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Ponnu Nadar and 4 ors. Vs. Kumaru Reddiar and 10 ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Criminal
CourtChennai
Decided On
Reported in(1935)69MLJ739
AppellantPonnu Nadar and 4 ors.
RespondentKumaru Reddiar and 10 ors.
Cases ReferredRajah of Venkatagiri v. Isakapalli Subbiah I.L.R.
Excerpt:
.....within which to establish their right, and we are not greatly impressed by the argument that, if the right itself may be indestructible, the remedy ought not to have been permanently lost by their failure to take action within that..........affairs which continues to exist. what we have to find however is the existence of a 'continuing wrong' a wrong, that is, originated by and kept in existence by the opposite party. what in fact appears to have given rise to the joint magistrate's order was a police report of an apprehended breach of the peace between the rival factions and all that the opposite party did was to adopt an attitude which gave rise to that apprehension. so far as that attitude itself is concerned it is impossible to find in it a continuing wrong, nor do we find it easier to hold that when the joint magistrate passed the order with a view to prevent a breach of the peace there was a ' continuing wrong' caused by the defendants' party. there is nothing to show that it was passed at their instance and, even.....
Judgment:

Curgenven, J.

1. This Second Appeal arises out of a suit brought by three Nadars, who are brothers, to establish their own right and the right of their castemen to pass in procession over a certain route in their village of Mela Seithalai. The defendants are other castemen of the village, such as Nayagars, Reddis and Assaris, who deny that the plaintiffs enjoy this right. The occasion for the suit was provided by two attempts, on the 8th November and 13th December, 1918, made by the plaintiffs to take marriage processions over the route in question, these attempts, it is said, being met by obstruction and intimidation on the part of the defendants' party. The route over which it is claimed to exercise the right has been found by the lower Appellate Court to be composed of public streets.

2. The question which we have to decide is one of limitation. The dispute has had a somewhat long history, and we have to go back to 1900, when the Nadars of Mela Seithalai village attempted to carry a corpse in procession over the same route. The police reported that there was likely to be resistance on the part of the other caste people, and a breach of the peace, and accordingly the Joint Magistrate, Mr. Vibert, I.C.S. passed an order directing that no organised procession of Shanars or Christians should pass along those streets until a civil Court had declared that there was a right to do so. It is not disputed that this order was passed under Section 147 of the Code of Criminal Procedure, although it may be open to some question whether the occasion was really appropriate for an order of this character, nor is it contended that the order was without jurisdiction and therefore a nullity. The contention of the defendants in the present suit is in brief that this order being still in force and no suit having been filed within the prescribed period by the Nadars to establish the right in question the present claim is time-barred. This point has been decided against the plaintiffs by the Courts below and plaintiffs accordingly appeal.

3. We have in the first place to decide whether, in view of what took place in 1900, the plaintiffs can derive a cause of action from the alleged occurrences in 1918. Where there are successive invasions or denials of a right, time will in general run from the first of the series. For this proposition ample authority will be found in Thirumala Rao v. Kadekar Durgi Shettethi (1913) 22 I.C. 883 Syed Mamshah Thaika v. The Secretary of State for India (1918) 37 M.L.J. 213 Chathu v. Neelakandhan : (1922)42MLJ457 and Krishnaji Anajee v. Anajee Dhondajee I.L.R.(1929) 54 Bom. 4. In special cases, where for instance the later invasion is of a different and more serious kind, as a sale following an attachment of property Anantharazu v. Narayanarazu I.L.R.(1911) 36 Mad. 383 : 22 M.L.J. 108 or where the enjoyment, though disputed, is not actually interfered with, Muhammad Hanif v. Ratan Chand I.L.R. (1921) 3 Lah. 43 an exception to this rule may be admitted. We think that the general rule must be applied in the present case because in 1900 not only were the Nadars prevented from going in procession but an order was obtained disallowing all further processions until the right had been established. This latter circumstance affords, we think, another and a different ground for declining to accept the contention that the subsequent occurrences created a valid cause of action. At the time that these later processions were attempted, the Magistrate's order was in force, and the Nadars had no right to go in procession in disobedience of it. It can scarcely be said therefore that they were obstructed in the exercise of a subsisting right, nor ought the Court to recognise as affording a cause of action conduct which involves the infringement of a lawful order. For the application of this principle in somewhat similar circumstances reference may be made to Ram Sahai v. Binode Bihari Ghosh I.L.R. (1923) 45 All. 306. In that case the plaintiffs against whom an order had been made under Section 145 of the Code of Criminal Procedure forcibly evicted the defendant from the land and it was decided that they could not enlarge the period of limitation prescribed by law by taking the law into their own hands.

4. The plaintiffs must accordingly relate back their suit to the order of 1900, by which whatever right they and their fellow-castemen had to go in procession was suspended. Can they escape the apparently unavoidable conclusion that the suit is barred by Article 120 of the Limitation Act? Mr. T.R. Venkatrama Sastri for the appellants argues in the first place that to a claim of this character no rule of limitation will apply. He has cited authorities to show that the right to use public streets, including the right to go in procession, is a natural right inherent in every member of the public, and cannot be prescribed against or lost as other rights may be prescribed against or lost. This is no doubt true. But that is not to say that where a suit has to be brought in order to obtain a declaration that such a right exists the Limitation Act has no application, section 3 of that Act lays down that subject to the provisions contained in Sections 4 to 25, every suit instituted after the period of Limitation prescribed therefor by the first schedule shall be dismissed. We have been referred to no provision of the Limitation Act which would exempt a suit of this character, and the argument we think loses sight of the fact that although a right may exist the civil remedy available to the party if the right is denied or infringed may be lost by lapse of time. It has not been disputed that if the Limitation Act applies the appropriate article is Article 120.

5. The Appellants then take up the further position that the order of 1900 constituted 'a continuing wrong', so that the case is governed by Section 23 of the Limitation Act which says:

In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues.

6. We have been referred to two cases one of which supports while the other is against this position Brojendra Kishore Roy Choudhury v. Sarojini Ray (1915) 20 C.W.N. 481 and Rajah of Venkatagiri v. Isakapalli Subbiah I.L.R.(1902) 26 Mad. 410. Both these cases related to an attachment of land by the Court under Section 146 of the Code of Criminal Procedure, ensuing upon a dispute likely to cause a breach of the peace. No suit was brought within the six years allowed by Article 120 of the Limitation Act which, it was agreed, is the correct article applicable, and when a suit for a declaration of title was eventually brought the question of limitation arose. In the Madras case, the learned Judges, criticising the Calcutta judgment in Chukkun Lal Roy v. Lalit Mohun Roy I.L.R.(1893) 20 C. 906 which appears to have been based on the view put forward here, as we have said, by Mr. Venkatrama Sastri, that so long as the right to the property is not extinguished a suit for a declaration will not be barred, the learned Judges observe:

The criterion is not whether the 'right' is a 'continuing' one but whether the 'wrong' is a continuing one.

7. And they think it is impossible to hold that the wrongful denial by the defendant of the plaintiff's title to possession and the procuring by such denial of the attachment by the Magistrate constituted a continuing wrong within the meaning of Section 23 of the Limitation Act A contrary view has been taken in the Calcutta case. The learned Judges seem to have been impressed by the anomaly that although the title to the property would not be extinguished the suit to declare the title would be barred, and before considering the question really in issue they adopt the language of Lord Ellenborugh in Luxmore v. Robson (1818) 106 E.R. 215 : I.B. & Ald. 584 and say:

The common sense, the practice, and the general inconvenience of man kind, require that a construction different from that in the case cited should be adopted.

8. Passing on to consider what is a continuing wrong, they too dissociate themselves from the decision in Chukkun Lal Roy v. Lalit Mohun Roy I.L.R.(1893) 20 C. 906. Then they say:

In the case before us, the view may reasonably be maintained that there is a continuing wrong independent of contract and that consequently a fresh period of limitation under Article 120 begins to run at every moment of the time the wrong continues. It is needless for our present purpose to attempt an exhaustive definition of the expression 'continuing wrong'. But it may generally be stated that if the act complained of creates a continuing source of injury and is of such a nature as to render the doer of it responsible for the continuance, then, in cases in which damage is not of the essence of the action, as in trespass, a fresh cause of action arises de die in diem. To put the matter in another way, where the wrongful act produces a state of affairs, every moment's continuance of which is a new tort, a fresh action for the continuance lies, for there is a real distinction between continuance of a legal injury and continuance of the injurious effects of a legal injury. Tested from this point of view, what is the position here? The defendants attempted to interfere with the possession of the plaintiffs, and a breach of the peace became imminent. The Magistrate intervened, as it was incumbent upon him to do, and attached the property. The result was that the plaintiffs were deprived of the enjoyment of their property. This state of things had continued, though it could have been terminated if the defendants had intimated to the Magistrate that they abandoned all claim to the property and would not cause a breach of the peace by an endeavour to obtain possession by force. We think, in these circumstances, that the case may aptly be treated as one of continuing wrong within the meaning of Section 23 of the Indian Limitation Act. From this point of view, no question of limitation arises.

9. The tests proposed by the learned Judges to discover whether a cause of action constitutes a continuing wrong are, we have no doubt, correct. There must be not a single wrongful act from which injurious consequences follow, but a state of affairs every moment's continuance of which is a new tort. Further, the person who intentionally produces the state of affairs must be intentionally causing it to continue, though in a position to terminate it at his pleasure. Simple illustrations of ordinary and continuing wrongs are a blow with a stick and wrongful imprisonment respectively. In the one case the injury ceases though the injurious effect may persist. In the other the injury continues and every moment a person is wrongfully imprisoned a fresh tort is committed and fresh cause of action arises. The commonest examples of continuing wrongs are to be found in interference with water supply Rajrup Koer v. Abdul Hossein (1800) L.R. 7 IndAp 240 : I.L.R 1800. 6 Cal. 394 (P.C.) and obstruction to rights of way, Jurawan Singh v. Ramasarekh Singh (1933) I.L.R. 12 Pat. 261, Nazim v. Wazidulla (1915) 21 C.L.J. 640 Dwarka Nath Sen v. Tara Prasanno Sen A.I.R. 1923 Cal. 356 and Sreemati Soojan Bibi v. Shamed Ali (1892) 1 C.W.N. 96. In such cases, it is always open to the obstructing party to discontinue the obstruction. In Hukum Chand v. Maharaj Bahadur Singh I.L.R.(1933) 12 Pat. 681 (P.C.) the Privy Council applied the same principle to a case where interference with customary worship was concerned. Cases which bear some resemblance to the present circumstances are those of attachment of property. In Jhabbu v. Musammat Batul I.L.R.(1922) 45 All. 208 it has been held that where a wrongful distraint has been levied it is a continuing wrong and time will run from the date on which the party came to know of it. The contrary view has been taken in Venkataramier v. Vaithilinga Thambiran I.L.R.(1913) 38 Mad. 655, where, after observing that the weight of authority in Madras is against the contention, Miller, J, says:

Where the proceedings which give rise to the cause of action consists in the wrongful distraint that distraint is not a continuing wrong, though no doubt the injury continues.

10. In the present case it is no doubt arguable that some analogy exists between an order which bars a right to take a procession and an obstruction which bars a right of way. Both, in a sense, create a state of affairs which continues to exist. What we have to find however is the existence of a 'continuing wrong' a wrong, that is, originated by and kept in existence by the opposite party. What in fact appears to have given rise to the Joint Magistrate's order was a police report of an apprehended breach of the peace between the rival factions and all that the opposite party did was to adopt an attitude which gave rise to that apprehension. So far as that attitude itself is concerned it is impossible to find in it a continuing wrong, nor do we find it easier to hold that when the Joint Magistrate passed the order with a view to prevent a breach of the peace there was a ' continuing wrong' caused by the defendants' party. There is nothing to show that it was passed at their instance and, even if it were, responsibility for passing it must be taken by the Court and not laid upon the party. Again, once an order was passed, the matter was taken out of the hands of the defendant party, and it lay with the Nadars themselves to establish their right by suit. From this point of view too we are not disposed to hold that even if there was a continuing wrong the defendant party was responsible for its continuance. Where the applicability of Section 23 of the Limitation Act is doubtful the proper course must be, we think, to enforce against the plaintiffs the ordinary principles of limitation and in the present case to apply Article 120 in the same manner as Article 47 would be applied to the case of an order under Section 145 of the Code of Criminal Procedure-time being taken to run from the date of the order. Adopting this view the persons affected by the order of 1900 had a period of six years within which to establish their right, and we are not greatly impressed by the argument that, if the right itself may be indestructible, the remedy ought not to have been permanently lost by their failure to take action within that time. We must hold in agreement with Rajah of Venkatagiri v. Isakapalli Subbiah I.L.R.(1902) 26 Mad. 410 that the suit is barred under Article 120 of the Limitation Act. The Second Appeal is dismissed with costs of the contesting respondents. We certify for a fee of Rs. 150 under Rule 46 of the Practitioners' Fees Rules.


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