Appeal No 149 of 1958
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 Additional Civil Judge Kanpur in Civil Suit No 257 of 1953
Appellant in person
C B Gupta 0
C Mathur and C P Lal for respondent No1
G C Mathur and C 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 article 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 from 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 had been rejected
This information was received by him on April 8 1952
Thereafter on December 81952 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 section 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 passed against him on the ground that the previous approval of the Superintending Engineer Public Health Department was not taken as required by the rules that the 1150 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 charges 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 10951 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 athat 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 bthat 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 dthat the order of dismissal was based on certain grounds which were not the suubject matter of the charge and that the Chairman of the Board was not competent to try the appellant but ethat 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
474 of 1956 before the High Court of Judicature at Allahabad and contended that the suit filed by him against the Board was within limitation
The appellant relied upon the provisions of section 326 of the U P Municipalities Act U P 11 of 1916 hereinafter 1151 referred to as the Act and contended that the period of six months contemplated by sub section
3 of section 326 plus the period of two months required for giving notice for filing the suit against the Board under sub section
1 of section 326 that is 8 months should be computed from April 8 1952 on which date the order of the dismissal of his appeal by the U P Government was communicated to him and not from March 5 1951 when the order of his dismissal by the Board was passed or March 191951 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 section 326 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 costs
An application filed by the appellant for a certificate for leave to appeal to this Court proved infructuous 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 appeal 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  3261 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 1152 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
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 section 3263 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 section 3261 would not save the appellant from the bar of limitation because be instituted his suit more than eight months after the Resolution dated March 5 1951 dismissing him from employ was communicated to him
The appellant therefore particularly relied upon the provisions of section 581 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 section 68 subject to the conditions prescribed in section 58 in respect of the punishment or dismissal of an Executive Officer and Section 581 and 2 provide  section 581 A board may punish dismiss or remove its Executive Officer by a special resolution supported by not less than 23rd members constituting the board subject to his right of appeal to the State Government 1153 within 30 days of the communication to him of the order of punishment or dismissal
2The State Government may suspend the Executive Officer pending the decision of ail appeal under sub section 1 and may allow disallow or vary the order of the Board
 It was argued by the appellant on the strength of 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 tile State Government
If that was so lie 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 wrongful 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 section 582 which empowered the State Government to suspend an employee pending the decision of the appeal contending that such power vested in the State Government posited that the order of dismissal every though validly passed in accordance with the conditions specified in section 581 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 officer who had been already dismissed and the provision in that behalf would then be nugatory
It was therefore argued that such power vested in the State Government necessarily involved the consequence that the order of dismissal could not be operative by its 1154 own force but would continue in abeyance until the decision of the appeal once an appeal was filed by the employee against the order within the period specified
On a plain reading of the provisions of section 581 and 2 we are of opinion that this contention of the appellant is not tenable
One condition of the validity of the order of dismissal made by the Board is that the special resolution in that behalf should be supported by not less than 23rd 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 eg the non observance of the principles of natural justice and the like
There is nothing in the provisions of section 581 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 under the special Act does not apply to a suit
There is nothing in section 581 which expressly or impliedly bars his right of suit
The provisions contained in section 582 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 employee who has thus appealed against the rigour of the order of dismissal passed by the Board against him
The employee may have been dismissed by the 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 dismmissal 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 lie would not have to starve during the period that the appeal was pending before the State Government
The provisions of section 582 have to be read along with those of section 581 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 section 581 can be read consistently with section 582 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 582 merely prescribes the powers which the State Government 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 of his appeal once he filed an appeal to the State Government as prescribed
We do not see any words in 147 1156 section 581 and 2 which would suspend the operation of the order passed by the Board or render it ineffective by reason of the filing or the pendency of the appeal
As a matter of fact the legislature in section 613 of the very same Act while dealing with the right of appeal from the order  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 section 581 and section 613 of the Act is thus sufficient to show that no such consequence was intended by the legislature when it enacted section 581 of the Act
A similar provision enacted in the proviso to section 71 of the U P District Boards Act U P X of 1922 may also be referred to in this context
While 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 case 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 section 58 of the Act also goes to show that no such consequence was intended by the legislature
The enactment of section 581 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
Board Shahjahanpur vs Kailashi Nath 1 which turned on the construction of section 71 of the UP District 1 A IR 1948 All
1157 Boards Act set out above in support of his contention
The provisions of that section however are quite distinct from those of section 581 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 section 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 comunication 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 section 581 and 2 of the Act what is the other principle which the appellant can call to his aid in order to support his contention  He tried to equate the special resolution passed by the Board 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 such wrongful dismissal arose on the date when the order of the Board was communicated to him once an appeal was filed by him against that order within the period prescribed that cause of action was suspended and became merged in the cause of action which 1158 would accrue to him on 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 Government 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 Uttar Pradesh vs Mohammad Nooh 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 rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department  an hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure by 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 tinder section 144 of the Code of Civil Procedure which have held that the period of limitation is to be 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  1159 against it
Reliance was placed on the following observations of B K Mukherjea J as he then was in Bhabarajan Das vs Nibaran Chandra 1  The question therefore that really falls for determination is as to whether the time for such an application ought to be calculated from the date of the decision of the last appeal or from the decree which for the first time gave the appellant a right to apply for restitution
It is conceded by the learned Advocate for the appellant that lie had undoubtedly the right to pray for restitution at the time when the judgment was passed by the Munsif
His contention is that it was not necessary for him to apply at the first opportunity as there was an appeal taken against that decision of the trial judge and lie could wait till the judgment of the Appellate Court was pronounced
After the Appellate Court had passed its decision the decree of the trial court would no longer be in existence and lie would be entitled to base his rights to get restitution on the Appellate Court s decree
I find myself unable to accept this contention as tenable
If the right to apply for restitution was available to the appellant as soon as the first court passed its judgment time would certainly begin to run from that date under article 181 and the mere fact that the judgment was challenged by way of an appeal which might eventually set it aside does not in lily opinion operate to suspend the running of time
Nor would the appellate Courts decree into which the decree of the trial Court would undoubtedly merge give the party a fresh starting point for limitation
The analogy
of the decree of the trial court merging into a decree of the appeal court clearly does not apply to these cases
The observations of Rankin CT in Hari Mohan vs Parameshwar Shau 1 are also in point
the learned Chief Justice at  But the application to be made under section 144 is an application which must be made to the Court of the first instance whether the decree varied or reversed was passed by that Court or a higher Court
1 AIR 1939 Cal
349 35 2 Cal
61 78
1160 That Court has to determine whether the applicant is entitled to any and what benefits by way of restitution or otherwise by reason of the decree of the appellate court varying or reversing a previous decree
We have to determine this case under article 181 of the Limitation Act which directs us in general language to find out the date on which the applicant s right accrued
In the ordinary and natural meaning of the words their right accrued immediately the District Judge reversed the decision of the trial court and reduced the amount of the plaintiff s claim
Unless therefore we are required by reason of the nature of the matter to ignore the effect of that decision because it was confirmed on appeal it seems to me to be wrong to do so
To refuse so to do does not involve the proposition that two decrees for the same thing may be executed simultaneously
Nor does it involve so far as I can see the affirmance of any other proposition that can be regarded as inconvenient or absurd
Further when even if the analogy applies where the decree of the appeal court only affirms the decree of the trial court this Court has held in the State Of U P vs Mohd Noolt 1 that the original decree of the trial court remains operative
This Court has said at p 611   In the next place while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision it does so only for certain purposes namely for the purposes of computing the period of Limitation for execution of the decree as in Batuk Nath vs Munni Dei 2 or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain vs Gendait Singh 3
But as pointed by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid vs Pirthichand Lal 4 whatever be the theory under other systems of law under the Indian law and procedure an original decree is not suspended 1  2 41 IA 104
3 53 1 A 197
4 46 IA 52
1161 by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal
There is nothing in the Indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision
The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective
 The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statuite and if the statute prescribes that it commences from the late of the accrual of the cause of action there is no getting behind these words in spite of the apparent iniquity of applying the same
As was pointed out by Seshagiri Ayyar J in Mathu Korakkai Chetty vs Madar Ammal 1  Therefore 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 computationalid
the excusing of delay etc which are provided in the Limitation Act the language of the third column of the first schedule should be go interpreted as to carry out the true intention of the legislature that is to say by dating the cause of action from a date when the remedy is available to the party
 The cause of action in the present case accrued 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 of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under section 326 of the Act
The result is no doubt unfortunate for the appellant because the trial court found in his favour in regard to his plea of wrongful dismissal
If he had only brought the suit within the period prescribed by section 326 of the I Mad 185 213
1162 Act he might possibly have got some relief from the Court
He however chose to wait till the decision of the State Government on his appeal and overstepped the limit of time to his own detriment
We are unable to come to any other conclusion than the one reached above and the appeal must therefore stand dismissed but in the peculiar circumstances of the case we make no order  to costs
The appellant was given leave to proceed as a pauper and he prosecuted this appeal in form a pauperis 
section lie has failed in the appeal and we do order that he shall pay the court fee which would have been paid by him if he had not been permitted to appeal as a pauper
The Registrar shall send to the AttorneyGeneral for India a memorandum of the court fees payable by him as required by Or
XIV r 12 of the Supreme Court Rules
Appeal dismissed


Summary:
The respondents purchased the demised premises by a registered sale deed dated 7th December 1977 for Rs70000
The appellant was in actual possession of a part of the premises as a tenant of the vendors at the date of purchase
After the purchase the respondents served the appellant with a notice dated 13th December 1977 calling upon him to pay the rent due and deliver vacant possession of the demised premises
The appellant replied to the notice on 29th Decem ber 1977 alleging that the vendors had orally agreed on 14th October 1977 to sell him the property for Rs70000 and had received Rs5000 as earnest money and that he was under no obligation to pay the rent and vacate the premises since he was ready and willing to purchase the property
The respondents sent a reply denying the existence of any such oral agreement
A suit for eviction was thereafter filed by the re spondents claiming rent from December 1977 to May 1978 from the appellant and since the same was not paid the appel lant it was contended had rendered himself liable to evic tion on the ground of wilful default
The courts below held that the appellant failed to pay the rent and concluded that he was a wilful defaulter and passed a decree for ejectment against him
In the appeal to this Court on the question whether it can be said 116 that the tenant s default to pay or tender rent from Decem ber 1977 to May 1978 was not wilful to avail of the benefit of the proviso to clause i of the sub section 2 of Section 10 of the Andhra Pradesh Building Lease Rent and Eviction Control Act 1960
The Court allowing the appeal
HELD 1
An act is said to be wilful if it is intention al conscious and deliberate
119A section Sundaram Pillai etc
vs VR Pattabiraman etc
 1985 2 SCR 643 refered to 2
In order to secure eviction for non payment of rent it must be shown that the default was intentional deliber ate calculated and conscious with full knowledge of its consequences
119G 3
In cases where the tenant has defaulted to pay or tender the rent he is entitled to an opportunity to pay or tender the same if his default is not wilful
The proviso to sub section 2 of Section 10 is couched in negative form to reduce the rigour of the substantive provision in Section 102 of the Act
118H 119A 4
The appellant tenant in the instant case did not pay or tender the rent from December 1977 to May 1978 not because he had no desire to pay the rent to the respondents but because he bona fide believed that he was entitled to purchase the property under the oral agreement of October 14 1977
He had also paid Rs5000 by way of earnest under the said oral agreement
He therefore bona fide believed that he was entitled to purchase the property under the said oral agreement and since he had already paid Rs5000 by way of earnest thereunder he genuinely believed he was under no obligation to pay the rent to the respondents
119E F 5
This is not a case of a tenant who has failed to pay the rent without any rhyme or reason
He was not averse to paying the rent but he genuinely believed that he was under no obligation to do so as he had a prior right to purchase the property
119H 120A 6
This is a case where the Controller should have invoked the proviso to sub section 2 of Section 10 of the Act and called upon the appellant to pay the arrears from December 1977 to May 1978 within a certain time
Failure to do so has resulted in miscarriage of justice
The 117 ejectment decree cannot therefore be allowed to stand and is accordingly set aside
Thematter will go back to the Controller who will give the benefit of the aforesaid provi so to the appellant
120A B