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2021 DIGILAW 203 (TRI)

Kebal Kanti Nandi @ Kebal Nandi v. Md. Sona Mian

2021-11-11

S.G.CHATTOPADHYAY, S.TALAPATRA

body2021
JUDGMENT S. Talapatra, J. - Heard Mr. D.K. Biswas, learned senior counsel appearing for the appellant as well as Mr. H. Laskar, learned counsel appearing for the respondent. [2] The appellant instituted the suit for damages for realizing a sum of Rs.1,56,00,000/- from the defendant. It has been pleaded by the appellant that for repeated litigations on extremely untenable grounds, he has suffered harassment, loss of finance as well as damage for not having the custody of the land he was possessing for the order passed by the Executive Magistrate appointing the receiver in the proceeding under section 145 of the Cr.P.C. Even the plaintiff went in revision challenging the order of appointment of the receiver. But the revision court as well as this High Court, when approached, dismissed the plaintiff’s plea for vacating the said order of appointment of the receiver. The plaintiff has given the details of the litigations of various forms in the plaint. In Para 8 of the plaint, the plaintiff has asserted that this High Court passed an order on 20.11.2015 [delivered in W.P(C) No. 359 of 2015] directing the Executive Magistrate, Dharmanagar, North Tripura to restore the possession of the plaintiff over the land which is the suit land measuring 5.91 acre. [3] Case of the plaintiff is that the plaintiff has been mentally harassed since 10.11.1992 “till date”. The plaintiff has given the schedule of computed damages below Para 12 of the plaint and on the basis of such computation, the plaintiff has claimed the damage. It is pertinent to mention that to meet the requisite, the plaintiff has made the following statement in Para 13 of the plaint in respect of the cause of action: “That, the cause of action for the suit describedly arose as stated above which specifically arose on 10/11/1992, 12/11/1992 and all other subsequent date/dates and the cause of action is continuing one.” [4] The defendant, the respondent herein, questioned the maintainability of the suit, as according to him, under Article 58 of the Schedule appended to the Limitation Act, 1963, the suit ought to have been filed within 3 (three) years from the date of cause of action. Article 58 as it stands in the statute is reproduced below: Description of suit Period of limitation Time from which period begins to run 58. To obtain any other declaration. Three Years When the right to sue first accrues. Article 58 as it stands in the statute is reproduced below: Description of suit Period of limitation Time from which period begins to run 58. To obtain any other declaration. Three Years When the right to sue first accrues. [5] On such challenge on maintainability, it appears from the records, particularly from the order dated 05.04.2017 as delivered in T.S 16 of 2016, that a preliminary issue was framed to determine whether the suit is barred by law of limitation. The counsel for the parties were heard at length. By order dated 05.04.2017, the Civil Judge (Sr. Divn.), North Tripura, Dharmanagar has, inter alia, observed that the receiver took the possession on 10.06.1999 in terms of the order passed in Misc. Case No.268 of 1999. As stated, the said order was challenged in Criminal Revision Petition No.1(2) of 1999. But the said revision petition was dismissed by this Court by its order dated 10.06.1999. [6] It has been recorded that the plaintiff has stated that he has suffered damages to the extent of Rs.1,56,00,000/- in total and asked for realization of the said money by the process of the Court. [7] The Civil Judge has observed that there is no doubt that the suit of plaintiff is for recovery of compensation/damages on the plea of legal injury. Obviously, the suit is based on the principle of tortuous liability but on the other way this is a declaratory suit regarding the entitlement of plaintiff to get the damages. So, the suit of plaintiff attracts Article-58 of the Limitation Act which provides the period of limitation to institute a suit to obtain any other declaration not specified in Article-56, 57 in Part-II of the schedule of the Limitation Act. According to Article-58 of that Act, in order to obtain any other declaration like entitlement to claim damages on tortuous liability except the declaration for forgery of an instrument issued or registered or to obtain declaration of nullity of an adoption, the limitation is 3 years from the date when the right to sue first accrues. [8] The Civil Judge has further observed that in Para 13 of the plaint, the plaintiff has described the relevant dates of cause of action. [8] The Civil Judge has further observed that in Para 13 of the plaint, the plaintiff has described the relevant dates of cause of action. According to the Civil Judge, Article 58 will apply in the present context and hence, he has finally observed that no plea has been raised by the plaintiff that due to any fraudulent act or deeds of the defendant whatsoever, the plaintiff was compelled to lodge the suit and proceedings. In absence of such direct pleading to show any legal injury, in our view, there cannot be any cause of action to claim damages from the defendant. Only because of the fact that he had to contest several suits and proceedings instituted by plaintiff. So, it can be said on bare perusal of the averments in the plaint that the cause of action for the suit is neither constituted nor disclosed. In that light, it has been observed that the suit is barred by limitation in terms of the provisions of Article 58 of the schedule appended to the Limitation Act, 1963. Hence, the suit has been dismissed. The said order dated 05.04.2017 is under challenge in this appeal. [9] Mr. D.K. Biswas, learned senior counsel appearing for the appellant has submitted that the selective reading of the averments made under Para 13 has led the Court below to an erroneous finding on limitation. According to him, Article 58 has no manner of application in the present case. For example, the plaintiff [the appellant herein] has stated that for not having possession of the land for a long time, being under control of the receiver, the plaintiff has suffered loss. Damages therefrom cannot be covered by Article 58. For such relief, there is no reference in the schedule of the Limitation Act. Hence, the limitation for the suit can be had under Article 113 (Part-X) of the schedule of the Limitation Act, which provides that any suit for which no period of limitation is provided elsewhere in the schedule, the period of limitation will be three years from the date when the right to sue accrues. [10] Mr. Biswas, learned senior counsel has placed his reliance on a decision of the Apex Court in Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr. reported in (2004) 2 SCC 747 . [10] Mr. Biswas, learned senior counsel has placed his reliance on a decision of the Apex Court in Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr. reported in (2004) 2 SCC 747 . The Apex Court has made a comparison in that report in respect of implication of Article 58 and Article 113 and has observed that a distinction which is required to be noticed is that whereas in terms of Article 58, the period of three years is to be counted from the date when “the right to sue first accrues” but in terms of Article 113, the period of limitation would be counted from the date “when the right to sue accrues”. The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first. In the latter case, the period of limitation would be computed differently depending upon the last day when the cause of action arose. In view of the said enunciation, Mr. Biswas, learned senior counsel has submitted that the last day of the cause of action arose on 20.11.2015 when by the order of this Court the possession of the suit land was handed over to the petitioner. [11] Mr. H. Laskar, learned counsel appearing for the respondent has seriously opposed such proposition by contending that no such pleading is available in the plaint and accordingly the finding has been returned by the Civil Judge that there is no pleading in respect of the cause of action for other legal injury. He has urged this Court not to interfere with the finding of the Civil Judge. [12] True it is that the way the plaintiff has described the cause of action, it does not reflect the plea, as raised by Mr. Biswas, learned senior counsel. But, at the same time, the plaintiff has pleaded that the cause of action was still continuing, inasmuch as the suit was instituted on 15.09.2016 within 3 (three) years from 20.11.2015. But that exposition as made in Para 8 has escaped the notice of the Civil Judge. Biswas, learned senior counsel. But, at the same time, the plaintiff has pleaded that the cause of action was still continuing, inasmuch as the suit was instituted on 15.09.2016 within 3 (three) years from 20.11.2015. But that exposition as made in Para 8 has escaped the notice of the Civil Judge. He has guided his consideration by the first part of the averment made under Para 13 of the plaint. From the inclusive reading of the plea, read with reliefs sought, we are convinced that the way the preliminary issue on the limitation has been decided, it ought not have been decided in that manner. The averments of Para 8 is inalienable part of the plaint. Expression, however, is limited may not always be taken on the face of it. For purpose of substantial justice, it is the duty of the Court while deciding a preliminary issue to read the plaint as a whole. [13] In this case, we find that the Civil Judge has omitted to discharge that duty. For that reasons, we are inclined to interfere with the impugned order dated 05.04.2017 as delivered in T.S 16 of 2016. The said order deciding the preliminary issue on limitation stands set aside. [14] The suit is remanded to the trial court to proceed for adjudication after framing the issues on appreciation of rival pleadings. Hence, the appeal stands allowed. Decree be prepared accordingly. Records be sent down thereafter. [15] The Civil Judge is directed to issue notice by appointing a date for appearance of the parties, immediately after receipt of the records from this Court. [16] Before parting with the records, we observe as a matter of abundant caution that none of the observations made in this order will influence the final decision.