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(Kaviraj) Baroda Kant Sen Vs. Court of Wards in Charge of Baraon Estate - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1931All752
Appellant(Kaviraj) Baroda Kant Sen
RespondentCourt of Wards in Charge of Baraon Estate
Excerpt:
- - on the other hand the proviso to that section indicates that when there is good or sufficient cause a suit may be filed even without the claim ever having been notified under section 17. the notification of the claim under the last-mentioned section is merely an information to the collector of the particulars of the claim......under which ha thought the claim was barred.4. the first question is which article applies to the claim the claim, as pointed out above, consists of two parts. one relating to the recovery of the fees due for medical attendance and the other to the price of medicines supplied. as regards the latter claim there can be no doubt that article 52 would be directly applicable. the medicines supplied, which had to be paid for, were goods sold and delivered where no fixed period of credit is agreed upon and a suit had to be brought within three years from the date of the delivery of the goods.5. as regards the former claim it is difficult to apply article 56 which relates to a suit for the price of work done by the plaintiff for the defendant at his request. no special article appears to be.....
Judgment:

Sulaiman, Ag. C.J.

1. This is a civil revision from an order of the Court of Small Causes dismissing the plaintiff's suit for recovery of fees for attendance as a medical practitioner and for the price of the medicines supplied to the late Raja of Baraon whose estate was taken over by the Court of Wards after his death. The suit has been thrown out on the plea of limitation.

2. In the plaint the plaintiff alleged that ha was a practitioner belonging to the Ayurvedic system and attended the Raja during his illness, that, he paid visits and supplied medicines to him from 16th December 1924 to 26th March 1926, the total amount coming up to Rs. 640 and that the Raja promised to make prompt payment of the above sum, but did not do so, and died on 7th April 1926. The plaintiff alleged that ha notified his claim to the Manager of the Court of Wards and was waiting for his reply, when ha was informed ultimately on 80th November 1928 that his claim was disallowed. The plaintiff than served the defendant with a notice under Section 54, Court of Wards Act, and instituted the present suit on 3rd September 1929.

3. The learned Judge of the Court of Small Causes came to the conclusion that the plaintiff was not entitled to any exclusion of time on account of the inquiry into his claim that remained pending in the Court of Wards and that accordingly his suit was barred by time. The learned Judge did not refer to any particular article of the Limitation Act under which ha thought the claim was barred.

4. The first question is which article applies to the claim The claim, as pointed out above, consists of two parts. One relating to the recovery of the fees due for medical attendance and the other to the price of medicines supplied. As regards the latter claim there can be no doubt that Article 52 would be directly applicable. The medicines supplied, which had to be paid for, were goods sold and delivered where no fixed period of credit is agreed upon and a suit had to be brought within three years from the date of the delivery of the goods.

5. As regards the former claim it is difficult to apply Article 56 which relates to a suit for the price of work done by the plaintiff for the defendant at his request. No special article appears to be applicable to a claim by a medical practitioner for recovery of his fees for attendance on a patient. The residuary Article 115 which applies to all breaches of contract, would therefore apply, for there was undoubtedly a contract, at least, an implied one, to pay the fee, and the nonpayment of that fee amounted to a breach for which the plaintiff would be entitled to compensation. In Harish Chander Surmah v. Brojonath Chackerbutty [1870] 13 W.R. 96 a suit for recovery of compensation for the fees of a medical practitioner was held to lie under the corresponding article of the Limitation Act then in force.

6. The next question is from what date the period of three years would begin to run. The starting point is:

When the contract is broken or (where there are successive broaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases.

7. In the plaint the plaintiff himself alleged that the cause of action for recovery of the visits accrued when the visits were paid. There was therefore an implied contract to pay the fee on each day. As the fee became due immediately a visit was paid, it would follow that nonpayment would amount to a breach of the contract. In any case the plaintiff admits that in the lifetime of the Raja, presumably on a demand being made, he promised to make prompt payment of the sum of Rs. 640, but ha did not do so, and died. This implies an admission that a demand was made and there was a premise to pay the fee promptly and that promise was not carried out. It would therefore follow that there was a breach, if not each day, then on the date of the last visit or at any rate when the Raja died, and the period of limitation would begin to run at least from the date of the death of the Raja. The mere fact that the sons of the Raja or the Court of Wards which now represents his estate would be liable under Section 37, Contract Act, would not keep the running of the period of limitation in suspense.

8. The next question is whether the plaintiff is entitled to any exclusion of time so far as the period of two months required for the notice under Section 54 is concerned. That period must be excluded under Section 15 (2), Limitation Act.

9. The learned Counsel for the applicant strongly contends that inasmuch as the Court of Wards made the plaintiff wait, and the refusal was not communicated to him till 30th November 1928 the whole of the period from the date of notifying the claim till that date should be excluded. It is urged that the whole scheme of the Court of Wards Act seems to be that the plaintiff should not sue till it is made known whether his claim has been allowed or disallowed by the Court of Wards. Section 21 of the Act however refers to the stay of proceedings in execution only and not to the institution of suits. Similarly Section 20 merely provides that the decision of the Collector will not be final and can be contested in a civil suit. It does not prohibit the institution of the suit itself. On the other hand the proviso to that section indicates that when there is good or sufficient cause a suit may be filed even without the claim ever having been notified under Section 17. The notification of the claim under the last-mentioned section is merely an information to the Collector of the particulars of the claim. It is not necessarily a notice of a civil suit on the basis of that claim. Section 15 (2), which excludes the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment, would therefore not apply to the notifying of the claim under Section 17. It may be a somewhat unfortunate thing for claimants, but in the absence of any express enactment requiring that the period of limitation should be suspended during the pendency of the inquiry to the claim by the Court of Wards, the period prescribed by Article 115 must continue to run. The present claim having been brought more than three years after the accrual of the cause of action, even when the two months are excluded, is accordingly barred by time.

10. Inasmuch as the period of limitation for the suit expired because of the considerable delay caused by the Court of Wards itself in disallowing the plaintiffs claim, we think that the parties should bear their own costs in both Courts. We accordingly allow the revision in part, and, upholding the decree of the Court below, direct that the parties should bear their own costs in both Courts.


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