JUDGMENT Sulaiman, C.J.
1. This is a defendant's appeal arising out of a suit brought by the District Board of Banda against the defendant who was at one time a member of the Board. In the plaint it was alleged that the defendant was a member of the Board from 1923 to 1925, and lime was required for use by the Board:
Consequently an advance of Rs. 6,750 was given to the defendant for preparation of lime under the control and supervision of the defendant. The defendant was to supply the lime so prepared and render an, account of the advance.
2. The Board went on to allege that he did not supply the full quantity of lime, and that he submitted an account which was wrong. It accordingly claimed the balance. It alleged that the cause of action accrued on or about the end of October 1925 when the defendant stopped supplying lime and also-on subsequent dates when he refused to render accounts. The suit was filed, on 26th October 1928. The defendant in his written statement pleaded that the suit was bad because no previous sanction of the Commissioner had been obtained, and also pleaded that the claim was barred by time. There were other pleas also with which we are not concerned. Interrogatories were served by the defendant on the Chairman of the District Board and the very first question asked was whether the amount had been advanced to the defendant in his capacity as a member of the Board or as an outsider. The answer given was that the amount was given to Mm for preparation of lime as an advance in: his capacity as a member of the District Board. The learned Munsif began his finding by stating that it is admitted by the plaintiff that the defendant was given the advance in his capacity as a member of the Board. He again referred to this in his finding on the next issue and remarked that the defendant was given the advance to get prepared lime and supply it in his official capacity as a member of the Board. He held that the sanction of the Commissioner was necessary under Section 33 of the Act, and in the absence: of such sanction the suit must fail. He further held that the claim was. barred by the rules of limitation laid down in Section 192, Sub-section 3, District Boards Act.
3. In the grounds of appeal before the lower appellate the plaintiff did not challenge the remark that it had been admitted by the plaintiff that the advance had been given to the defendant in his official capacity as a member of the Board. The lower appellate Court also does not in its judgment say that the advance given to the defendant had not been given to him in his official capacity as a member of the Board. It seems to have been conceded that the money had been given, to him in that capacity. The Board filed an application before the lower appellate Court supported by an affidavit stating that, as matter of fact, the sanction of the Commissioner had been previously obtained, but it had been accidentally put on a wrong file, and could not be found at the time. It explained that both the present Chairman and the Secretary were not holding the offices at the time when the sanction was obtained. The lower appellate Court accepted this explanation and considered that there was sufficient. ground for admitting fresh evidence and also held that the papers filed by the Board showed that previous sanction had been obtained. The learned Judge came to the conclusion that there was no defect. He further held that Section 192, Sub-section 3, did not apply to the case, because the plaintiff was the District Board itself and not a stranger. He overruled the finding of the first Court and remanded the case for disposal of the remaining issues.
4. In appeal it is first contended that the lower appellate Court should not have admitted fresh evidence. We think that when the. learned Judge accepted the allegations contained in the affidavit and was satisfied that there was good cause for not discovering these papers at an earlier stage, he was perfectly justified in admitting sham as fresh evidence. There is no doubt that these papers conclusively show that the sane-ion had been obtained. We however think that the learned Judge has gone utterly wrong in his interpretation of Section 192. He seems to be under the impression that that section would not apply if the District Board itself is a plaintiff. He thinks that the section is intended to be applicable where anyone other than the Board is a plaintiff. There seems to- be no justification whatsoever for such a construction. The opening portion of the section runs as follows:
No suit shall be instituted against a...member...of a Board in respect of an act done for purporting to have been done in...his official capacity until the expiration of two months next alter notice etc.
5. The section is obviously intended for the protection not only of the Board and its officers and servants, but also of the members of the Board, so long as the defendant was a member of the Board and the suit is instituted in respect of an act clone or purporting to have been done by him in his official capacity, the section would be applicable, no matter whether the plaintiff is a stranger or the Board or any other officer or servant. The protection is for a defendant and does not take into account the status of the plaintiff in suit. We are therefore clearly of opinion that the view taken by the lower appellate Court is wrong and cannot be supported. The learned advocate for' the Board felt compelled to fall back upon the contention that the act in question was not one done in his official capacity. It 'this question were open to the Board to be raised in a third Court, we would have been inclined to ask for a finding on this point. But as remarked above, the position taken up by the plaintiff Board was that the advance had been given to the defendant in his official capacity as la member of the Board. The point was conceded in the answer to the interrogatories by the Chairman, was admitted before the trial Court and the admission was not withdrawn before the lower appellate Court. In these circumstances, we do not think that we should allow the Board to raise this point at this last stage, because it is at the least a mixed question of law and fact. We must therefore assume that the act complained of was done by the defendant in his official capacity. This being the case, Section 192, Sub-section 3, applies, and the suit having been instituted more than six months after the accrual of the cause of action, is barred by time.
6. We may add that even if Section 192 did not apply, we would not have been able to accept the finding of the lower appellate Court that the suit is not barred by the three years' rule without a clear finding as to the date on which the accounts stated in writing signed by the defendant were submitted. (Article 64, Dim. Act.) We should also like to point out that the action of the Board in giving such a contract to the defendant, while he was a member of the Board, appears to have been highly objectionable, was contrary to the express provisions of Section 34, District Boards Act, and was also contrary to the principle now embodied in Section 31(c) of the rules contained in the District Board Manual. We accordingly allow this appeal, set aside the order of the lower appellate Court and restore the order of the first Court with costs in all Courts.