Chief Executive Officer Zp Akola vs Mangalchand Ramkrishna Dhole ...
2017 Latest Caselaw 914 Bom

  sa246.04.J.odt                                                                                                    1/3



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR

                            SECOND APPEAL NO.246 OF 2004

            Chief Executive Officer,
            Zilla Parishad, Akola for
            and on behalf of Zilla
            Parishad, Akola.                                       ....... APPELLANT

                                             ...V E R S U S...

          Mangalchand Ramkrishna Dhole
          a/a 36 years, Occ: Business,
          R/o Malegaon, Tq. Malegaon,
          Dist. Akola.                              ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Mrs. I.L. Bodade, Advocate with Shri G.G. Mishra, Advocate 
          for Appellant.
          None for Respondent.
 -------------------------------------------------------------------------------------------

                       CORAM:  R.K. DESHPANDE, J. 

                                      st    MARCH, 2017.
                       DATE:      21

 ORAL JUDGMENT



 1]                    In Special Civil Suit No.12 of 1992 claiming damages

for the loss suffered on account of failure of the

appellant/defendant to submit the report to the Deputy Director

of Education for grant of permission to open Typing Institute.

The Trial Court passed a decree on 14.09.1992 against the

defendant to pay damages of Rs.1,00,000/- along with future

interest at the rate of 12% per annum w.e.f. the date of suit till its

sa246.04.J.odt 2/3

realization. The lower Appellate Court has dismissed Regular Civil

Appeal No.158 of 2000 on 29.11.2003. Hence, the original

defendant is before this Court in this second appeal.

2] On 21.04.2006 this Court framed the substantial

question of law as under:

Question whether the suit for damages filed in the year 1992 by the present respondent claiming damages from 1986 onwards till 1992 can be treated as one within limitation, shall be the question of law in the Second Appeal. Hence Admit. Advocate Choudhari, waives service for respondent.

3] On the application filed by the respondent/plaintiff

for grant of permission to open Typing Institute, the Competent

Authority, which is the Deputy Director of Education, passed an

order dated 29.11.1986, directing the Education Officer, Zilla

Parishad, Akola to conduct the inspection and submit the report.

The inspection was conducted on 13.12.1986, but the report was

not submitted. Consequently, on 20.01.1992 a notice was served

by the plaintiff upon the defendant and the suit for damages was

filed on 21.03.1992. The appellant/defendant was proceeded

ex-parte before the Trial Court and the appeal filed before the

sa246.04.J.odt 3/3

lower Appellate Court challenging the decree was dismissed.

4] Section 22 of the Limitation Act, 1963 runs as under:

22. Continuing breaches and torts.-- In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.

The present case, is the case of the continuing torts and though

the Education Officer failed to submit the report in the year 1986,

which continued to cause damage to the respondent/plaintiff.

It was continuing cause of action in respect of which notice was

issued on 20.01.1992 and the suit was filed on 21.03.1992. Even if

Article 113 of the Limitation Act is considered, the right to sue

continues to accrue the plaintiff. The suit filed on 21.03.1992,

cannot be said to be barred by the law of limitation.

The substantial question of law is answered accordingly.

5] The second appeal is dismissed. No order as to costs.

JUDGE NSN