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Corporation of Madras by Commissioner Vs. B.D. Kothandapani Chetty - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported inAIR1958Mad620; (1958)2MLJ377
AppellantCorporation of Madras by Commissioner
RespondentB.D. Kothandapani Chetty
Cases ReferredIn Maya Ram v. Municipal Committee
Excerpt:
- - 6. there are decisions which support the view that article 36 applies to a case like the present......years of the date of the injury. the learned judge of the court of small causes who tried the suit held that article 49 was applicable and therefore the suit was in time. he decreed the suit for rs. 234-10-3 and proportionate costs. there was an application for a new trial filed by the defendant. the new trial application was allowed by the two learned judges who heard it on the ground that the suit was barred by time. in the opinion of the learned judges, article 36 applied. in the result the suit was dismissed. hence this civil revision petition filed by the corporation.2. article 36 runs thus:for compensation for any rual two years when the malfeasance, misfeasance,feasance, misfeasance or non- or nonfeasance takes place,feasance independent of contract and not herein specially.....
Judgment:

P.V. Rajamannar, C.J.

1. This Civil Revision Petition raises a question of limitation which is not directly covered by authority. It arises out of a suit filed in the Court of Small Causes at Madras by the Corporation of Madras, the petitioner before me, against the respondent for the recovery of a sum of Rs. 248 representing the cost of a lamp-post which had been damaged by the defendant's lorry on the 4th November, 1950. The suit was filed on 1st August, 1953. One of the pleas raised by the defendant was that the suit was barred by limitation because it had not been brought within two years from the date on which the damage was caused, under Article 36 of the I Schedule to the Indian Limitation Act. It was contended on behalf of the Corporation that Article 36 did not apply but Article 49 was applicable to the case and the suit was in time, having been filed within three years of the date of the injury. The learned Judge of the Court of Small Causes who tried the suit held that Article 49 was applicable and therefore the suit was in time. He decreed the suit for Rs. 234-10-3 and proportionate costs. There was an application for a New Trial filed by the defendant. The New Trial application was allowed by the two learned Judges who heard it on the ground that the suit was barred by time. In the opinion of the learned Judges, Article 36 applied. In the result the suit was dismissed. Hence this Civil Revision Petition filed by the Corporation.

2. Article 36 runs thus:

For compensation for any rual Two years When the malfeasance, misfeasance,feasance, misfeasance or non- or nonfeasance takes place,feasance independent of contract and not herein specially provided for.

3. This article has generally been understood as the article dealing with suits for compensation for torts committed by the defendant. Undoubtedly the present suit is founded on a tort committed by the defendant, namely, causing damage to the plaintiff's property.

4. Article 49 is in these terms;

For other specific movable pro- Three years When the property is wrongfullyperty or for compensation for wrong- taken or injured, or when thefully taking or in juring or wrong- detainer's possession becomes un-fully detaining the same. lawful.

5. This article is in the nature of a residuary article and has to be read with Article 48 which provides for recovery of specific movable property lost or acquired by theft or dishonest misappropriation or conversion or for compensation for wrongfully taking or detaining the same. There can be no doubt that if Article 49 applied, Article 36 will not apply because it expressly excludes cases which have been specially provided for. The question for decision therefore is whether Article 49 has application to the present case. Having referred to decided cases dealing with Article 49 and after giving the matter my full consideration I have come to the conclusion that Article 49 has no application to the present case. The language of the first column of the article was discussed in a very early decision of the Bombay High Court in Essoo Bhayaji v. The Steamship 'Savitri' I.L.R.(1886) 11 Bom. 133. It was there held by Farran, J., that a suit to recover damages for the loss of a ship caused by collision at sea is an action, of, tort founded upon the negligence of the defendant or his servants in the management of his vessel and must be brought within two years under the provisions of Article 36. It was contended before the learned Judge that Article 49 would apply; but that contention was rejected. Construing the language of the first clause, the learned Judge thought that Article 49 applied only in respect of movable property which was in the possession of some third party. With respect I am in entire agreement with this construction of Article 49. In Sithambaram Chetty v. U. Kha Gyi 17 Ind.Cas. 906, a Division Bench of the Lower Burma Chief Court dissented from this view. But I am not impressed with the reasoning of the learned Judges in that case.

6. There are decisions which support the view that Article 36 applies to a case like the present. In Sivachidambara Mudaliar v. Kamatchi Ammal (1909) 19 M.L.J. 498 : I.L.R. Mad. 71, it was held that a suit for possession brought by the mortgagor for a damage which occurred to the mortgaged property in the possession of the mortgagee was held to be governed by this article. The tort consisted in the cutting away of certain trees on the mortgaged land. The learned Judges took the view that Article 36 is a general article relating to suits for compensation in tort. In Albert Bonnan v. Imperial Tobacco Co. (India), Ltd. 30 C.W.N. 465, a suit was brought for damage caused by the detention of certion goods belonging to the plaintiff with the customs authority on account of false representations made by the defendant. It was held that Article 36 applied. In Maya Ram v. Municipal Committee, Lahore A.I.R. 1929 Lah. 730, Article 36 was applied to a suit by a private owner against the Municipal Committee, Lahore, for recovery of damages for the loss sustained by the plaintiff by the breaking down of connection pipes, etc., attached to the subterranean system of water supply.

7. In my view the decision of the learned Judges who heard the New Trial application was right and the suit was barred. The Civil Revision Petition is therefore dismissed with costs.


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