Skip to content


Abdulla Mahomed Jabli Vs. Abdulla Mahomed Zulaikhi - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberCivil Reference No. 6 of 1923
Judge
Reported inAIR1924Bom290; (1923)25BOMLR1333; 84Ind.Cas.796
AppellantAbdulla Mahomed Jabli
RespondentAbdulla Mahomed Zulaikhi
Excerpt:
.....caused to him :-;(1) that the suit was governed not by article 36, but by article 92, of the indian limitation act, and was as such time-barred;;(2) that the period of limitation ran from the date when the injury was caused to him and not from the date when his eye-ball was removed;;(3) that section 34 of the indian limitation act did not apply, for it related to an act which did not give rise to a cause of action unless some specific injury resulted therefrom;;(4) that neither did section 6 of the act apply to the case. - - 5. on behalf of the plaintiff it has been suggested that article 36 should apply as it is a suit for compensation for malfeasance or misfeasance and if that article applies, undoubtedly the plaintiff would have a good answer to the objection on the score of..........time-barrad. the article which applies to a suit of this nature is article 22 of schedule i of the indian limitation act, and according to that article a suit for compensation must be brought within one year from the date when the injury is committed.5. on behalf of the plaintiff it has been suggested that article 36 should apply as it is a suit for compensation for malfeasance or misfeasance and if that article applies, undoubtedly the plaintiff would have a good answer to the objection on the score of limitation, as he would have two years under that article within which to file his suit from the time when the misfeasance, was caused. but i am of opinion that article 36 cannot apply because in terms it applies where the claim is one for compensation for malfeasance or misfeasance.....
Judgment:

Lallubhai Shah, Kt., Ag. C.J.

1. This is a reference by the Resident at Aden in Appeal No. 20 of 1922 on the file of that Court. The reference arises out of a suit filed by the plaintiff for damages resulting from injury caused to him by the defendant through the instrumentality of one Ali Mahomed Farag. The plaintiff's case was that, on September 6, 1920, Ali Mahomed Farag threw sulphuric acid in his face and thereby caused injury to him which ultimately resulted in the loss of one of his eyes. The defendant was said to have instigated Ali Mahomed Farag to cause this injury to the plaintiff and the plaintiff claimed damages from the defendant on that account. The suit was filed on February 13, 1922. Soon after the injury was caused, there were criminal proceedings against Ali Mahomed Farag and the present defendant. The trial Court in the criminal case convicted both Ali Farag and the present defendant. But the defendant was ultimately acquitted in appeal on November 20 1920. The trial Court decided all the issues of fact in favour of the plaintiff, and passed a decree on that basis. The defendant appealed and the points raised in appeal werethese:

1. Is the suit barred by limitation?

2. Is the fact established that the defendant instigated Ali Mahomed Farag to throw acid on plaintiff and that in consequence of this instigation Ali Mahomed Farag did throw the acid thereby destroying one eye and damaging the other, besides causing other serious injuries to the plaintiff?

3. Should not there be some basis for assessing damages and should not some evidence be produced, to enable the Judge to arrive at a correct deoision of the amount ?

2. Under Section 8 of the Aden Civil and Criminal Justice Act (Act 11 of 1864) the case has been referred to this Court for our decision.

3. The second point was dealt with first and his Lordship's opinion was : I am of opinion, therefore, that the finding on point No. 2 raised in appeal should be in favour of the plaintiff.

4. The first point relates to a question of law. The question is whether the suit is time-barrad. The Article which applies to a suit of this nature is Article 22 of Schedule I of the Indian Limitation Act, and according to that Article a suit for compensation must be brought within one year from the date when the injury is committed.

5. On behalf of the plaintiff it has been suggested that Article 36 should apply as it is a suit for compensation for malfeasance or misfeasance and if that Article applies, undoubtedly the plaintiff would have a good answer to the objection on the score of limitation, as he would have two years under that Article within which to file his suit from the time when the misfeasance, was caused. But I am of opinion that Article 36 cannot apply because in terms it applies where the claim is one for compensation for malfeasance or misfeasance independent of contract and not specially provided for. But as injury to the person is specially provided for under Article 22, I am unable to accept the contention, urged on behalf of the plaintiff, that Article 36 can apply. If Article 22 applies, it is clear that the plaintiff's claim is beyond time, because it is brought more than one year after the date of the injury to him.

6. By way of answer to this point, it has been urged on behalf of the plaintiff that this was a continuing wrong and that the wrong continued up to the time the result of sulphuric acid having been thrown on the plaintiff's face were fully known, that is up to July 1921 when the operation is said to have been performed and the eyeball removed. It is said that though the act of throwing the acid was committed on September 6, the acid continued to take effect, and that was a continuing wrong within the meaning of Section 23 of the Indian Limitation Act, I am unable to accept this contention. I think in the present case the injury was committed on September 6, when sulphuric acid was thrown at the plaintiff and the continuance of its effect up to a later date, in my opinion, does not make the wrong a continuing wrong within the meaning of Section 23 of the Indian Limitation Act.

7. Further it is urged that under Section 24 of the Act the period of limitation should be computed from the time when some specific injury actually resulted from this act. It is urged in support of this contention that as the injury actually resulted from the throwing of sulphuric acid in July 1921, the period of limitation should be computed from that date, No doubt if the first condition necessary to attract the application of Section 24 is satisfied, that argument might be good. But the section relates to an act which does not give rise to a cause of action unless some specific injury actually results therefrom. In the present case, it is not possible to treat the act of instigating a person to throw sulphuric acid in the face of another person, or rather the act of throwing sulphuric acid in the face of a person as an act; which does not give rise to a cause of action. Such an act would be clearly punishable under the Indian Penal Code; and would be sufficient by itself to give rise to a cause of action for a claim for compensation as the act itself constitutes an injury. Therefore Section 24, in my opinion, cannot apply to this case. Several cases have been referred to in the course of the argument, but I do not think that in view of this initial difficulty in applying Section 24 of the Indian Limitation Act, it would serve any useful purpose to examine the cases cited at the bar in connection with this point.

8. In the last resort, the learned Counsel for the plaintiff has argued that the plaintiff was in such a state of health after this injury was caused to him that until the eyeball was removed in July 1921, he would be really in the position of an insane person within the meaning of Section 6 of the Indian Limitation Act, If there was any substance in this point, I should have allowed the plaintiff an opportunity of proving this question of fact, and of enabling him to establish that under Section 6 he was subject to a disability and was not in a position to institute the suit in time. But I do not think it could serve any useful purpose to allow the plaintiff a further opportunity to adduce evidence on a point of this nature. It is clear that he was examined as a witness in the criminal proceeding, and while I am prepared to concede that he was in a great state of mental weakness on account of the serious injuries which resulted from this inhuman assault on him, it would be straining the language beyond a reasonable limit to think that he could establish that he was insane within the meaning of Section 6 of the Indian Limitation Act.

9. I have considered these contentions urged on behalf of the plaintiff with care. It is true that the point of limitation was not raised in the trial Court, and therefore, the facts which would otherwise have been investigated with reference to that point were not investigated from that point of view. All the contentions urged before us which have been raised by way of answer to the point of limitation are dependent upon allegations of fact which would, if necessary, require further investigation; and the plaintiff's contention before us has been that he should be allowed an opportunity of proving those allegations of fact. But taking the allegations upon which those contentions are based at their highest, I am unable to think that the case could be brought either within Section 24, or within the scope of Section 6, of the Indian Limitation Act, and there, fore I do not think that it would serve any useful purpose to postpone the decision on the question of limitation. I do not see really any answer to the point of limitation which was raised on behalf of the defendant for the first time in the Court of the Resident at Aden in appeal. It is an unfortunate result from the plaintiff's point of view, and it is undoubtedly hard that his case should fail on this ground. But the provisions of Article 22 of the Indian Limitation Act appear to be too clear to admit of any doubt as to the effect of that Article on this particular claim. On this issue my opinion is that the suit is barred by limitation. I do not consider it necessary to deal with point No. 3 in the view I have taken of point No. 1 as to limitation in the case. But it may be added that both parties agreed that the course suggested by the Resident at Aden would be the proper course to follow in case any inquiry as to the amount of damages were necessary.

10. In my opinion the suit should be dismissed. Under Section 13 of, the Aden Civil and Criminal Justice Act, costs of the reference will be costs in the suit, which will have to be dealt with by the Resident, when he disposes of the appeal in conformity with our decision. But we may mention that it will be perfectly open to him under the circumstances to direct each party to bear his own costs throughout, if he thinks it proper to do so.

Crump, J.

11. This was a suit for compensation for malfeasance. The plaint was filed on February 13, 1922, and it set out that, on September 6, 1920, sulphuric acid was thrown in the plaintiff's face at the instigation of the defendant, and that the plaintiff thereby suffered the injuries set out in the medical certificate appended to the plaint. Among those injuries was the complete destruction of the plaintiffs left eye. The first Court passed a decree in favour of the plaintiff, and from that decree there was an appeal to the Court of the Resident who has referred for our decision three points. Of these I propose to deal with the two first points only. They are as follows:

1. Is the suit barred by limitation?

2. Is the fact established that the defendant instigated Ali Mahomed Farag be throw acid on plaintiff and that in consequence of this instigation Ali Mahomed Farag did throw the acid thereby destroying one eye and damaging the other, besides causing other serious injuries to the plaintiff?

12. The second of these points deals with the facts of the case, and after hearing the arguments of counsel on either side, and examining the record, I find it necessary only to say this much that I am not prepared to differ from the view taken by the trial Court and by the Court of Appeal as to the question of fact.

13. The first point, however, is, though plain enough, a little more difficult and requires to be treated at greater length. As I have said, this is a suit for compensation for malfeasance, and as such would fall under Article 86 of the first Schedule of the Indian Limitation Act, were it not otherwise specially provided for, It may be noted that under Article 36 time runs from the time when the malfeasance took place, and under Article 22, which is only a special case from the general case dealt with under Article 36, in cases of compensation for injury to the person, time runs from the date when the injury is committed. In both cases the malfeasance gives rise to a cause of action, and time runs from the moment when the malfeasance takes place. The Indian Limitation Act extends to the whole of British India of which Aden forms part, and Section 16 of the Aden Civil and Criminal Justice Act (Act II of 1864) makes any Act or Acts in relation to civil procedure in force for the time being applicable to the Courts at Aden.

14. Now, as I have said, this is a suit for compensation for injury to the person, and under Article 22 of the First Schedule of the Indian Limitation Act, time begins to run in the words of the Article, 'when the injury is committed' and a suit for compensation must be brought within one year from that time. In this case on the plaint itself it is apparent that in all substance the injury was committed on September 6, 1920, for plaintiff's eye was destroyed on that date and the suit, therefore, is not brought within the time prescribed by the Article. I see no justification for reading Article 22 in any other sense than that which I have indicated. Here on the plaint itself there plainly was a cause of action at the very date of the assault, that is to say, September 6, 1920, and, therefore, the plaintiff was bound to bring his suit within one year from that date. This he has failed to do, and unless he can escape in any way from the operation of that Article, his suit must be dismissed as time-barred.

15. Now three arguments have been placed before us. First, it is urged that this is a case of a continuing wrong, and is, therefore, covered by Section 24 of the Indian Limitation Act. I do not think that this argument can possibly prevail. It is not always easy to say what a continuing wrong is. But plainly that which is done in the present case is not a continuing wrong. The act of malfeasance was complete at the time when the vitriol was thrown in the plaintiff's face, and the subsequent consequences are no part of the cause of action in such a case.

16. Then it was said that Section 24 of the Indian Limitation Act applies. But the answer to that clearly is that it is only where it is necessary to consider the act plus the consequences as the cause of action that the time runs from the consequences where those consequences are injurious. In this case there was a cause of action at the very time of the assault, and therefore Section 24 could have no application. The illustration to Section 24 indicates with sufficient clearness the kind of acts the legislature had in mind in enacting that section.

17. Lastly, it was urged that plaintiff was suffering from a disability. But there is really nothing on the record on which such a plea can effectively be based. In hit reply to the memorandum of appeal, paragraph 3, it is not suggested that the plaintiff was insane, but that he had suffered serious injuries which perhaps to some degree affected his mental capacity, as stated in the medical certificate given to him at that date. The medical certificate falls far short of establishing anything that could possibly be regarded as insanity for the purposes of Section 6 of the Indian Limitation Act. Upon this point it runs as follows:-'Apparently this severe injury has also affected his mental slate very considerably and the two combined have made him unfit for work since the injury'. There is nothing more than this in the case, and there is nothing to show that at any time the plaintiff was what can properly be called insane. On the contrary, it is admitted that he was examined as a witness in a criminal case against the defendant. It, therefore, seems to me this argument also fails, and it is not possible to suggest any ground on which the plaintiff can escape the bar of limitation. In view of what I have said as to the facts, I regret the conclusion, but it seems to me inevitable. I agree, therefore, with the judgment of my learned brother.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //