* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) NO.2082/2008
Date of Decision : 20.09.2010
TILAK RAJ SINGH ...... Plaintiff
Through: Mr.Manoj, Advocate
Versus
UNION OF INDIA ...... Defendant
Through: Mr.Sanjay Kumar Pathak,
Advocate.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J.
IA No. 746/2010 (u/S 14 of the Limitation Act)
1. This order shall dispose of IA No.746/2010.
2. Briefly stated that facts of the case are that the plaintiff had filed a suit for recovery of Rs.32,53,900/- in the High Court on 2.9.2008.
3. It is alleged in the plaint that the plaintiff had boarded a train on 20.10.87 from Meerut for going to Ludhiana. When the train reached Muzaffarnagar, the train did not halt on the platform and 5 or 6 boggies were not able to touch the platform and incidentally the plaintiff was in one of such boggies which was without any platform. It is alleged that there was inadequate lighting around the compartment. The CS(OS) No.2082/2008 Page 1 of 12 plaintiff tried to disembark from the boggie and suddenly the train started without giving any indication. The plaintiff tried to board the train once again however, in the process, the plaintiff fell down and unfortunately got entangled between the wheels of the train and as a consequence of this, he suffered grievous injuries resulting in amputation of his leg. It is alleged that the plaintiff was not provided first-aid and he was admitted to Muzaffarnagar hospital. Thereafter, he was shifted to Safdarjang Hospital where he was operated thrice. The plaintiff on account of surgery which was done at Safdarjang had to get of his leg amputated which resulted in his confinement to his house for a very long time. The plaintiff sent a notice under Section 80 CPC to the General Manager (Northern Railways) claiming damages whereupon the President of India sanctioned a sum of Rs.5,000/- as ex gratia. A condition that the plaintiff will not claim any further amount from the Railways was being imposed, the plaintiff did not accept the said amount and chose to file the suit on 3.9.1990 before the Civil Court, Meerut claiming damages from the defendant.
4. The defendant had taken various objections including the objection of jurisdiction and maintainability of the suit in the Civil Court. The said suit was pending in the Civil Court for almost 12 years. The suit was rejected by the Civil Court vide order dated 14.12.2002 on the ground that it did not have jurisdiction. Thereafter, the plaintiff filed an application CS(OS) No.2082/2008 Page 2 of 12 for claiming compensation before the Railway Claims Tribunal, Ghaziabad on 3.8.2005. The said claim application of the plaintiff was also dismissed on 10.7.2008 with the observation that the case was triable by a competent Civil Court. The plaintiff requested that the case be transferred to the learned District Judge, Meerut. However, the said request was turned down by the Railway Claims Tribunal vide order dated 4.7.2008.
5. It is after declining to entertain the application by the Railway Claims Tribunal that the plaintiff has filed the present suit in Delhi on 29.9.2008 claiming damages.
6. The plaintiff along with the suit has filed an application under Section 14 of the Limitation Act claiming that the time which was spent by the plaintiff in various forums like Civil Court or by the Railway Claims Tribunal where the suit was not entertained. It is alleged that the same was done under a bonafide mistake of the plaintiff and therefore, the time spent by the plaintiff before the said forums if excluded, the suit of the plaintiff is within the period of limitation.
7. The defendant filed his written statement. It is not disputed by the defendant that the alleged accident took place on 20.10.87 at Muzaffarnagar Railway station in which the defendant sustained injuries on his leg.
8. The present suit is stated to have been filed on 29.9.2008 that is after expiry of almost 21 years from the date of alleged CS(OS) No.2082/2008 Page 3 of 12 accident and therefore, the defendants have raised the plea of suit being barred by limitation. It is stated by the defendant that as the present suit is a suit for recovery of money, therefore, it ought to have been filed within 3 years while as the suit is hopelessly barred by limitation. So far as the time which has been spent by the plaintiff in different forums is concerned, it is stated by the defendant that the suit which has been filed before Meerut Civil Court was done on 3.9.1990.
9. The defendant had filed the written statement in the said suit raising objections both on the question of jurisdiction as well as the maintainability of the suit in the Civil Court. It is stated that despite the objection having been taken by the defendant, the plaintiff continued with his suit and therefore, it could not be said that the suit was being continued in good faith. The suit was rejected on 14.1.2002 when the plaint was returned to him for presentation to the competent Court. It is further stated that after the plaint being returned to the plaintiff to be filed in appropriate Civil Court, the plaintiff knowingly chose to file the claim application before the Railway Claims Tribunal, Ghaziabad on 3.8.2005. This claim application was also filed after expiry of 3 years from the date of return of the plaint by the Civil Court. It is alleged that the continuance of the claim application in Ghaziabad despite the objection having been taken by the defendant, the plaintiff ought to have filed the suit in the Civil Court which he did not CS(OS) No.2082/2008 Page 4 of 12 do. Ultimately it resulted in rejection of the claim of the plaintiff by the Railway Claims Tribunal, Ghaziabad on 10.7.2008.
10. It is alleged that the plaintiff continued to persist with his claim and requested the Railway Claims Tribunal that it ought to transfer his claim before the learned District Judge, Meerut which request was also rejected by the Railway Claims Tribunal. It is only after spending so much time both in the Civil Court and in the Railway Claims Tribunal despite persistent objection having been taken by the answering defendant, the plaintiff chose to file the present suit for recovery, which by no stretch of imagination can be said to be filed after pursuing the remedy before a forum which, for lack of jurisdiction, could not give the relief claimed for. Accordingly, the plaintiff is liable to be rejected as barred by law under Order 7 Rule 11 (d) CPC.
11. I have heard the learned counsel for the parties. I have also gone through the record.
12. The sole question to be decided in the present case is as to whether the suit which has been filed after expiry of 21 years can be said to be filed within limitation and whether the period which has been spent by the plaintiff in prosecuting his claim before the learned Civil Court, Meerut as well as the Railway Claims Tribunal in Ghaziabad can be said to be spent by him bona fide in prosecuting his remedy before a wrong forum and thus whether the plaintiff is entitled to be given CS(OS) No.2082/2008 Page 5 of 12 the benefit of Section 14 of the Limitation act. It may be pertinent here to reproduce Section 14 of the Limitation Act, which reads as under:-
"14. Exclusion of time of proceeding bona fide in Court without jurisdiction.--
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause or a like nature.
13. A perusal of clause (1) of Section 14 of the Limitation Act would clearly shows that the period of time spent by the plaintiff in prosecuting another civil proceeding would be excluded provided the plaintiff had done the same with due diligence and prosecuted the said matter in good faith. In order to contend that the plaintiff had suffered an amputation CS(OS) No.2082/2008 Page 6 of 12 of leg on account of falling from moving train when it suddenly started without giving any indication. It is also stated that the plaintiff was a bona fide passenger in the said train and since the plaintiff had suffered a grievous injury, therefore, he is covered by various provisions of the Railway Act, 1989 which would entitle him to compensation. Section 14 of the Limitation Act has been subject matter of various judicial pronouncements by the Supreme Court from time to time. The plaintiff in support of his contention has relied upon a case titled Union of India Vs. Prabhakaran Vijaya Kumar & Ors. (2008) 9 SCC 527, wherein there was a somewhat similar situation where a lady who was trying to enter a train fell down on the railway track and was run over by the train. Consequently, she died. Her legal representatives filed a claim petition before the Railway Claims Tribunal. The evidence of one of the prosecution witnesses was disbelieved by the Tribunal on the assumption that if he had been present on the spot he would have helped the station Master in removing the dead body from the railway track. It was observed that moreover, the police would have recorded his statement. However, the evidence of the defence witness (the Station Master) corroborated the evidence of the said prosecuting witness. The Station Master stated that the deceased had attempted to board the train and fell down from the running train. The Tribunal held that it was not an 'untoward incident' within the meaning of the said expression under Section 123(c) of the Railways Act, CS(OS) No.2082/2008 Page 7 of 12 1989 and the same was not an accidental falling of a passenger from a train carrying passengers. However, the High Court held that the case came within the expression 'accidental falling of a passenger from a train carrying passengers' which was an 'untoward incident'. Therefore, the High Court awarded a compensation of Rs.2 lakhs with interest @ 12% from the date of the petition till the date of payment.
14. The Railways feeling aggrieved by the said order, preferred an SLP before the Apex Court. The Supreme Court held that it did not legally make any difference whether the deceased was actually inside the train or whether she was only trying to get into the train when she fell down. In either case, it amounted to an 'accidental falling of a passenger from a train carrying passengers' and therefore, it was an 'untoward incident' as defined in Section 123(c) of the Railways Act. Consequently, the Railways were fastened with the liability providing compensation to the plaintiff.
15. I have gone through the said authority. I do not feel that the judgment which has been relied upon by the plaintiff is of any help to the plaintiff. The issue which has been decided in the judgment cited by the learned counsel for the plaintiff is as to the liability of the Railways by interpreting the word 'whether the accidental falling of a passenger from a train carrying passengers in the said case where the lady was trying to board the train on the railway platform can be said to CS(OS) No.2082/2008 Page 8 of 12 constitute an accidental incident or not. It was held what constitutes an accidental incident and the fact whether the passenger was inside or outside the train would make little difference and it was under that context the judgment of the High Court had granting compensation to the lady.
16. As against this, in the present case, the question is not as to whether the injuries suffered by the present petition were accidental or not. The issue involved in the present case is as to whether the period which has been spent by the plaintiff before the Civil Court Meerut and the Railway Claims Tribunal as a consequence of which the present suit has been filed after lapse of almost 21 years could not said to be bona fide spent by the plaintiff in a forum which on account of defect of jurisdiction had refused to give relief to the plaintiff. Therefore, the authority which has been cited by the learned counsel for the plaintiff does not apply to the facts of the present case.
17. The learned counsel for the plaintiff has also placed reliance in case titled K.L.Juneja Vs. Bawa Dan Singh (1997) 40 DRJ
684. In this case, the question of Article 113 of the Limitation Act was considered for interpretation. In this particular case incident occurred on 16.12.89 and the suit was filed on 6.9.94. The defendant had taken the plea that computation of period of limitation has to be done from the date of accident.
CS(OS) No.2082/2008 Page 9 of 12
18. This plea of the defendant was not accepted and the learned Single Judge had held that the starting point of computation of period of limitation in the present case would be the date when the extent of actual damages has arisen and it became known to the plaintiff as to what is the extent of disability suffered by him and the consequent.
19. Coming back to the facts of present case, there is no such proposition involved as to what is the date from which the period of limitation is to be reckoned. Admittedly in our case, the plaintiff after the accident has chosen to file the suit in Court of Civil Judge before expiry of period of 3 years of limitation from the date of accident itself. Therefore, the original suit which was filed by the plaintiff within the stipulated period of limitation of three years was well within time. The only question which remains to be considered by this Court is as to whether the continuance and persistence of the plaintiff to continue with the said suit despite objection having been raised by the defendant that the said Civil Court does not have any jurisdiction could be a ground entitling the plaintiff to the benefit of Section 14 of the Limitation Act. For this purpose, he has to show due diligence and good faith. In the absence of both these things the suit would be barred by limitation. It is in this light that the objection which is raised by the defendant to the maintainability of the suit becomes important. The defendant had raised the objection with regard to the jurisdiction of the civil court. Having been CS(OS) No.2082/2008 Page 10 of 12 faced by such objection the plaintiff ought to have shown what action was taken by him to confirm his view as to whether the court had the jurisdiction. The suit was rejected by the Civil Court Meerut on 2.10.2002 by returning the plaint to the plaintiff and observing that it should be filed in appropriate Civil Court. Despite this observation, the plaintiff did not chose to file the suit in Civil Court but preferred to file his claim in the Railway Claims Tribunal. It is this persistence on the part of the plaintiff to continue with his remedy in a forum despite objection having been raised by the defendant which clearly shows that there was lack of due diligence on the part of the plaintiff and consequently lack of good faith in prosecuting the remedy in appropriate forum. The word 'good faith' in Section 2(h) of the Limitation Act has been defined as a thing which is done with due care and attention. Since in the instant case, the plaintiff did not show due diligence or due care and attention of going before an appropriate forum, that is Civil Court, which has been done now after his complaint/application having been rejected by the Railway Claims Tribunal, it cannot be said to entitle the plaintiff to exclusion of time spent by him before two forums, that is Civil Court as well as Railway Claims Tribunal.
20. It may be pertinent here to refer to the judgment of Apex Court in case titled Rabindra Nath Samuel Dawson Vs. Sivakasi & Ors. (1973) 3 SCC 381 wherein, it has been held that Section 14 read with Section 2(7) of the Limitation Act CS(OS) No.2082/2008 Page 11 of 12 does not confer the benefit of the said Section to a party who persists in his earlier suit and appeal despite repeated objections by the opposite party. This is precisely what has been done in the case in hand.
21. For the reasons mentioned above, I am of the considered opinion that as the plaintiff had persisted his petition before Railway Claims Tribunal despite the objection having been raised by the defendant initially before the Civil Court, Meerut that not only the said Civil Court does not have the jurisdiction but also the fact that the Railway Claims Tribunal also does not have the jurisdiction and yet the plaintiff persisted with both the suit and the claim before the Railway Claims Tribunal. I do not feel that it will entitle to the plaintiff to benefit of Section 14 of the Limitation Act so as to exclude the time spent by him in the said two forums as it clearly shows that there was 'lack of due care and attention' as well as lack of 'good faith' and accordingly, the suit of the plaintiff is hopelessly barred by time as the time spent by him is not excluded as the suit has been filed after 21 years from the date of accident.
22. Accordingly, the application is dismissed and the suit is held to be barred by limitation and accordingly, the same is rejected under Order VII Rule 11 (d) CPC. Parties to bear their own costs.
V.K. SHALI, J.
September 20, 2010/RN CS(OS) No.2082/2008 Page 12 of 12