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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