Full Judgment Text
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PETITIONER:
AMAR CHAND INANI
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT13/10/1972
BENCH:
MATHEW, KUTTYIL KURIEN
BENCH:
MATHEW, KUTTYIL KURIEN
GROVER, A.N.
MUKHERJEA, B.K.
CITATION:
1973 AIR 313 1973 SCR (2) 684
1973 SCC (1) 370
ACT:
"Indian Limitation Act, 1908--S. 4, 14, 15(a) read with S.
80 of the Civil Procedure Code--Whether the Notice period to
the Railways is to be excluded for the purpose of
limitation.
HEADNOTE:
Art. 22, Indian Limitation Act, 1908, provides a period of
one year for a suit for compensation for injury to the
person from the date when the injury was sustained. In the
present case, the injury was sustained by the Appellant on
January 1, 1958, while travelling by train from Ambala
Cantt.. to Delhi and the suit should have been filed on
January 1, 1959; but as the Appellant had to serve a notice
under S.80 of the C.P.C. before filing the suit, the notice
was served on the General Manager on December 29, 1958. The
suit was originally filed in Karnal Court on March 2, 1959
as March 1, 1959 was a holiday. Later, the suit was
transferred to the Sub-Judge’s Court at Panipat which by its
order returned the plaint for presentation to the proper
Court, as the Mohri Railway Station where the injury was
sustained, was outside the jurisdiction of that Court. The
plaint was, ultimately, filed before SubJudge’s Court at
Ambala.
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 the
following points :-(1) The suit could not have been
instituted without giving 2 months’ notice U/S 80 of C.P.C.
and if this period of 2 months is excluded for the purpose
of limitation, ’the suit was within time. (2) that if the
Karnal Court was not the proper Court in which the suit
should have been filed, the appellant was entitled to the
benefit of S.4 of the Limitation Act; (3) that the Karnal
Court had jurisdiction to entertain the plaint and
therefore, that was the 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 Karnal and Panipat.
Dismissing the appeal,
HELD : (i) S.80 of the C.P.C. provides, among other things,
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that no suit shall be instituted against the Railways until
the expiration of two months after notice in writing has
been delivered. S.80 only prescriber, a condition precedent
for the institution of the suit and has nothing to do with
the period of limitation for a suit. The appellant cannot
wait till the 29th of December 1958 as the period of
limitation was to expire on January 1, 1959. [687B]
(ii)Section 4 of the Limitation Act provides that where the
period of limitation prescribed for any suit expires on a
day when the Court is closed, the suit may be instituted on
the reopening day. In the present case, if the Karnal Court
was not 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. Pratap Narain Singh and Others,
62 I.A. 80, referred to.
685
(iii)The appellant cannot get the benefit of s. 14 of
the Limitation Act because even if the appellant was
entitled to get an exclusion of the time during which he was
prosecuting the suit in the Kemal and Panipat Court, the
suit would not be in time as the filing of the suit in the
Karnal Court was beyond the period of limitation. [688B-C]
(iv)Further, the appellant’s contention that the filing of
the suit at the proper Court at Ambala was a continuation of
the suit filed at Karnal and Panipat, has no force, because
when the plaint was returned for presentation to the proper
Court and was presented in that Court, the suit can be
deemed to be instituted in the proper Court only when the
plaint was presented in that Court. The suit instituted at
the proper Court at Ambala was not a continuation of the
suit filed in the Karnal Court. [688E]
Hirachand Succaram Gandhy & Co. v. G.I.P. Ry. Co. A.I.R,
1928 Bombay 421; Bimla Prasad Mukerji v., Lakshmi Devi &
Ors. A.I.R. 1926 Calcutta 355 and Ram Kishun v. Ashirbad,
I.L.R. 29 Patna, 699, referred to.
(v)Whether Karnal Court was the proper Court and had
jurisdiction entertain 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, be cannot be allowed to raise these
points for the first time before this Court. [690A]
JUDGMENT:
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 RegulaR First Appeal No. 372 of 1961.
Bishen Narain and B. P. Maheshwari, for the 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-
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 practicing at the Ajmer bar.
On the night 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 Janatha Express train coming from Delhi
collided with it and as a result the plaintiff sustained
serious injuries on his head and in the spine. The
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plaintiff filed 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 limitation.
The High Court, on appeal by the plaintiff, confirmed the
finding of the trial Court that the suit was barred by
limitation and dismissed the appeal.
686
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 Act, 1908, hereinafter
called the ’Act’, which provided a period of one year for a
suit for compensation for injury to the person from the date
when the injury was committed. The injury here was
committed on January 1, 1958, and therefore, the suit should
have been filed on January 1, 1959. But the plaintiff had
to issue a notice under s. 80 of the Civil Procedure Code
before filing the suit. The plaintiff issued the notice and
it was served on the General Manager of the Railway in
question on December 29, 1958. The suit was filed in the
Court of the Senior Subordinate Judge of Karnal, hereinafter
called the ’Karnal Court, on March 2, 1959, as March 1,
1959, was a day on which the Court was not open. For
ministerial purposes, the suit was subsequently transferred
to.the Court of the Subordinate Judge, Panipat, hereinafter
referred to as the ’Panipat Court’, which by its order dated
October 28, 1959, returned 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 jurisdiction 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, 1959, was within time, as March 1, 1959,
was a 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 of two months after the delivery of the notice
under s. 80 of the Civil Procedure Code. Both the Courts
overruled these contentions.
Counsel for the appellant submitted that the suit could not
have been instituted without giving 2 months’ notice as
required by s. 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 therefore, 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 suit within one year and 2 months from
the date on which the injury was 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,
687
1959, 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 Central
Government, where it relates to a Railway, until the
expiration of two months next after notice in writing has
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been delivered to or left at the office of the General
Manager of the Railway. It 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
though filed after 1 year and 2 months from the date when
the injury was committed. Section 80 only prescribes a
condition precedent for the institution of the suit and has
nothing to do with the period of limitation for a 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 Karnal
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 limitation prescribed for any suit expires on a
day when the Court is closed, the suit may be instituted on
the day the Court re-opens. But, if the Karnal Court was
not the proper Court in which the suit should have been
filed, the 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(1) 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 a case like the present. What it
provides is that, where the period of
limitation prescribed expires on a day when
the Court is closed, the application may be
made on the day when the Court reopens. In
’their Lordships’ view that means the proper
Court in which the application 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 Karnal Court
had no jurisdiction to entertain the plaint, it was not the
proper Court. The fact that the plaintiff would be entitled
to take advantage of the provisions of s. 14 of
(1) 62 I. A. 80.
L499Sup.C.I./73
688
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 Karnal Court. Section 14 of the Act only provided for
the exclusion of the time during which the plaintiff has
been prosecuting with due diligence another civil proceeding
against the defendant, where the proceeding is founded upon
the same cause of action and is prosecuted in good faith in
a Court which, from defect of jurisdiction, or other cause
of a like nature, is unable to entertain it Even if the
plaintiff was entitled to get an exclusion of the time
during which he was prosecuting the suit in the Karnal 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 instituted in the Trial Court by the
presentation of the plaint after it was returned for
presentation to the proper Court was a continuation of the
suit filed in the Karnal Court and, therefore, the suit
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
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to the proper Court and was Presented in that Court, the
suit 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 Karnal Court
(see the decisions in Hirachand Succaram Gandhy and others
v. G.I.P. Ry. Co.(1), Bimla Prasad Mukherji v. Lal Moni
Devi and Others(2) and Ram Kishun v. Ashirbad(3).
Therefore, the presentation of the plaint in the Karnal
Court on March 2, 1959, cannot be deemed to be a
presentation of it on that day in the trial Court.
Counsel for the appellant contended that the Karnal 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 appealed from, the
appellant is not precluded from challenging the finding in
the order that Mohri Railway Station is not within the
jurisdiction of the Karnal Court. On the other hand,
counsel for the respondent contended that since an order
passed under Order 7, rule 10 of the Civil Procedure Code,
returning a plaint for presentation in the proper Court, was
appealable under
(1) A.I.R. 1928 Bom. 421. (2) A. I. R. 1926 Calcutta 355.
(3) I. L. R. 29 Patna 699.
689
Order 43, rule 1 (a), the appellant is precluded from
challenging the correctness of the finding of the Court that
Mohri Railway Station was not within its jurisdiction as no
appeal was preferred from that Order by the appellant.
Counsel said that as that order has become final, it would
constitute res judicata and the appellant cannot challenge
its correctness in an appeal from the decree. Counsel
further said that s. 105 of the Civil Procedure Code which
enables a party to challenge the correctness of an inter-
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 the
Panipat Court cannot be deemed to be an order passed in the
suit in which the decree was passed by the trial Court, but
a final order which terminated the proceedings in the
Panipat Court. To put it in other words, the argument was,
that since the suit in the trial Court was not a
continuation of the suit which was filed in the Karnal
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. 105 of the Civil Procedure Code in an appeal
against 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 a
suit instituted by the presentation of a plaint in pursuance
to an order passed under Order 7, rule 10 of the Civil
Procedure Code is not a continuation of the suit as
instituted in the Court which had no jurisdiction to enter-
tain it. The rulings of this Court in Satyadhan Ghosal and
Others v. S. M. Deorajin Debi and Another(1) and Arjun Singh
v. Mohindra Kumar and Others(2) were also referred to by
Counsel to show that the order passed by the Panipat Court
returning the plaint for presentation to the proper Court
was a final order and operated as res judicata precluding
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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 preclude the appellant from contending in
this appeal that the Karnal Court had jurisdiction to
entertain the suit, for the reason that the appellant never
raised the contention before the trial Court that Karnal
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 Karnal 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 a like nature.
(1) [1960] 3 S. C. R. 590.
(2) [1964] 5 S. C. R. 946.
690
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, that Karnal Court was the proper Court for filing
the suit. No doubt, he invoked the provision of s. 4 of the
Act and 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 Karnal Court had no jurisdiction to
entertain the plaint, he was entitled to the benefit of s.
4. In these circumstances, we do not think that the appel-
lant should be permitted to urge before this Court that the
Karnal 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.
As the suit was barred by limitation, we do not think it
necessary to consider the question whether the appellant is
entitled to get any further amount by way of damages.
We dismiss the appeal but, in the circumstances, the parties
will bear their costs.
S.C. Appeal dismissed.
691