Murugayya Thevar vs The State of Madras and Another

Natesan, J.—This second appeal has been presented against the concurrent decisions of the Courts below rejecting the Plaintiff''s claim for a

declaration that the order of the District Collector, Thanjavur, dated 29th June 1949 removing him from the office of village headman of Ullikottai

village was irregular, invalid and void and for other consequential reliefs. The facts are these.

The Plaintiff had been a village headman for about 27 years. The office was not governed by statute and was non-hereditary. On a petition by

the second Respondent herein, there was an enquiry and the Revenue Divisional Officer Mannargudi by order dated 26th March 1940 dismissed

him from service. On an appeal therefrom, the District Collector of Thanjavur varied the order of dismissal into one of removal from service by

order dated 29th June 1949. The post of headman which had fallen vacant by the removal of the Plaintiff was filled by selection and appointment

of the second Defendant herein among fourteen Applicants. From the order of the District Collector the Plaintiff preferred an appeal to the Board

of Revenue which dismissed the same on 18th November 1949. The Plaintiff sent several petitions to the Government without success in the

beginning but ultimately by G.O. Ms. No. 1665, dated 13th June 1953 evidenced by exhibit B in the case, the Government directed the restoration

of the Plaintiff to the office of the village headman Ullikottai under exhibit A-4. In proceedings of the Collector dated 28th July 1953 the Plaintiff

was informed that he was restored to duty as village headman. He was directed to take bona fide residence in the charge village within one month

from the date of the order on pain of being removed from service. This was followed up by the order of the Tahsildar of Mannargudi dated 1st

August 1953 restoring the Plaintiff to the office. The second Defendant herein who had been meanwhile appointed in the vacancy instead of

handing over charge as directed by the Tahsildar moved this Court in Writ Petition No. 609 of 1953 for quashing the order of the Government and

obtained stay of further proceedings with the result that the Plaintiff could not actually function as the village headman. To the said writ proceedings

besides the Plaintiff, the State of Madras, the Board of Revenue and the Collector of Thanjavur were made parties and this Court by order dated

17th January 1955 quashed the order of the Government dated 13th June 1953 which had restored the Plaintiff to the office of the village headman

setting aside the order of the Collector dated 29th June 1949 directing the Plaintiff''s removal from service. This Court held that under the

provisions of the Board''s Standing Orders 156(4) as it stood on the relevant date, the Government had no power of revision and that, therefore,

the order of the Government in question was one without jurisdiction. The suit out of which the present second appeal arises was filed by the

present Plaintiff on 3rd September 1959, the Plaintiff contending that the order of the Collector was contrary to the procedure to be adopted in

such cases and the Collector has failed to observe the relevant rules in the matter. The contention of the Plaintiff is that the removal of the Plaintiff

by the Collector was only on the ground of not residing in his charge village and that in such cases under the rules the headman ought not to be

removed without being given a chance to so reside after his attention was drawn to the fact by the superior officer concerned. The Plaintiff

contends that there can be removal when there is disobedience to the direction to take up residence in the concerned village within a reasonable

time to be fixed by the officer.

The Revenue Divisional Officer had enquired into five charges against the Plaintiff. He found three of them proved, one of them being the non-

residence of the village headman in the village. The Collector of Thanjavur on the appeal found that the other two charges were not proved and

upheld the charge of non-residence in the village in question. In 1951, by proceedings dated 1st November 1951, the Board of Revenue, has

issued instructions that before a village officer was removed from service on the ground of non-residence, he should be given an opportunity of

taking bona fide residence in his charge village within a reasonable time to be specified and that disciplinary action should be taken against him if he

failed to do so. Even in 1944, by instructions, dated 21st December 1944, the Collector of Thanjavur had issued instructions to similar effect.

These instructions are exhibited as exhibit B-2 in the case. A reading of the instructions shows that it was issued to secure a definite end and was

intended for immediate action by the subordinate officials as the Collector on his inspection tour had noticed that several village officials were not

residing in their charge villages and that the Tahsildars were in the habit of putting cases against them handing them for punishment whenever they

were displeased. It was also observed that the Revenue Divisional Officers did not seem to be aware of the appropriate punishment inflicted for

non-residence when such cases of non-residence were brought to light.

Paragraph 2 of the instructions provided.

With a view to eradicate the evil effects of allowing village officers to reside outside their vattam a list of non-resident village officers should be got

prepared in four weeks in the form without giving time to the Revenue Inspector to negotiate.

Name of the village officer.

Village headman or karnam.

Name of the vattam in which he holds charge.

Name of the vattam in which he resides.

Distance between the two villages noted in columns (3) and (4).

Remarks.

The instruction proceeds:

In the case of village officers whose residence outside the vattam is considered to be injurious to the Government and the public interest, a

notice should be issued to them by the Tahsildar allowing them time say a week or two to take up bona fide residence and report. After the reports

are received, there should be then surprise visits either by the Revenue Inspector or by the Tahsildar and that the village officers concerned who

have sent false reports should be summarily removed. The same procedure has got to be adopted in the case of those who have not obeyed the

notice or refused to receive the notice.

After the surprise visits are completed the Revenue Inspector should report the result of their inspection to the Tahsildars with a statement of

some respectable villagers. Similarly Tahsildars also should put on record the result of their inspection.

Thus action should be taken in case of non-residence village officers and the result should be reported to me within three months to speed up

action in this respect.

The learned District Munsif held that the instruction of the Collector in question issued in 1944 was not in the nature of instructions intended to

be binding on the successive Collectors and for all time when they deal with such disciplinary cases. He held that the instructions were intended

only for the Tahsildar to take effective action. With reference to the circular of the Board of Revenue evidenced by exhibit B-3 in the case to a

similar effect, as it was issued only in November 1951 it cannot govern the impugned order of the Collector of 1949. The learned District Munsif

found that the suit having been filed beyond six years from the date of the Collector''s order the suit was clearly barfed by limitation, the running of

the limitation not being suspended by reason of the pendency of the writ petition in the High Court.

Before the District Judge in appeal on behalf of the Plaintiff while questioning the correctness of the finding of the learned District Munsif which

were against him, a further contention was raised that the order of removal was vitiated on the further ground that there was no show cause notice

as to the proposed action after finding the truth of the charges as he was entitled to under the provisions of the Government of India Act, 1935,

corresponding to Article 311 of the Constitution. The learned District Judge disagreed with the view of the learned District Munsif that the circular

of the Collector of Thanjavur in 1944 was only for the guidance of his subordinates and not binding on the Collector himself arid his successors.

However he inferred from the proceedings that it was a case where the Revenue Divisional Officer had made a surprise inspection to verify the

claim of the Plaintiff that he had taken up permanent bona fide residence and found it to be false. The learned District Judge held that the Collector

must have been aware of the provision for summary removal provided in the circular when he passed the impugned order. As regards the

contention that the Plaintiff was entitled to a second formal notice requiring to show cause against the action proposed to be taken, the learned

District Judge observed that the order of the Collector was only an appellate order and that the order of the Revenue Divisional Officer, exhibit A-

1, showed that the formality had been complied with duly. Reference had been made on behalf of the Appellant to the decision of the Privy

Council in High Commissioner for India v. I.M. Lall (1948) F.C.R. 44 (P.C.). This part of the argument on behalf of the Plaintiff was overruled

with the observation that in the absence of definite data that this technical formality was not really complied with the legal presumption that official

acts were properly done must be applied against the Plaintiff. The learned District Judge differed from the learned District Munsif on the question

of res judicata also and held that it was a clear case of constructive res judicata. Even apart from the question of res judicata, the learned District

Judge was of the view that he was inclined to agree with the view of the trial Court regarding the validity of the Collector''s order exhibit A-2 even

though for different reasons. The learned District Judge also agreed with the learned District Munsif that the suit was barred by limitation. The

learned District Judge was of the view that if Section 14 of the Limitation Act could not be invoked by the Plaintiff, he found it difficult to accede to

the contention that six years could be reckoned not from the order of the Collector, dated 29th June 1949 but from the date of the disposal of the

writ petition in January 1955.

Mr. A.V. Narayanaswami Iyer learned Counsel for the Appellant canvasses before me everyone of the points urged on behalf of the Plaintiff in

the Courts below. Learned Counsel appearing for the Government Pleader when called first expressed that he is taking a neutral attitude in the

matter leaving the second Defendant to support the order of the Courts below. However as I have desired arguments to be addressed on behalf of

the Government, also, I have heard the Counsel both for the Government and of the second Defendant in the matter.

I shall take up for consideration the question of res judicata first. The order of the Government restoring the Petitioner to office was impugned

on the ground of want of jurisdiction in the Government to entertain a revision petition and this Court following the decision in Nagarathnammal v.

Ibrahim Sahib ILR (9551) mad. 460 (F.B.) held that the Government had no jurisdiction to pass the order they did on 1st August 1953. This

Court observed that it was not concerned with the validity of the earlier order of the Government where they decided against any interference with

the orders passed by the Board of Revenue. For the present Appellant who was the fourth Respondent in the writ an argument was advanced that

in view of Article 310 of the Constitution, the power that was exercised by the Government in the case; was one that had been conferred on the

Government and it could not be-taken away by the old Board''s Standing Order 156(4). Dealing with this part of the argument this Court

observed:

What I am called upon to decide in this case is the validity of an order of the Government purporting to reinstate in office a person who had been

validity removed from service, under the rules in force. That the removal of Murugayya Thevar from service culminating with the order of Board on

18th November 1949 was lawful could not be denied. I fail to see how Article 310 of the Constitution can help the Respondent 4 to maintain the

validity of the order, dated 1st August 1953.

After disposing of the argument that the Board''s Standing Order 156(4) could not curtail the power of the Government and another legal

contention with which we are not now concerned this Court observed that since Mr. Narayanaswami Ayyar put forward these contentions the

Court endeavored to express opinion on the merits of these contentions. The merits of the order of the Government apart from the question of

jurisdiction were not challenged in the writ proceedings nor was the order of the Collector impugned on its merits. The counter-affidavit filed by the

present Appellant in the writ petition has not been exhibited and one cannot say what contentions were put forward therein. The counter-affidavit

filed on behalf of the Government in the writ petition has been exhibited as exhibit A-9. There the Government seeks to justify their order by

reference to the later circular issued by the Board of Revenue in 1951 and contend that substantial justice had been done by giving effect to the

order of the Board. Now as to res judicata, it is-not, as it could not be contended that Section 11, CPC directly applies. It is not denied on behalf

of the Plaintiff that the principle of res judicata could be applied. But what is contended on his behalf is that the validity of the order of the Collector

was not put in issue in the writ proceedings and that the only question that arose for consideration was whether the Government had jurisdiction to

entertain a revision petition in the matter. It is contended that the principle of constructive res judicata found in Section 11, CPC cannot be applied

to decisions in writ petitions. Whether the order of the Collector was invalid by reason of his not following the 1944 circular or by failure of the

authorities to give the twofold opportunity which a person holding a civil post had u/s 240 of the Government of India Act were not the subject of

consideration in the writ petition. It was contended that the order of this Court in writ petition was not based on any finding or concession as to the

validity of the order of the Collector. Whether valid or invalid the Government had no jurisdiction to issue the order and the further argument is that

even assuming that he could have raised the validity of the order of the Collector it was discretionary with the Court to go into that question and in

such circumstances, there could be no res judicata. Reference was made to Marimuthu Goundan and Others Vs. Muniammal and Others, where at

page 815 it is observed:

When it is discretionary with the Court to decide a point or not Explanation IV to Section 11 would not apply to a point which the Court may or

may not decide in its discretion.

While dealing with the applicability of the principles of res judicata in successive writ petitions under Article 32 or 226 of the Constitution, the

Supreme Court observes in The Amalgamated Coalfields Ltd. and Another Vs. The Janapada Sabha, Chhindwara, as follows:

In the present appeals, the question which arises directly for our decision is : does the principle of constructive res judicata apply to petitions under

Article 32 or Article 226 where the dispute raised is in respect of a year different from the year involved in a prior dispute decided by this Court?

We have already noticed the points actually decided by this Court against the Appellants on the earlier occasion [vide Amalgamated Goal Fields

Limited (3).] One of the points sought to be raised was in regard to the validity of the increase in the rate of tax from 3 pies to 9 pies portion ; and

since this point had not been taken in the petition and relevant material was not available on record, this Court refrained from expressing any

opinion on it. The Appellants contend that the order passed by this Court refusing permission to the Appellants to raise this point on the earlier

occasion does not mean that this Court has decided the point on the merits against the Appellants ; it may mean that the Appellants were given

liberty to raise this point later ; but oven otherwise, the point has not been considered and should not be held to be barred by constructive res

judicata. It is significant that the attack against the validity of the notices in the present proceedings is based on grounds different and distinct from

the grounds raised on the earlier occasion. It is not as if the same ground which was urged on the earlier occasion is placed before the Court in

another form. The grounds now urged are entirely distinct and so, the decision of the High Court can be upheld only if the principle of constructive

res judicata can be said to apply to writ petitions filed under Article 32 or Article 226. In our opinion, constructive res judicata which is a special

and artificial form of res judicata enacted by Section 11 of the CPC should not generally be applied to writ petitions filed under Article 32 of

Article 226. We would be reluctant to apply this principle to the present appeals all the more because we are dealing with cases where the

impugned tax liability is for different years.

In my view the principles enunciated in this decision of the Supreme Court would directly apply to the facts of this case and exclude the bar of

res judicata. As already stated, the counter affidavit filed by the Plaintiff in the writ petition has not been exhibited and what pleas were put therein

we have no idea. The order passed by the Government which was impugned in this Court in the writ petition does not proceed on the basis of the

invalidity or otherwise of the order of the Collector. Government does not say in the order in question (exhibit B-1) that the order of the Collector

or the order of the Board of Revenue on appeal therefrom or prior orders of the Government in revision were invalid or erroneous. It acts only on

the fresh contention advanced by the present Plaintiff that the case should be disposed of in accordance with the instructions which the Board had

issued in connection with the restoration to office of the village headman at Elulur, Tiruthuraipundi taluk, Tanjore district. In fact the Government

observes as follows:

If the Board''s instructions which were issued in B.P.R.T. No. 7382-51, dated 1st November 1951 had been in force in 1949 the Petitioner too

would have had then the benefit of such instructions. The Government accordingly direct that the Petitioner Sri Murugayya Thevar be restored

forthwith to the office of the village Headman of Ullikottai village.

In the counter affidavit filed by the Government in the writ petition the same stand was taken. They contended that the Government had ample

powers to freely reconsider, correct and set right prior orders passed without consideration of material questions if in their opinion they consider it

just and equitable. It was averred in the counter affidavit that substantial justice had been done by giving effect to the order of the Board, dated 1st

November 1951. It is obviously in view of these contentions that the Government could restore to office a person even though he had been validly

removed from office the observation now relied upon as constituting res judicata had been made by this Court. There does not appear from the

record to have been any controversy or discussion as to the merits of the validity of the order of the Collector, and no adjudication thereon

appears to have been invited by the parties. In my view, the order of this Court in Writ Petition No. 609 of 1953 cannot in the circumstances

preclude the Plaintiff from agitating the validity of the order of the Collector by way of a regular suit. The learned District Judge does not in fact

hold that there has been a decision in the matter but would view that it is a clear case of constructive res judicata. As already stated, the principle

of constructive res judicata cannot be imported where Section 11 of the CPC does not apply.

To take up next for consideration the question of limitation it is admitted that Article 120 of the Limitation Act applies to this case. The question

is from what date the limitation is to be computed. Whether it is the order of the Collector, dated 29th June 1949 or the order of the Board of

Revenue, dated 18th November 1949 the plaint presented on 3rd September 1959 would clearly be beyond time. The learned Counsel for the

Appellant does not contend before me that he could exclude the period of the pendency of the writ proceedings in this Court u/s 14 of the

Limitation Act. In fact, he does not claim that he could have the benefit of any of the sections of the Limitation Act which provided for excluding

certain periods in computing the time. Learned Counsel for the Appellant contends that even though he had a cause of action when the Collector

passed the order of removal and if nothing had transpired, he should have filed the suit within six years therefrom or within six years from the order

of the Board of Revenue, in the particular circumstances of this case that cause of action which arose on the order of the Collector got extinguished

and became unavailable to him by reason of the subsequent order of the Government restoring him to the office which he had been fighting for and

claiming. His contention is that it was only when the order of the Government giving him the office was set side by the order in Writ Petition No.

609 of 1953 on 7th January 1955 it became necessary for him to institute the suit. He contends that when the Government passed the order in

question his right to challenge the order of the Collector by way of a suit had not become extinguished. It was subsisting. His cause of action has

arisen and he had the right to sue but when once he was restored to office, though the cause of action was there, the right of suit was lost. He could

not have maintained a suit after that date as if he had instituted the suit he would have been met with by the plea that he had got the office he

wanted. It is pointed out that but for the second Defendant herein intervening by way of the writ petition, there would have been no necessity at all

for a suit as he would have been functioning as a village headman. The Collector had given effect to the order of the Government and the Tahsildar

had directed him to take charge.

The learned Counsel for the second Respondent points out that in effect the Plaintiff is seeking suspension of the cause of action during the

pendency of the writ petition, and that if Section 14 of the Limitation Act is not applicable, he cannot have the benefit of the period on other

grounds. My attention is drawn to cases where it has been held that no equitable grounds for the suspension of a cause of action can be added to

the provisions of the Indian Limitation Act and particularly the decision of the Privy Council in Nagendranath De v. Suresh Chandra De ILR

(1932) cal. 1 (P.C.) where their Lordships lay down the rule; In considering the question of limitation equitable considerations are out of place.

Reference can be made to the decision in Ram Charan Sahu v. Mata Prasad ILR (1927) All. 55 where at page 573 it is observed:

The Indian Limitation Act is undoubtedly an exhaustive Code governing the law of limitation in India, The cases in which the running of limitation

can be suspended are contained in the sections of the Act. It would be dangerous to lay down generally that there is some principle outside the

Indian Limitation Act under which limitation can be suspended. Such a conclusion would be quite contrary to the intention of the legislature. The

Lordships of the Privy Council in the case of Soni Ram v. Kanhaiya Lal I.L.R (1913) All. 227 237, themselves remarked that there was nothing in

the Indian Limitation Act which would justify the Board in holding that once the period of limitation had begun to run it could be suspended. Their

Lordships considered that if they were to hold that by some reason the period of limitation was suspended, they would be deciding contrary to the

express enactment of Section 9 ""that when once time has begun to run, no subsequent disability or inability to sue stops it"". This remark of their

Lordships clearly indicates that the period of limitation cannot be suspended once it has begun to run, unless that suspension is itself provided for in

the Act. We are, therefore, unable to accept any universal principle of suspension of limitation outside the Limitation Act.

After these observations the decision proceeds to consider cases of the Privy Council some of which I shall be presently adverting to. Learned

Counsel for the Appellant contends that the instant case was one of satisfaction or cancellation of the right to sue, that the right to institute the

present suit arose only when he lost the office by reason of the order in the writ petition quashing the order of the Government and the right of suit

arising later, it is unnecessary to apply the theory of suspension of limitation. Counsel places strong reliance on the decision of the Privy Council in

Mussumat Ranee Surno Moyee v. Shooshee Mokkee Burmonia (1868) 12 M.I.A. 244, Huro Pershad Roy v. Gopal Das Dutt ILR (1882) cal.

255, 259 (P.C.) and Baijnath Sahai v. Ramgut Singh ILR (1896) 23 Cal. 775 (P.C.) and the decision of the Special Bench of the Calcutta High

Court in Midnapore Zeamindary v. St. of W.B. (1960) 64 C.W.N. 1081. In Baijnath Sahai v. Ramgut Singh ILR (1896) cal. 775 (P.C.) the brief

facts are : A sale was confirmed by the Collector in 1882 and was upheld on appeal by the Commissioner in 1884. The Revenue Board set aside

both these orders and referred back the matter to the Collector for consideration of the case on merits. The Collector made an order declining to

confirm the sale and the Commissioner to whom an appeal was preferred held that it had no jurisdiction to entertain the appeal. Then there was an

appeal to the Board of Revenue and the Board of Revenue now reversed the previous decision on the ground that it was made without jurisdiction.

The effect of this proceeding was to revive the original order of the Commissioner confirming the sale. The suit was to set aside that sale and

Article 12 of the Limitation Act is the article applicable. The suit was instituted within one year of the final order of the Board of Revenue. The

Subordinate Judge and the High Court held that the case before the Collector, the Commissioner and Board of Revenue, came within the

description of civil proceeding for the same cause of action u/s 14 of the Limitation Act and that the time occupied by the proceedings could be

excluded in the computation of time for the purpose of limitation. Their Lordships of the Judicial Committee observed that they did not intend to

express any opinion upon the question whether the proceedings taken by the parties to stay the confirmation of the sale was such a civil proceeding

as referred to in Section 14, because in the view they took of the case that question did not arise. Their Lordships of the Judicial Committee

observed that in their opinion there was not during the period which had elapsed between the date of the sale and the date of the final order of the

Board of Revenue any sale to set aside which a suit could have been brought by the Appellant and Respondents therein. In Huro Pershad Roy v.

Gopal Das Dutt ILR (1882) cal. 255, 259 (P.C.) the Plaintiff''s ancestor purchased a taluk from the Government, subject to an ijara therein held

by the Defendants which expired in 1866. The Plaintiff brought a suit in 1874 for possession and it was dismissed finally in 1876. The claim of the

Defendant to remain in possession under another tenure being recognized, a suit was instituted by the Plaintiff in 1876 for arrears of rent for the

years 1866 to 1872. To get over the plea of limitation, the Plaintiff relied on the decision in Surnomoyee''s Case (1868) 12 M.I.A. 244 and relied

upon the pendency of the suit as preventing limitation from running. Referring to the decision in Surnomoyee''s Case (1868) 12 M.I.A. 244 their

Lordships say:

The effect of that case may be very briefly stated. The zamindar brought a certain patni taluk to sale, and sold it to a purchaser who was put in

possession of it, and out of the purchase money the arrears of rent were paid. Subsequently this sale was set aside for irregularity ; the zamindar

had to refund the purchase money received by her, and the patnidar, who succeeded in setting it aside, obtained also the mesne profits for the time

during which he was ousted. Under those circumstances this Committee, whose judgment was delivered by Sir James Colvile, observe: ""It is clear,

that until the sale had been finally set aside, she""--that is, the Plaintiff--""was in the position of a person whose claim had been satisfied, and that her

suit might have been successfully met by a plea to that effect."" In other words, the effect of the judgment of this Board is, that under the peculiar

circumstances, the patnidar having recovered possession, together with mesne profits, it was equitable that he should pay the amount of rent which

was in arrear ; but that amount of rent did not accrue until the sale of the patni had been set aside, and there, fore, until that time, the Statue could

not run.

This examination of that case shows it altogether to differ from the present.

Their Lordships of the Judicial Committee then make a distinct observation:

Here there was no period of time in which the rent could not have been recovered.

Learned Counsel for the Appellant contends that the principles of this decision would apply to the facts of this case and that with the order of

the Government in his favour, the right of suit came to an end. He got a fresh right of suit when the order of the Government was set aside.

In Muthuveerappa Chetty v. Adaikappa Chetty ILR (1920) Mad. 845, 848, a debtor who satisfied, by payment, his creditor''s claim for

balance of money due, sued to annul the satisfaction on the ground of coercion and obtained a decree for refund. The question then was whether

the annulment gave the creditor a fresh cause of action upon the original claim and time began to run from the date of annulment. After referring to

the two Privy Council cases Mussamat Ranee Surno Moyee v. Shosee Mokhee Burmona (1868) 12 M.I.A. 244 and Huro Pershad Roy v. Gopal

Das Dutt ILR (1882) Cal. 255, 259 (P.C.) which have been the subject of much debate in later case and setting out a passage from the decision in

Huro Pershad Roy v. Gopal Das Dutt ILR (1882) cal. 255, 259 (P.C.) it is observed:

...it is equitable that the Plaintiff should be allowed to prefer a fresh claim seeing that he hat been deprived of the satisfaction which he had originally

obtained. The fact that satisfaction was obtained by coercion was good reason for ordering the money to be refunded but is no reason for

depriving the Plaintiff of all remedy on his original claim. In the case cited the Privy Council say that a fresh claim for the arrears of rent accrued

when the patni sale was set aside, and that until the patni sale had been set aside, the statute could not run. That, in my opinion, amounts to saying

that a fresh cause of action arose. Both in that case and in this, the statute ran as against the original claim. But when the original claim was satisfied

there was an end of the statute running in respect of that cause of action, and on the annulment of that satisfaction a fresh cause of action arose and

the statute began to run again.

The point to be noted is that the learned Judges do not say that there is a suspension of the original cause of action or that the running of time

has been arrested. They do say that the statute ran as against the original claim. All they point out is, that on the annulment of the satisfaction a

separate cause of action arose and the statute began to run again.

Learned Counsel appearing for the Appellant relies on this principle and submits that he is not seeking to add a further ground of exemption

outside the Limitation Act but is only contending that his right to institute the present suit arose only when the Government order was set aside. He

does not state that the running of time has been arrested by the intermediate proceedings. The order of the Government had extinguished his right

of suit.

In Muthu Korakkai Chetty v. Madar Ammal ILR (1919) Mad. 185 (F.B.) at page 202 Oldfield J., observes:

It is unnecessary to extract the sections of the Act or to insist on their unrestricted character except by pointing out, what will be material in the

sequel, that Section 3 is affected by Section 14 in the case of an application, only when the Applicant has been prosecuting, not when, as in the

case under reference, ho has been on his defence in another proceeding. That is involved by the reference in Section 14 to prosecution in good

faith, by the terms of explanation II and by the absence of any reason for supposing that a change in the law was intended when the clear language

in the corresponding section of the former Act XV of 1877 was abandoned. Subject however to this, Sections 3 and 9 are comprehensive. In

order to evade them, reliance has been placed on decisions of Judicial Committee, the effect of which was stated in the recent judgment in

Somasundaram Pillai v. Vannilinga Pillai (C.M.A. No. 355 of 1915--unreported) to which Seshagiri Ayyar, J., was a party as being that:

if circumstances exist, which would render a suit or application anfractuous, a party should not be compelled to institute it, until the impediment in

the way is removed.

It is for us to decide whether this general principle can be deduced from the cases relied on.

Those cases have been referred to in my order of reference as falling into three classes ; and I adhere to that classification in supporting the

conclusion, which the fuller arguments we have now heard in my opinion entails, that the proceedings in each case were fully regarded as in time,

with reference not to any extension of the period available for taking them but to the adoption of a starting point for limitation, which was

discovered, either where none had been available before or in suppression of one already in existence. This is, if I understand the opinion to be

given by Seshagiri Ayyar J., correctly, in accordance with the view which he would take, although I should respectfully describe it as putting a

more accurate, not a more liberal, construction on column 3 of the schedule.

In the order of reference at page 188, Oldfield J., has classified these cases thus:

They in fact, as I understand the points actually decided in them, fall into three classes-those firstly in which the Plaintiff was allowed the time

occupied in seeking one remedy, usually specific performance of an agreement, before he sought another, for instance damages to which ho

ultimately discovered his right; those next and Baijnath Saghai v. Ramgut Singh ILR (1896) Cal. 775 (P.C.), is one of them in which his right to sue

was suspended whilst ho had, or in good faith believed that he had secured, what ho claimed ; and lastly those, if the decision in Jogesh Chunder

Dutt. v. Kali Chum Dutt ILR (1877) Cal. 30 (F.B.) is correct, in which an outstanding adjudication could have boon pleaded against his claim.

Seshagiri Ayyar J., after referring to the decision in the Privy Council observes at pages 212-213:

Here, there was a confirmation of sale. But the CPC has provided the procedure for that confirmation being challenged ; it was in fact challenged ;

and although one might think that the challenge came after the time allowed by law, it was allowed to be agitated; the Court upheld the challenge to

some extent. The third column of Article 180 ignores these considerations and insists upon a party, if it is literally interpreted, filing a petition for

delivery which, owing to the pendency of the petition challenging the confirmation, could not be granted. If this case wore before the Judicial

Committee, I make bold to say that they would hold that the cause of action really arose only when there was a final decision on the challenge.

Similar explanation can be given with regard to every one of the cases which are catalogued under the first head. None of them contravenes the

provisions of the Limitation Act as embodied in Sections 4 to 31. All of them may be said to go to some extent, behind the actual words of the

third column and to import into the decisions considerations based on the intention of the legislature ; but none of them introduces a principle which

adds to or substrate from the statutory exemptions. That is my view of the decisions of the Judicial Committee.

Then comes the following observation of Seshagiri Ayyar J., which has been approved by the Supreme Court in Sita Ram Goel Vs. The

Municipal Board, Kanpur and Others, :

Therefore in my opinion, the true rule deducible from these various decisions of the Judicial Committee is this : that subject to the exemptions,

exclusions, mode of computation and the excusing of delay, etc., which are provided in the Limitation Act, the language of the third column of the

first schedule should be so 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.

This is a rule of construction and not a rule of law. There is a full discussion of the cases of the Judicial Committee in the decision of a Special

Bench of the Calcutta High Court in Midnapore Zemindary v. St. of W.B. (1960) 64 C.W.N. 1081. in answering the reference to the Special

Bench with regard to the first question with which alone we are now concerned which runs thus:

Whether apart from Statute, there may be suspension of limitation or extension of prescribed periods of limitation ?

the answer was:

Yes, subject to the clarification that cases of satisfaction or cancellation of the cause of action may, in appropriate instances be dealt with as cases

of new or fresh causes of action falling under particular Articles of the Indian Limitation Act rendering unnecessary application of the theory of

suspension of limitation.

At page 1084 therein it is observed as follows:

For a suit, there must be a cause of action. In other words, there cannot be a suit unless there is a cause of action for the same. This cause of

action, again, postulates or pro-supposes a right to sue, upon which it must be founded, and it arises upon a breach or threatened breach of some

legal right, which is the occasion for the particular suit. Limitation must be in respect of the suit. Under the Statute or the law of limitation, it is the

suit which is barred. Whore therefore, there is no cause of action, on which the suit can rest or upon which it can be brought, no question of

limitation arises and time would not and cannot ran, or, in other words, the law of limitation, for its application, postulates a suit, that is to say, a

cause of action, other wise subsisting. If this fundamental concept somewhat of the nature of an axiomatic truth,--be borne in mind, which as we

shall see hereinafter, underlies the three decisions of the Judicial Committee, first referred to above, and also the explanation of Surnomoyee''s case

(1868) 12 M.L.A. 244 given in Huro Pershad Roy Chowdry v. Gopal Das Dutt. and Ors. ILR (1882) Cal. 255 (P.C.) in stating and applying the

law of limitation, there will be no difficulty in solving the problem before us, without offending either the Statute (the Indian Limitation Act) or any

recognized rule or canon of construction or any of the authorities or authoritative pronouncements on the subject. It will also aid the construction of

the statute itself and, in particular, Sections 3 and 9 thereof, which have apparently, created some difficulty.

At page 1086 it is observed as follows:

It is to be noted, further, that satisfaction or cancellation of a cause of action may well mean extinction of the particular cause of action and

consequent extinction of the relative right to sue that is, extinction of the right to sue too, although only temporarily and in such circumstances

revival of the right to sue on the annulment of such satisfaction or cancellation may well give rise to a fresh or new cause of action and a fresh or

new start of limitation, if accrual of the cause of action is the starting point of limitation under the relevant Article of the Indian Limitation Act, or, if

the relative column (3) of the relevant Article of that statute, is, as a matter of construction, referable to the accrual of the particular cause of action.

Such instances then will not, strictly, be cases of suspension of limitation.

On the principle of the above decision as admittedly the article of limitation applicable to the suit in question is Article 120 and the third column

provides for the computation of time only from when the right to sue accrued it could well be held that the right to institute the present suit accrued

when the order of the Government was set aside on the writ petition.

Learned Counsel appearing for the second Respondent referred to the decision in Hussain Batcha Sahib Vs. The Secretary of State for India

in Council and Another, That case cannot help the Respondent as the following portion of the judgment would distinguish the present case:

It is argued that oven if Article 120 applies, the Plaintiff has six years from the final refusal to recognize his rights. That argument is not tenable, for

Article 120 gives a period of six years from the date when the right to sue accrues and certainly in the present case the right of the Plaintiff to sue

accrued when the Government recognized Defendant 2 as the holder of the office entitled to receive the emoluments and not when the Plaintiff''s

final appeal to the Board of Revenue was rejected.

It will be noticed that there was no extinction of the right of suit in that case by the recognition of the right of the Plaintiff therein by the

Government during any period. Equally the decision in Ahbar Khan v. Turaban ILR (1908) All. 9 relied upon by the Respondent is distinguishable.

The head-note therein tons as follows:

The Plaintiff sued in 1904 asking for a declaration that they were entitled to certain property mentioned in the plaint. Their cause of action was that

the name of the Defendant had in the year 1895 been entered in the revenue papers in respect of the property in suit. Held: that the suit was barred

by limitation, and that the fact that the Defendant had in 1903 resisted the Plaintiffs in an attempt to obtain correction of the khewat did not give the

Plaintiffs a fresh cause of action.

At page 10 it is observed as follows:

The refusal to have the entry corrected was a continuation of the original cause of action namely, the entry of the Defendant''s name in the revenue

papers in 1895.

The Plaintiff in that case had never succeeded at any intervening period of time for the suspension of the original cause of action. In my view, in

the light of the foregoing discussion, the present suit is not barred by limitation. The cause of action might be the original order of the Collector but

the right to institute the present suit accrued only when the order of Government restoring him to office was sot aside.

To take for consideration now the validity of the order of the Collector on the merits, it is needless in my view to consider whether with

reference to the instructions issued by the Collector in 1944 also the principle of the decision in Nagarathnammal v. Ibrahim Saheb ILR (1955)

Mad. 460 (F.B.), will apply. In my view the instructions of the Collector in question were tentative and to meet a particular contingency ; it was an

administrative direction not flowing from any statutory or rule-making power entitling a party affected to compel its application. I agree with the

Courts below that even assuming that the instructions issued by the Collector in 1944 had to be applied, there has been compliance with the

directions contained therein. A perusal of the order of the Revenue Divisional Officer shows that the enquiry had commenced even in August 1948

and the Tahsildar and the Revenue Inspector had made enquiries and submitted the papers to the Revenue Divisional Officer. Before framing the

charges, the Revenue Divisional Officer himself had visited the village to verify the allegation of non-residence. This is not a case where the village

headman bona fide required time to take up residence in the village. The case of the village headman was that after the framing of the charges, he

was permanently residing in the village. When a surprise visit way made, the village headman persisted in his case that he had his residence in the

village. The Courts below have as a fact found that it was a case where the Revenue Divisional Officer made surprise inspection to verify the claim

of the Petitioner that he had taken a bona fide permanent residence and found it to be false. I do not think there is any substance in the contention

of the Plaintiff that there has been no proper enquiry in the matter in accordance with the rules then current:

The next point for consideration is whether the order of removal of the Plaintiff from the office of the village headman is invalid for the reason that

he had not been given a reasonable opportunity to show cause against the action proposed to be taken against him before he was removed from

service. This point in this form was not taken in the trial Court. All that is stated is that the Plaintiff had a right to vindicate his fundamental right to

be restored to office as the Collector of Thanjavur had failed to observe the fundamental and elementary rule observed in similar instances. The

reference obviously in the context in which the sentence appears is to the Collector''s instruction of 1944 in relation to non-resident village officers.

But in the lower appellate Court the Plaintiff who apparently has taken grounds relating to this point was permitted to argue this aspect of the

question. Even here in second appeal the grounds are not specific, the relative ground being:

The view of the lower Court that Articles 310 and 311 of the Constitution would not apply to this case merely because the impugned order was

originally pasted in 1949, is erroneous.

But the reference in the ground to The High Commissioner for India v. I.M. Lall (1948) F.C.R. 44 (P.C.), observing that the lower appellate

Court has erred in thinking that the requirement laid down in that case was complied with, makes it clear that the Plaintiff was relying upon Section

240 of the Government of India Act, 1935, which contained provisions corresponding to the present Article 311 of the Constitution. The learned

District Judge has considered this requirement of Section 240 of the Government of India Act as a technical formality and would hold that the

order of the Revenue Divisional Officer exhibit A-1 showed that the formality had been complied with duly. A perusal of exhibit A-1, the order of

the Revenue Divisional Officer, shows that it proceeds in clear violation of the requirement of Section 240 Sub-section (3) of the Government of

India Act, 1935. The present second Respondent had sent a petition making certain allegations of occupation and non-residence in village, etc.,

against the village headman. An enquiry was held before the framing of the charge. The Plaintiff had notice of it and he was given an opportunity to

cross-examine all the witnesses at the stage. He filed a written statement and also examined witnesses. The Revenue Divisional Officer visited the

village in question without previous notice to verify the allegation of non-residence. After holding the above enquiry he framed charges against the

Plaintiff and he was directed to show cause why he should not be dismissed from service. Five charges were framed. The Plaintiff filed his written

answer to all the charges and stated that none of the witnesses need be examined again and that he had no additional witness on his behalf. After

these charges, the Revenue Divisional Officer who held the enquiry went into the truth of the charges charge by charge. He found that three of the

charges were proved and two of them not proved. It follows from the above that the original enquiry was a preliminary enquiry to find out if a

prima facie case was there to frame charges against the village headman. After the prima facie case was found, charges were framed and notice

was issued to the Plaintiff. But by the same order in which the findings as to the charges were given the punishment was imposed. The relevant

paragraph of the order of the Revenue Divisional Officer is as follows:

Charges Nos. 1, 2 and 5 are proved. They are of a very serious nature the village headman is very unpopular in the village. In fact it is learnt of late

that he is afraid of going and remaining in the village even for a day. His non-residence alone is sufficient to remove him from service. But charge

Nos. 1 and 2 call for dismissal from service. I therefore dismiss him from service.

A reasonable opportunity to show cause against an action proposed to be taken comes in only after a definite finding had been arrived at on

the charges. As observed by their Lordships of the Judicial Committee in the High. Commissioner for India v. I.M. Lall (1948) F.C.R. 44 64

(P.C.).

...no action is proposed within the meaning of the Sub-section (3) [Section 240 of the Government of India Act (1935)] until a definite conclusion

has been come to on the charges, and the actual punishment to follow is provisionally determined on. Before that stage, the charges are unproved

and the suggested punishments are merely hypothetical. It is on that stage being reached that the Statute gives the civil servant the opportunity for

which Sub-section (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably

afforded at more than one stage.

If Section 240 of the Government of India Act, 1935 applies to this case, it is apparent from a reading of the order in question that the Plaintiff

though entitled to have a further opportunity given to him to show cause why the particular punishment should not be inflicted on him was not given

that opportunity. Therefore, on the order as it stands there is no getting away from the fact that there has been no compliance of the provision of

Sub-section (3) of Section 240 of the Government of India Act, 1935. When the matter was taken up in appeal before the Collector, the Collector

rejected the other two charges also and found only the charge of non-residence made out. He modified the punishment of dismissal to one of

removal from service.

Sub-section (3) of Section 240 of the Government of India Act reads:

No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the

action proposed to be taken in regard to him.

In the corresponding provision of the Constitution in Article 311, Clause 2 Removal is included specifically. It was not contended before me

that Section 240 will not apply to this case for the reason that the punishment ultimately imposed was only one of removal, as it has been held in a

number of cases that though the Government of India Act used, only the word dismissed removal by way of penalty was also covered by the word

dismissed. Vide Khem Chand Vs. The Union of India (UOI )and Others, and The High Commissioner for India v. I.M. Lall (1948) F.C.R. 44 64

(P.C.).

It is contended on behalf of the Respondents that this point not having been taken in the trial Court no arguments were addressed there and

that the appellate Court has also observed in dealing with this point that there was no definite data before the Court to show that the formality was

not really complied with. But the ground was taken in the lower appellate Court, and the lower appellate Court has permitted arguments to be

advanced on the question apparently without any objection. It is a constitutional protection which the Plaintiff was entitled to and a bare perusal of

the impugned order shows that there has been no due compliance with the formalities. But all the same the question being a mixed question of fact

and law and the inference whether a second opportunity had been given being one to be drawn by a reference to the proceedings, it may not be

fair to confine the decision to the evidence on record (though I do not see what further evidence any of the parties can adduce in the matter).

The dispute has been pending for years. It must be remarked that the Government had taken the stand in the earlier writ petition that substantial

justice was done by the Government order and even here learned Counsel appearing for the Government very fairly preferred to take a neutral

attitude though as set out in the beginning at my instance he also addressed arguments on the several legal issues raised. I find that even in the lower

appellate Court the State of Madras had not figured as a contesting Respondent. I think it would be sufficient in the circumstances if a finding is

called for from the lower appellate Court on the question whether the removal of the Plaintiff from service is vitiated as not having been in

conformity with the provisions of Section 240 of the Government of India Act, 1935. The matter is therefore remitted to the District Judge for a

finding on the following question:

Whether the Plaintiff was given an opportunity to show cause against the disciplinary action proposed to be taken against him after an enquiry had

been made into the charges and the charges for which action was proposed to be taken had been found true and the punishment to follow

provisionally determined on ?

The parties are at liberty to adduce any evidence they may have on the question.

Time for submission of the finding eight weeks from the receipt of the records by the lower Court.

Objections : Within ten days thereafter.