since the order of 
chlsmi~sal 
passed by G was beyond his jurisdiction. i~ was. therefo ·e, not an act done 
under the Act. [50 D-EJ 
If any special plea of limi<:ation is a defence such a defence of limita· 
tion should b~ pleaded. In the present case the Municipal Corporation did 
not plead s. 135 of the Indore Municipal Act, 1909 as a defence. Such a 
olea was not taken in the pleadings or in the trial court and the Dic;trict 
fodge should not have entertained such a plea. [50 C-D] 
Bharat Kala Bh,1nd(lr Ltd., v. 
Municioal 
Co1111nittee, 
Dlu11nu11~adn, 
[1965] 3 S.C.R. 499, followed. 
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~ 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1733 of 
H 
1966. 
Appeal oy special leave from the judgment and decree dated 
March 30, 1966 of the Madhya Pradesh High Court, Indore 
Bench in Second Appeal No. 341 of 1964. 
M. C. Bhandare and P. C. Bhartari, for the appellant. 
S. K. Mehta, A. P. Tayal and K. L. Mehta, for the respon-
dent. 
48 
SUPREME COURT REPORTS 
[1970] 2 S.C.R. 
The Judgment of the Court was de!iver.~d by 
Ray, J. 
This is an appeal from the judgment dated 30th 
March. 1966 of the High Court of Madhya Pradesh 
(Indore 
Branch) allowing the appeal and setting aside the decree of the 
lower appellate court and restoring the decree of the trial court 
with costs. 
Tl\e plaintiff's suit against the Indore Municipal Corporation 
was for a declaration that the dismissal of the plaintiff was illegal 
and that the plaintiff was still on the post of Removal Sub-Ins-
pector and a decree against the defendant for Rs. 7,488/-
on 
account of salary at the rate of Rs. 104/- p.m. from 15th April, 
1953 till the date of institution of the suit, vi:., 15th April, 1959 
and other reliefs. 
The trial court decreed the suit. 
The lower 
appellate court set aside the decree. The High Court restored the 
decree passed by the trial court. 
The case of the plaintiff Niyamatulla was that the plaintiff was 
suspended by the order of the Municipal Engineer dated 15th 
April, 1953. 
One Shri Ghatpande who acted in place of the 
Municipal Commissioner in the month of May 1953 directed the 
dismissal of the plaintiff. 
The plaintiff contended that the dis-
missal could have been only under the orders of the Municipal 
Commissioner. The plaintiff further contended that there was no 
opportunity given to the plaintiff against the proposed dismissal. 
The defence of the Municipal Corporation was that the plain· 
tiff preferred a review petition to the Munici!Jal Commissioner 
who rejected the same. 
The plaintiff thereafter preferred an 
appeal to the Appeal Committee of the Municipal Corporation 
which was dismissed. Thereafter, a revision petition against the 
order was heard by the Minister-in-charge of the Government of 
M
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