Mrs. Khairunnissa A.K Siddiki v. The Municipal Corporation Of The City Of Bombay

Patel, J.:— This is an appeal by the widow and two children of one Siddiki who died as a result of a collision between a municipal car BMU 1274 in which he was riding and a bus No. 9481 belonging to the Bombay Electric Supply and Transport Undertaking of the Bombay Municipal Corporation.

2. The deceased was an employee of the Corporation in the Fire Brigade Department. The car BMU 1274 belonging to the Corporation was maintained for the transport of the Fire Brigade Chief Officer. On the day of the accident, i.e February 10, 1960, the deceased Siddiki, appellant No. 1 and her two children were travelling in the car which was being driven by respondent No. 5. Near the Mahalaxmi Bridge, the bus collided against the car, as a result of which Siddiki and his two children died, while appellant No. 1 sustained serious injuries. On March 4, 1960, appellant No. 1 addressed two notices, one to the General Manager, B.E.S.T Transport House, and the other to the Municipal Commissioner, Bombay Municipal Corporation, Municipal Head Office, Bombay, in connection with this accident, conveying in clear terms that the bus belonged to the Corporation, that the accident occurred by reason of the negligence of the bus-driver, that appellant No. 1 suffered monetary loss by the death of her husband, that the children were young and had to be brought up and that the two of her children were dead. In all, she claimed damages to the tune of Rs. 2,95,376. In the notice to the General Manager, B.E.S.T Undertaking, it is made perfectly clear that they would be liable in law to pay to the appellant the said damages. The total claim made in both the notices was Rs. 2,95,376. Thereafter, she filed an application for compensation before the Motor Accidents Claims Tribunal under s. 110 of the Motor Vehicles Act in April of 1960. Defendant No. 1 is the Bombay Municipal Corporation, No. 2, is the General Manager, Bombay Electric Supply and Transport Undertaking, No. 3 is the Municipal Commissioner, No. 4 is the driver of the bus and No. 5 is the driver of the motor car in which the deceased was being driven.

3. The first contention raised on behalf of the defendants was that, inasmuch as a notice as required by s. 527 of the Bombay Municipal Corporation Act of 1888 was not given, the application was incompetent. The Tribunal was invited to hear this issue as a preliminary issue, which it did, and it held in favour of the defendants and dismissed the application. The appeal challenges the decision of the learned Tribunal.

4. It raises the question of interpretation of s. 527 of the said Act. The section, so far as relevant, is as follows:

“No suit shall be instituted against the corporation or against the Commissioner, the General Manager… in respect of any act done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act—

(a) until the expiration of one month next after notice in writing has been, in the case of the corporation, left at the chief municipal office and, in the case of the Commissioner, the General Manager…delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney or agent, if any, for the purpose of such suit; nor

(b) unless it is commenced within six months next after the accrual of the cause of action.”

5. Before the Tribunal, it was contended for the appellants that an application under s. 110 of the Motor Vehicles Act was not a suit. Secondly, it was contended that, in any event, it was not obligatory on the part of the Corporation to enter into the venture of Transport; Undertaking, and it could not, therefore, be said that the suit related to an act done in pursuance or execution or intended execution of the Act. The Tribunal rejected both these contentions of the appellant. A reference to s. 527 clearly shows that it restricts the right of a citizen to take resort to a Court of law in the usual way and, therefore, it must ordinarily be construed strictly. It is often suggested that the Municipal Acts are for public good, and, therefore, their provisions should be construed liberally. But the rule cannot be applied to all cases and in all matters. Much depends upon the nature of the provision, the object to be achieved and its scope.

6. On the one hand, it is argued on behalf of the Corporation that the word “suit” has unrestricted meaning and it means any legal proceeding in respect of a civil right wherever taken. On the other hand, it is contended on behalf of the appellant that by the word “suit” is meant a proceeding which is commenced by a plaint in a civil Court. The question is, which of the interpretations is correct.

7. The law of civil procedure is contained in the Code of Civil Procedure, 1908, which replaces its earlier counterpart. Section 26 says:

“Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.”

8. The word “prescribed” has been defined in the same Code to mean “prescribed by the rules framed under the Code of Civil Procedure”. It is obvious, therefore, that, so far as the Code of Civil Procedure is concerned, the word “suit” means a suit instituted in a civil Court by the presentation of a plaint, and it would not be possible to call any other proceeding a suit even if it is a proceeding instituted in a civil Court, if it is not done by a plaint. In Hansraj Gupta v. Official Liquidators, Dehradun, Mussoorie Electric Tramway Co. . 1932 L.R 60 I.A 13, S.C 35 Bom. L.R 319., the Privy Council had to deal with the meaning of the word “suit” as used in s. 3 of the Indian Limitation Act, while considering the question as to whether or not the claim was barred by time. Their Lordships said that the word “suit” ordinarily means, and apart from some context must betaken to mean, a civil proceeding instituted by the presentation of a plaint. In the Indian Limitation Act, the word “suit” as in the present case under the present Act is not defined. Section 2 of the Limitation Act says, unless there is anything repugnant to the context, a suit does not include an appeal or an application. Their Lordships held that an application made by the Liquidator in respect of a claim was not a suit for the purposes of s. 3 of the Indian Limitation Act, and the application of the Liquidator could not, therefore, be dismissed as a suit instituted under s. 3 of the Act. In Venkata Chandrappa Nayanivaru v. Venkatarama Reddi . 1898 I.L.R 22 Mad. 256., in relation to a proceeding in execution, the Court held that merely because it is capable of terminating in a decree or an order having the force of a decree, it could not on that ground alone be deemed to be a suit within the meaning of the Code, as a suit must, according to s. 48 (Civil Procedure Code of 1822), commence with a plaint. That the word “suit” can have a restricted meaning is illustrated by the decision in Indrajitsinghji v. Rajendrasinghji . 1955 57 Bom. L.R 962. and The Secretary of State v. Kundan Singh . 1932 I.L.R 13 Lah. 672.. In the first case, it was held that s. 86, Civil Procedure Code, is not attracted to an application for letters of administration is spite of s. 141, Civil Procedure Code. In the second case, it was held that a proceeding under para. 17 of the Second Schedule to the Civil Procedure Code was not a suit for the purpose of s. 80 of the Code. It was held that a notice was not required to be given to the Secretary of State for India in Council in respect of a contemplated proceeding of this nature. Shadi Lal, C.J, incidentally observed (p. 673):

“…It may, therefore, be stated as a general proposition, that, unless there is any special provision to the contrary, a proceeding that does not commence with a plaint cannot be held to be a suit.”

9. To the same effect is the decision in Hafiz Qamar Din v. Nur Din . [1936] A.I.R Lah. 136., where it was held that an application under para. 20 of Schedule 2 of the Civil Procedure Code was not a suit. Section 86 of the Civil Procedure Code which protects the rulers and ruling princes of the former States from suits, came to be considered by the Supreme Court in Bhagwat Singh v. The State of Rajasthan . [1964] A.I.R S.C 444.. Speaking for the Court, Shah J. said (p. 446):

“…A proceeding which does not commence with a plaint or petition in the nature of plaint, or where the claim is not in respect of dispute ordinarily triable in a Civil Court, would prima facie not be regarded as falling within S. 86 Code of Civil Procedure.”

10. It was held that a proceeding for adjudication under the Industrial Disputes Act does not fall within the word “suit” under s. 86.

11. In Manjunath Badrabhat v. Venkatesh Govind Shanbhog, the question that fell for consideration was whether a decision in execution proceedings would be res judicata7 under s. 13 of the Procedure Code, Act X of 1877. While considering this question, the Court, in view of the fact that the decision under s. 47 corresponding to s. 244 of the old Code was deemed to be a decree, held that the execution application must be regarded as a suit and the decision thereon as in a suit. Holding so, the Court held that the principles of res judicata under s. 13 of the Code applied. In this connection, another decision also on the question as to whether a decision in execution proceedings was res judicata was referred to before us, where it was held that an execution proceeding was a suit within the meaning of that section. In view of the subsequent decision of the Privy Council in the case of Ram Kirpal Shukul v. Mussumat Rup Kuari . 1883 L.R 11 I.A 37., it is difficult to hold that the reasoning given in these cases still holds good. The Privy Council has pointed out that the principle of res judicata enunciated in s. 11 of the Civil Procedure Code which corresponded to the earlier section are not exhaustive, and apart from that section on general principle a decision in the execution proceedings was res judicata in a subsequent proceeding between the same parties. In Vajeram v. Purshotumdas . 1904 7 Bom. L.R 138., while considering the question under s. 43 of the old Code of 1882 which is similar to O. II, r. 2, of the present Code, Tyabji J. construed the words “to sue”. Relying on the ordinary dictionary meaning of the words “to sue” which is to make a legal claim or to take legal proceeding against any person, he held that the claim made before him in the execution proceedings was barred by that section. While considering the question of limitation in Assan v. Pathummaa . 1897 I.L.R 22 Mad. 494., the Court held that the term plaint did not mean a plaint duly stamped and it refused to give a limited meaning to the word “plaint” being duly stamped. It was said (p. 495):

“…A ‘plaint’ in law means merely a private memorial tendered to a Court, in which the person sets forth his cause of action; the exhibition of an action in writing.”

12. Naturally, on behalf of the Corporation, much reliance has been placed on these observations. Then we have got the decision in Bhoopendro Narain Dutt v. Baroda Prosad Boy Chowdhry . 1891 I.L.R 18 Cal. 500., where the case arose under the Court of Wards Act, and the Court held that the word “suit” included execution proceedings. The last case cited on behalf of the Corporation is that of Abdul Gani v. The Reception Committee, Indian National Congress . 1935 I.L.R 60 Bom. 645, S.C 38 Bom. L.R 380.. In this case, Wadia J. said (p. 645):

“A suit is an original proceeding between a plaintiff and a defendant. The term ‘plaintiff’ includes every person asking any relief against any other person by any form or proceeding whether the same be taken by cause, action, suit, petition, motion, summons or otherwise….

The provisions of Order I, rule 8, of the Civil Procedure Code, 1908, are applicable to a petition filed under section 14 of the Indian Arbitration Act, 1899, to set aside an award on the ground of the misconduct of the arbitrator.”

13. It is no doubt true that these cases illustrate that the word “suit” is capable of having a very wide connotation and may include, depending upon the context, any legal proceeding commenced by one person against another in order to enforce a civil right. From this, it cannot necessarily be held that the word “suit” must be given such a wide meaning wherever it occurs. In order to determine the ambit of the word used, the Court must consider the object which the provision was was intended to achieve.

14. Under s. 527 of the Bombay Municipal Corporation Act, two things are contemplated, namely, that a notice of the intended suit must be given and that the suit must be filed within six months after the accrual of the cause of action. The two objects underlying the enactment are that the Corporation should have notice of the claims so that it may make amends and be saved from unnecessary costs and that fraudulent and state claims should be prevented. The first object is achieved by the requirement of a notice and the second by reducing the period of limitation. It is clear that the intention is to apply the section to such proceedings as have a period of limitation of much more than six months and are suits—in other words to such proceedings as are regarded as suits under the Indian Limitation Act. It is proper, therefore, that the word “suit” should have the same meaning that it has in the Limitation Act. As decided in Hansraj Gupta, the ordinary meaning of the word “suit” as commonly understood is a proceeding which is commenced by the presentation of a plaint. There is nothing in the Act to suggest that the word “suit” should have a wider meaning. On the contrary, s. 517 indicates otherwise. Clause (g) of sub-s. (1) in terms refers to a suit or other legal proceeding brought against the corporation or against the commissioner or other officers. Similarly, cl. (h) also refers to a suit or legal proceeding brought against the corporation or against any of the named officers. When the Act itself makes this distinction between a suit and a legal proceeding, there could be no justification for us to construe the word “suit” in its wider sense conveyed by its dictionary meaning. We must, therefore, having regard to the fact that it is a section which restricts the ordinary and normal right of a citizen, give it the ordinary meaning in preference to the wider dictionary meaning of the word “suit”.

15. Mr. Madan very emphatically argued that s. 2, cl. (10) in the original Limitation Act and s. 2, cl. (1) of the new Limitation Act, 1963, would suggest that a suit can include an appeal or an application. He says, if that is so, we should give to the word “suit” such a meaning as would include an application. To give such a wide meaning to the word “suit” is, in our view, not justified. If such a meaning is given, it may well mean that even when a person wants to file an appeal against the Corporation he must again give a notice, because even an appeal would amount to a suit. In any event, it may as well apply to execution proceedings since such proceedings are suits as was held in Emperor v. Ezekiel . 1904 6 Bom. L.R 54., and Vajeram v. Purshotumdas. Again it may apply even to writ petitions which cannot be countenanced.

16. We are also not satisfied that the Tribunal under the Motor Vehicles Act, acts as a Court. It is undoubtedly true that, till 1960, in respect of such a cause of action, a suit could be filed. It is only in about 1960 that the said Tribunal was constituted for deciding claims of this nature. It is said that if those suits are replaced by applications before the Tribunal, we could still consider these applications as suits and the Tribunal as Court. We cannot accept this contention. The Legislature was entitled to take away certain matters out of the purview of s. 527 of the Act, and it has done so. The Tribunal is not a Court, and its constitution is not governed by any legislation applicable to civil Courts. The proceeding itself has to be commenced by an application in the prescribed form, and the resultant order is not even called a decree. Section 110C of the Motor Vehicles Act provides for the procedure and it shows that the Tribunal is entitled to follow such summary procedure as it may think fit, subject to the rules that may have been made. It also provides by s. 110E that the amount due under the Award shall be recovered through the Collector as arrears of revenue. Section 110F expressly bars the jurisdiction of civil Courts in places where Claims Tribunals have been constituted. The State, by reason of the powers conferred upon it by s. 111 of the Act, framed rules of procedure for the Tribunals, and it is only where no specific rules exist that the Tribunals are enabled to follow the provisions of the Civil Procedure Code. It is, therefore, impossible to hold that the Tribunal is a Court.

17. We, accordingly, hold that the present application is not a suit under s. 527 of the Bombay Municipal Corporation Act, and, therefore, there is no impediment in the applicants' way in proceeding with the same.

18. In view of what we have said above, it is not really necessary to consider the other contentions raised on behalf of the appellants. Incidentally, we may observe that two notices have been served by the appellants, one on the General Manager of the Bombay Electric Supply and Transport Undertaking and the other on the Municipal Commissioner. Both the notices are addressed to them in their official capacities and not to them as individuals. As to whether or not such notice is sufficient is a matter of construction of the notice itself. It is true that in Nathubhai v. Municipal Corp. B'bay . 1957 60 Bom. L.R 515., a Bench of this Court held that a notice to be valid under s. 527, must be addressed to the Municipal Corporation, and, therefore, the Corporation could contend that the notices were bad. In Pandurang v. Ramchandra . 1930 32 Bom. L.R 1252., the notice which was addressed to the President of the District Local Board was held to be sufficient to satisfy the requirements of s. 136 of the Local Boards Act. In G.G in Council v. G.S Mills . [1949] A.I.R Pat. 347, F.B., a notice addressed to the “Chief Commercial Manager or Subordinate Officer” who is entitled to deal with the claims was held to be valid notice. In this connection we may refer to the decision in Lady Dinbai Petit v. Dominion of India . 1950 53 Bom. L.R 229.. While considering the question as to whether a notice under s. 80 was necessary for amendment of the cause of action in a suit against the Government, Chagla, C.J, after referring to the observations of the Judicial Committee in Bhagchand Dagadusa v. Secretary of State for India . 1927 L.R 54 I.A 338., said (p. 243):

“…But even so, as pointed out by Sir John Beaumont in Chandulal Vadilal v. Government of Bombay . 1942 45 Bom. L.R 197., the section should be construed with some regard to commonsense and to the object with which it appears to have been passed.”

19. We think the same principles apply in construing the notice. Moreover, under s. 501 of the Bombay Municipal Corporation Act, the Municipal Commissioner and the General Manager have to make payment of any compensation claimed by a person with the sanction of the respective Standing Committees. Therefore, the notices which have apparently reached the Corporation would appear to be proper notices.

20. In Nathubhai's case the observations of the Judicial Committee in Bhagchand Dagadusa v. Secretary of State for India, to the effect that section (s. 80) is explicit and mandatory and admits of no implications or exceptions, were followed. In that case, however, there was no notice at all. Similarly, in Vellayan Chettiar v. Province of Madras' . 1947 49 Bom. L.R 794., and in Government of Bombay v. Wadian . 1949 51 Bom. L.R 635., where similar observation was made, only one plaintiff had given notice under s. 80 but he and another filed the suit and the suit was held to be bad.

21. These cases are distinguishable. The Municipal Commissioner being the chief executive head of the Corporation received the notice and there can be no reason to hold that it is not a proper notice and thus provide a handle of oppression to the Municipality. With respect, it would appear that Nathubhai's case may require reconsideration. In this case, as we hold in favour of the plaintiff on the other point, nothing more need be said on the matter.

22. In the result, we set aside the order made by the Tribunal and direct the Tribunal to proceed with the application on its merits. The application will be heard and disposed of as early as possible.

23. The appellants will get costs from respondents Nos. 1 to 4. Respondent No. 5 to bear his own costs.

24. Order set aside.