JUDGMENT
1. Admit. Mr. G. N. Desai waives service of notice. In the facts of the case and with the consent of parties, the matter is ordered to be heard finally today.
2. The appellants-plaintiffs challenge the legality and validity of notice dated December 22, 1982 issued by respondent Municipal Corporation under S. 260 of the Bombay Provincial Municipal Corporation Act, 1949. Admittedly the suit is filed some time in April, 1998. At the time when the plaintiffs filed suit they also took out notice of motion praying for injunction restraining the Municipal Corporation from enforcing the impugned notice. The learned City Civil Court Judge passed a cryptic order as follows:
“It appears that the suit is filed after the period of limitation and hence it is not desirable to grant injunction in this matter. Hence order. The application dismissed. Interim relief granted on N. M. vacated. No order as to cost. N. M. is disposed of.”
It is not understood how the learned Judge came to the conclusion that the suit is time barred. True, the impugned notice is dated 22-12-1982. But it is pursuant to this very notice that the defendant-Municipal Corporation is trying to take action. In fact it cannot be the case of the defend ant-Municipal Corporation that the notice has become infructuous within the period of six months from the date of issuance thereof. If that be so, suit of the plaintiff may have to be allowed on the ground that no action can be taken on the basis of notice which has lost its efficacy after six months from the date of its issuance. In the facts of the case prima facie it has got to be held that so long as the notice is sought to be implemented and action pursuant to the notice is sought to be taken, there is continuous cause of action. As long as the stand of the Municipal Corporation is that the notice remains in operation the plaintiffs or any person aggrieved by such notice will have a cause of action to challenge the same. Therefore, S. 487(l)(b) of the Act, even if attracted, will have to be construed in the manner that the suit filed at the time when the impugned notice is in operation (or it is claimed to be in operation) will be within the period of limitation. The relevant part of S. 487 reads as follows:
“487. (1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal officer or servant in respect of any act done or purported to be 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) ………………………………
(b) unless it is commenced within six months next after the accrual of the cause of action.”
A close reading of this section clearly shows that as long as the cause of action continues the period of limitation would not start to run. As indicated hereinabove, it is not even the case of the Municipal Corporation that the notice has ceased to be in operation. It is in fact pursuant to this very notice that the threatened action of demolition of certain part of the construction is sought to be taken. Therefore, prima facie it can never be said that the suit is beyond the period of limitation unless of course, defendant Municipal Corporation comes out with such a defence which ultimately in all probability will help the plaintiffs. At least, at this stage such is not the case.
3. In the result the appeal is allowed. The order passed by the trial court below the notice of motion is reversed and set aside. The trial court is directed to decide the notice of motion on merits. It is clarified that the aforesaid reasons and conclusion are at the interlocutory stage only. Appeal from order is allowed accordingly and is made on the basis of material which is available to the Court at this stage. No order as to costs.
4. Appeal allowed.