http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

CASE NO.: Appeal (civil)  5609 of 2006

PETITIONER: Sankar Dastidar

RESPONDENT: Shrimati Banjula Dastidar & Anr

DATE OF JUDGMENT: 05/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  [Arising out of S.L.P. (Civil) No. 23472 of 2005]

S.B. SINHA,  J :

       Leave granted.   

       What would be the period of limitation for raising a counter claim in  respect of wrongful detention of goods is the question involved in this  appeal which arises out of a judgment and order dated 19.01.2005 passed by  the High Court of Calcutta in F.A. No. 71 of 2002.

       Appellant and late Kamakshya Kumar, husband of Dipti Dasgupta  Respondent No. 2 herein are brothers.  Banjula Dastidar, Respondent No. 1  herein is their sister.  They had one more sister Bulbul Dastidar (who died in  November, 1987).  A suit was filed by Respondent No. 1 against the  appellant inter alia for declaration of title in regard to their residential house  situate at P-824, New Alipore, Kolkata.  Allegedly, the appellant had put a  lock, in a room where Respondent No. 1 Banjula used to stay, on  16.03.1987.  An inventory was made in the said suit by appointing an  Advocate Commissioner.  A suit was filed by the appellant thereafter.  A  counter claim was filed by Respondent No. 1 in the said suit claiming  damages for wrongful detention of her belongings on 24.06.1992.  The  amount of claim was purported to have been made on an allegation that  validity of a National Saving Certificate could not be renewed and, thus, she  had suffered a loss of Rs. 88,000/-.  She also claimed damages to the tune of  Rs. 50,000/- for wrongful detention of her belongings including garments  and personal effects.  The suit was withdrawn.  The counter claim, however,  was treated to be a suit.  It was decreed.   

       One of the questions which was raised in the appeal was as to whether  the said counter claim was barred by limitation.

       The Division Bench of the High Court on the premise that Section 22  of the Limitation Act, 1963 shall be applicable proceeded to hold that the  suit was not barred by limitation.

       One of the learned Judges of the Division Bench although opined that  a completed tort is not a continuing wrong, but held:

"\005It is of the very essence of a continuing wrong  that it is an act which creates a continuing source  of injury and renders the doer of the act  responsible and liable for the continuance of the  injury.  If the wrongful act causes an injury which  is complete, there is no continuing wrong through  the damage resulting from the act may continue."

       In support of its judgment, the Division Bench has placed strong

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

reliance upon a Division Bench decision of the Calcutta High Court in Sarat  Chandra Mukherjee v. Nerode Chandra Mukherjee and Others [AIR 1935  Calcutta 405].  It was a suit for declaration of plaintiff’s right in respect of  user of the lands on which certain sheds had been created as a passage which  was obstructing thereto.  It was in that premise held to be a continuing  wrong.

       A suit for damages, in our opinion, stands on a different footing vis-‘- vis a continuous wrong in respect of enjoyment of one’s right in a property.  When a right of way is claimed whether public or private over a certain land  over which the tort-feasor has no right of possession, the breaches would be  continuing one.  It is, however, indisputable that unless the wrong is a  continuing one, period of limitation does not stop running.  Once the period  begins to run, it does not stop except where the provisions of Section 22  would apply.   

       Articles 68, 69 and 91 of the Limitation Act govern suits in respect of  movable property.  For specific movable property lost or acquired by theft,  or dishonest misappropriation or conversion; knowledge as regards  possession of the party shall be the starting point of limitation in terms of  Article 68.  For any other specific movable property, the time from which  the period begins to run would be when the property is wrongfully taken, in  terms of Article 69.  Article 91 provides for a period of limitation in respect  of a suit for compensation for wrongfully taking or injuring or wrongfully  detaining any other specific movable property.  The time from which the  period begins to run would be when the property is wrongfully taken or  injured or when the detainer’s possession becomes unlawful.

       The possession was said to have been taken over the entire property  on 16.03.1987 when the appellant had put a lock in the room.  The counter  claim was filed by Respondent No. 1 on 24.06.1992, i.e., five years after the  alleged detention.  In the peculiar facts and circumstances of a case of this  nature, if Article 91 of the Limitation Act would not apply, the residuary  provision would.  The fact that the plaintiff had locker in the room where the  almirah containing the goods belonging to Respondent No. 1 was stored was  known to Respondent No. 1 on 16.03.1987.  She knew thereabout.  If she  had to claim damages for that act on the part of the appellant, she should  have filed a suit within a period of three years from the said date.   Furthermore, Respondent No. 1 knew about the purported alleged wrongful  act on the part of the appellant.  She filed an application in the nature of pro  intersse suo in the earlier suit.  The same was rejected.  Her cause of action  was different and distinct from that of her brother.  One lis was in relation to  the declaration of title as also possession, another one was in respect of  damages for wrongful detention of specific movable properties.  Only  because in another legal proceedings by and between the appellant and  Respondent No. 2, an Advocate Commissioner was appointed and inventory  of the goods of the said room was prepared, the same, in our opinion, would  not give rise to a fresh cause of action for laying a claim for damages.  The  matter might have been different if a suit for possession of the goods had  been filed.

       We, therefore, are of the opinion that the impugned judgment cannot  be sustained which is set aside accordingly.  The appeal is allowed.   However, in the facts and circumstances of this case, there shall be no order  as to costs.