AMAR CHAND INANI versus UNION OF INDIA

AMAR CHAND !NANI

UNION OF INDIA October 13, 1972

[A. N· GROVER, K. K. MATHEW AND A. K. MuKHERJEA, JJ.]

'Indian Limitation A.ct, 1908-S. 4, 14, 15 (a} read wit/1 S. 80 of t/Je •Civil Procedure Code-Whether the Notice period to the Railways is to be excluded for the purpose of limitation.

. Art. 221 Iindian Limitation Act, 1908, provides period of one year for suit rot compensation for injw·y to the person from the date wh,en the injury was sust~d. In the present ca,e, the injury was sustainod by the Appellant on January 1, 1958, while travelling by train from Ambala Cant!. to Delhi and the suit should have been filed on January 1, 1959; b!lt as the Appellant bad to serve notice under S.80 of the C.P .C. before filing tlr. suit, the notiqo was served on th~ Oeneral Manager on December 29, 1958. The suit was originally ~ .''l Kamal Court on March 2, 195.9 as March 1, 1959 was holiday. Later, the suit wa• transferred to the Sub-Judge's ·eourt at Panipat which by its ()Ider returned the plaiitrt for presentation to tlx:. proper Court, as the Mohri Railway Station wh,ere the injury was sustained, was outside the jurisdiction of that Court. The plaint was, ultimately, filed before Sub-.Judge's Court at Ambala.

from of the Oeneral .''l Kamal by its the

The trial Court dismissed the suit on the ground of limitation and ·the High Court also confirmed the decision. Before this Court, Counsel for the appellant raised th,e following points :-(!) The suit·· could not have been U.Stituted without givi.i>g 2 months' notice U/S 80 of C.P.C and if this period of 2 months is excluded for the purpose of limitati;;;?, the 111if was within time. (2) that it the Karna! Court WlS not the proper Court in which the suit ·should. have been filed, the appellant was entitled to the benefit of S.4 of the Llmitation Act: (3) that the Kuna! Court had jurisdiction to entertain the plaint a:nd therefore, that was t!ie proper Court for the purpose of S. 4 of the Act; ( 4) that under S. 14 of ·the Act, the Appellant was to get the benefit of excluding the period during which he was prosecuting the suit at Karn•! and Panipat.

Dismissing the appeal,

HELD : (i) S.80 of the C.P .C. pr<wides, among othtt things, that ·no suit shall be "instituted agai:r>st the Railways until the expiration of two months after nvtice in writing has been delivered. S.80 only prescribes condition precedent for the inctitution of the rnit and has nothing to do with. the poriod of limitation for suit. The appellant ca.ooot wtit till the 29th of Demember 1958 as the period of limitation was to expire M January I, 1959. [687B]

(ii) Section 4 of the Limitation Act provides that where the period of limitation prescribed for any suit expires on day wren the Court is closed, the suit may be instituted on the reopening day. In the present C11Se, if the Kamal Court was ir1ot the proper Court, the plaintiff would not be entitled to the benefit of S.4. He can get the benefit of S.4 only if the suit were filed in the proper Court. [687E] ·

Maqbul Ahmed and Others v. Prctap Narain Singh artd Others, 62 I.A. 80, referred to.

(iii) The appellant cannot get the benefit of s. 14 of the Limita-tion Act because even if the appellant was entitled to get an exclusion of the time during which he was pro.,cuting the suit in the Kernal •nd Panipat Court, the suit would rwt be in time as the fil'ing of the suit in the Kamal Court wz.i beyond the period of limitation. [688B-C]

(iv) Further, the appellant's contention that the fili'llg of the suit at the proper Court at Ambala was continuation of the suit filed at Karna! and Panipat, has no force, because when the plaint was returned for presentafion to the proper Court and was prosented iJll that Court, the suit can be deemed to be in•tituted in the proper Court. only when the plaint was presented in that Court. The suit instituted at the prop:r Court at Arnbala was not continuation of the suit filed in the Karl!lal Court. [688ElHirachand Succaram Gandhy & Co. v. G.l.P. Ry. Co. A.I.R. 1928 Bombay 421; Bimla Prasad Muker;i v .. Laksh11"i Devi & Ors. A.I.R. 1926 Calcutta 355 and Ram Kishun v. Ashirbad, I.L.R. 29 Patna, 1199, referred to.

(v) Wheth<or Kamal Court was the proper Court and had jurisdic-to en"'rtain the plaint or not in the facts and circumstances of the case the appellant had never raised these contentions before the trial Court or in the High· Court. Therefore, he canuot be allowed to raise the1e points for the first time before this Court. [690A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1270 of 1969.

Appeal by special leave from the judgment and decree dated November 21, 1968 of the Punjab & Haryana High Court at Chandigarh in Regula1 First Appeal No. 372 of 1961.

Bishen Narain and B. P. Maheshwari, fer Ille appellant.

Gobind Das and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

MATHEW, J. This appeal, by special leave, is from the judg-F ment of the High Court of Punjab and Haryana dismissing the appeal filed by the plaintiff against the decree dismissing his suit for recovery of damages to the tune of Rs. 1 lakh.

The plaintiff is an advocate practising at the Ajmer bar. On the !light between December 31, 1957 and January 1, 1958, the plaintiff was travelling by 2 Dn. Passenger train from Ambala Cantt. to Delhi. While the train was at Mohri Railway Station, the J anatha Express train coming from Delhi collided with. it and as result the plaintiff sustained serious injuries -0n his head and in the spine. The plaintiff filec! the suit claiming damages under several heads. The trial Court found that the claim for damages was well founded to the extent of Rs. 33,503.00, but dismissed the suit on the ground that it was barred by iimitation. The High Court, on ap{leai by the plaintiff, confirmed the finding of the trial Court that the suit was barred by limitation and dismissed the appeal.

The main question, in this appeal, is whether the suit was filed within the period of limitation.

There is no dispute that the Article applicable to the suit is Art. 22 of the Indian Limitation Aot, 1908, hereinafter called the 'Act', which provided period of one year for suit for com-pensation for injury to the person from the date when the injury was committed. The injury here was committed on January l, 1958, and therefore, the suit should have been filed on January l, 1959. But the plaintiff had to issue notice under s. 80 o~ the Civil Procedure Code before filing the suit. The plaintiff issued the notice and it was served on the General Manager of the Rail-way in question on December 29, 1958. The suit was filed in the Court of the Senior Subordinate Judge of Kamal, hereinafter called the 'Karna! Court', on March 2, 1959, as March 1, 1959, was day on which the Court was not open. For ministerial purposes, the suit was subsequently transferred to the Court of the Subord.inate Judge, Panipat, hereinafter referred to as the 'Panipat Court', which by its order dated October 28, 1959, re-turned the plaint for presentation to the proper court. That was on the basis of its finding that Mohri Railway Station, where the injury was committed, was not situate within territory juris-diction of the Court. The plaint was thereafter presented in the Court of the Senior Subordinate Judge, Ambala, hereinafter referred to as the 'trial Court', on October 29, 1959, together with an application under s. 14 of the Act. ·

Before the trial Court as well as the High Court, the appel-lant contended that, by virtue of s .. 4 of the Act, the suit filed on March 2, [959, was within time, as March 1, 1959, was day on which the Court was not open and that in any event, the suit was not barred by limitation as the .appellant could not have filed the suit before the expiration Qf two months after the delivery cf the notice under s. 80 of the Civil Procedure Code. Both the Courts overru1ed these contentions.

Counsel for the appellant submitted that the suit could not have been instituted without giving 2 months' notice as required by 8. 80 of the Civil Procedure Code and, if the period of 2 months is calculated from the date of the service of the notice, the suit need have been filed only on March 3, 1959, and there-fore, the suit was filed within time. Under s. 15(2) of the Act, the plaintiff was entitled to exclude the period of notice. That means, the plaintiff could have filed the sµit within one year and 2 months from the date on which the injury W31i committed. But according to counsel, as the plaintiff could not have· filed the suit before the expiry of the period of notice, and that period expired only on March 2, 1959, as there were only 28 days in February,

1952, and so the suit was within time. We find no force in this argument.

Section 80 of the Civil Procedure Code ,provides, among other things, that no suit shall be instituted against the O;ntri1l Government, where it relates to Railway, until the expiration of two months next after notice in writing has been del\vered to or left at the office of the General Manager of the Railway. lt was not open to the plaintiff appellant to wait till the 29th of December, 1958, for delivery of the notice and say that till the expiration of the two months from that date, no suit could be filed and that the suit is, therefore, within the period of limitation tho1Jgh filed after 1 year and 2 months from the date when the injury was committed. Section 80 only prescribes condition precedent for the institution of the suit and has nothing to do with the rieriod of limitation for suit except that under s. 15 ( 2 )' of the Act, the period of notice can be deducted in calculating the period of limitation.

It was contended for the appellant that even if the Kamal Court was not the proper Court in which the suit should have been filed, the plaintiff was entitled to the benefit of s. 4 of the Act. Section 4 of the Act provides that where the period of limi-tation prescribed for any suit expires on day when the Court is closed, the suit may be instituted on the day the Court re-opens. But, if the Kamal Court was not the proper Court in which the suit should have been filed, thr- plaintiff would not be entitled to the benefit of s. 4. The decision of the Privy Council in Maqbul Ahmad and Others v. Pratap Narain Singh and Others(') is an authority for this proposition. In that case the Privy Council said :

". . . . the language of s. 4 is such that it seems to their Lordships to be impossible to apply it to case like the present. What it provides is that, where the period of limitation prescribed expires on day when the Court is closed. the application may be made on the day when the Court reopens. Jn their Lordships' view that means the proper Court in which the applica-G tion ought to have been made .... "

If the plaintiff had filed the suit in the trial Court on March 2, 1959, then, certainly the suit would have been within time under s. 4, as that was the proper Court in which the suit should have been filed. As the Kamal Court had no jurisdiction to entertain the plaint, it was not the prooer Court. The fact that the plaintilf would be entitled to take advantage of the provisions of s. 14 of

the Act would not, in any way, affect the question whether the suit was filed within the time as provided in s. 4 in the Karna) Court. Section 14 of the Act only provided for the exclusion of the time during which the plaintiff has been prosecuting with due dilligence another civil proceeding against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in Court which, from defect of juris-. diction, or other cause of like nature, is unable to entertain it. Even if the plaintiff was entitled to get a:i exclusion of the time during which he was prosecuting the suit in the Kamal and Panipat, the suit would not be within time as the filing of the suit in the Kamal Court was beyond the period of limitation. It was, however, argued by counsel for the appellant that ·the suit insti-tuted in the Trial Court by the presentation of the plaint after it was returned for presentation to the proper Co\lrt was continua-tion ·of the suit filed in the Kamal Court and, therefore, the >Uit filed in Kamal Court must be deemed to have been filed in the trial Court; We think there is no substance in the argument, for. when the plaint was returned for presentation to the proper Court and was presented in that Court, the snit can be deemed to be instituted "in the proper Court only when the plaint was presented in that Court: In other words, the suit instituted in the trial Court by the presentation of the plaint returned by the Panipat Court was not a' continuation of the suit filed in the Kamal Court (see the decisions in Hirachand Succaram Gandhy and others v. G.1.P. Ry. Co.('), Bimla Prasad Mukherji v. Lal Moni Devi and Others('), and Ram Kishun v. Ashirbad('). Therefore, the presentation of the plaint in the Kamal Court on March 2, 1959, cannot be deemed to be presentation of it on that day in the trial Court.

Counsel for the appellant conterided that the Kamal Court had jurisdiction to entertain the plaint presented to it on March 2, 1959, and, therefore, that was the proper Court for the purpose of s. 4 of the Act and that the suit was filed within time. He said that although the order passed by the Panipat Court on October 28, 1959, holding that it had no jurisdiction to entertain the plaint and returning it for presentation to the proper Court, was not l.\ppealed from, the appellant is not precluded from challeng-ing the finding in the order that Mohri Railway Station is not withi11 the jurisdiction of the Kamal Court. On the other hand', counsel for the respondent contended that since an order passed un~er Order 7, rule 10 of the Civil Procedure Code, returning plaint for presentati()n in the proper· Court, was ap.,ealable under

(1) A. I. R. 1928 Born. 421.

(2) A. I. R. 1926 Calcutta 355.

(3) I. L. R. 29 Patna 699.

Order 43, rule 1 (a), the appellant is precluded from ~halle?gi:ig the correctness of the finding of the Court that Mohri Rauway Station was not within its jurisdiction as no appeal was preferred from that Order by the arpellant. Counsel said that as that order has become final, it would constitute res judicata and the appel-lant cannot challenge its correctness in an appeal from the decree . Counsel further said that s. 105 of the Civil Procedure Code which enables party to challenge the correctness of an mtcr-locutory order whether appealable or non-appealable when an appeal is preferred from the decree in the case, has no application for the reason that the order passed by tre Panipat Court can-not be deemed to be an order passed in the wit in which the decree was passed by the trial Court, l:ut final order which terminated the proceedings in the Panipat Co•1rt. To put it in other words, the argument was, that since the suit in tile trial Court was not· continuation of the suit which was filed in the Kamal Court, the order returning the plaint cannot be deemed to be an order passed in the suit as instituted in the trial Court and, therefore, there is no question of challenging that order under s. I 05 of the Civil Procedure Code in an appeal agaimt the decree passed by the trial Court. In support of the contention, counsel referred to the rulings which have already been ·referred to in this judgment holding that suit instituted by the presenta-tion of plaint in pursuance to an order passed under Order 7, rule I 0 of the Civil Procedure Code is not continuation of the suit as instituted in the Court which had no jurisdiction to enter-tain it. The rulings of this Court in Satyadhan Ghosa/ and Others v. S. M. Deorajin Debi and Another(') and Arjun Singh v. Mahindra Kumar and Others(') were also referred to by Counsel to show that the order passed by th,e Panipat Court re- -turning the plaint for presentation to the proper Court was final order and operated as res judicata precluding the appellant from challenging its correctness in this appeal. We do not think it necessary to decide the question whether the order passed by the Panipat Court returning the plaint for presentation in the proper Court would operate as res judicata and pr~clude the appella11t from contending in this appeal that the Karna! Court had jurisdiction to entertain the suit, for the reason that the appel-lant never raised the contention before the trial Court that Kamal Court was the proper Court for instituting the suit on the ground that Mohri Railway Station was within its jurisdiction. On the other hand, by invoking s. 14 of the Act, he impliedly asserted that the Kamal Court had no jurisdiction to entertain the plaint because that section proceeds on the basis that the Court in which the proceeding was pending was unable to entertain the proceeding from defect of jurisdiction, or cause of like nature.

To put it differently. the appellant had no case either in the trial Court, or in the High Court in the appeal from the decree, lhat Kamal Court was the proper Court for filing the suit. No doubt, he invoked the provision of s. 4 of the Act l!lld sought to bring the case within its purview both in the trial Court and in the High Court, but that was on the basis that even if the Kamal Court had no jurisdiction to entertain the plaint, he was entitled to the bell\:-fit of s. 4. In these circumstances, we do not think that the appel-lant should be permitted to urge before this Court that the Kamal Court had jurisdiction to entertain the suit for the reason that Mohri Railway Station was within its jurisdiction and show that the suit as filed on March 2, 1959, was filed in the proper Court for the purpose of s. 4 of the Act.