Dhanusdhari Yadav vs Budhsai
2023 Latest Caselaw 997 Chatt

                                     1



                                                                    AFR
           HIGH COURT OF CHHATTISGARH, BILASPUR

                      First Appeal No. 322 of 2015
     • Dhanusdhari Yadav S/o Amritlal, Aged About 41 Years R/o
       Village Kurkel, P.S. Batauli, Civil And Revenue District Surguja,
       District Surguja, Chhattisgarh ..........Plaintiff
                                                           ---- Appellant
                                 Versus
     1. Budhsai S/o Bhole Uraon, Aged About 40 Years R/o Village
        Kurkel, P.S. Batauli, Civil And Revenue District Surguja, District
        Surguja, Chhattisgarh
     2. Sushma Uraon W/o Budhsai Uraon, Aged About 35 Years R/o
        Village Kurkel, P.S. Batauli, Civil And Revenue District Surguja,
        District Surguja, Chhattisgarh ...........Defendants
                                                      ---- Respondents

For Appellant : Ms. Priyanka Mehta, Advocate For Respondents : Mr. Neeraj Pradhan, Advocate

Hon'ble Justice Shri Goutam Bhaduri Hon'ble Justice Shri N.K. Chandravanshi Order On Board Per Goutam Bhaduri, J 16.02.2023

1. Heard.

2. Challenge in this appeal is to the order dated 06.8.2013

passed by Third Additional District Judge, Ambikapur, Surguja

whereby a suit seeking compensation for electrocution death of

a child was dismissed at the first date of hearing.

3. A case was filed by one Dhanushdhari Yadav against the

respondents that on 07.7.2010, his only son namely Ashosk

Yadav, who was aged about 7 years, died of electrocution. It

was pleaded that on 07.7.2010 he went for study to school at

Kudkel and during recess while playing he went to answer the

call of nature to the land of the respondents wherein an open

live wire was on the field. He came into contact with such wire,

got electric shock, resulting into his death. It was stated that the

respondent has acted gross negligently which caused death of

son of the appellant, therefore, suit for compensation was filed.

The suit was filed on 29.01.2013 with a pleading that the suit

could not be filed within one year as such, a separate

application under Section 14 of the Limitation Act 1963 is

attached to condone the delay. Along with the plaint, an

application under Section 33 of the CPC was also filed to sue

as an indigent person. The learned trial Court, before the case

was registered as a civil suit, dismissed it by order dated

06.8.2013 holding that the suit is barred by time.

4. Learned counsel for the appellant would submit that

without framing any issues or going into the facts, the trial Court

misdirected itself to dismiss the suit without even quoting the

facts that within how much period of limitation the suit was

required to be filed. She would further submit that it is a

tortuous liability, as such, Article 72 of the Limitation Act, 1963

(for short 'the Act 1963') would not apply rather Article 113 of

the Act 1963 would apply wherein, three years time is envisaged

when the right to sue accrues. She further submits that the right

to sue accrued with death on 07.7.2010, and the suit having

been filed on 29.01.2013, was very much within the limitation.

She placed reliance in matter of Rupabai and Ors. Vs.

Sushilabai and Ors.,1998 (1) JLJ 305. Learned counsel would

further submit that this kind of issues cannot be decided at the

threshold by dismissal of the appeal and reference is made to

the matter Satti Paradesi Samadhi and Pillayar Temple vs. M.

Sankuntala (Dead) Throu. Ledgal Representatives and Ors.,

(2015) 5 SCC 674 . Further she would submit that any wrong

pleading made by the counsel would not affect the right of the

parties as law will have its own force and reference is made to

Himalayan Coop. Group Housing Society vs. Balwan Singh

and Ors., (2015) 7 SCC 373. The learned counsel submits that

therefore, the case is required to be remanded for adjudication

afresh and the appellant may also be given liberty to add

necessary parties, if so advised.

5. Per contra, learned counsel for the respondents opposed

the submissions and would submit that the impugned order is

well merited. He would submit that after the death of his son,

the appellant was dormant and after lapse of sufficient time, the

suit was filed, therefore, the appeal deserves to be dismissed.

6. We have heard learned counsel for the parties and

perused the record.

7. Perusal of the plaint allegation would show that death of

son of the appellant occurred on 07.07.2010 due of

electrocution. The negligence was attributed to the defendants

that on their field live electric wire was lying, son of the appellant

came into contact with the wire and was electrocuted. The

plaint allegation would further show that suit for compensation of

Rs.33 lakh was filed on 29.01.2013. In the judgment rendered

in the similar facts in the case of Rupabai (Supra), the Supreme

Court observed that when the alleged act of passing electric

current in the wire fencing cannot be considered to be an act

done in pursuance of any enactment in force at the time of the

incident and Article 72 of the Act 1963 shall apply in cases

where the compensation is claimed for doing or for omitting to

do any act alleged to be in pursuance of any enactment in force.

In view of that, applicability of Article 72 of the Act 1963 was

ruled out. At para 5, the Court held has under:-

"5. I have considered the submissions of the learned counsel for appellants and perused the record, as also the Impugned Order. On perusal, it is found that the application cum suit under the provisions of Order 33 CPC has been filed on behalf of the appellant-plaintiffs, claiming damages for the death of deceased Gajrajsingh as a result of the wrongful act of the defendant under Law of Torts. The alleged act of passing electric current in the wire fencing of the disputed field cannot be considered to be an act done in pursuance of any enactment in force at the time of the incident. Article 72 of the Limitation Act shall apply in cases where the compensation is claimed for doing or for omitting to do an act alleged to be in pursuance of any enactment in force. In view of the facts on hand as stated above, the act of the respondent-defendant cannot be held to be an act done in pursuance of any enactment in force at the time of the incident. As such, the trial Court has committed an error in applying Article 72 of the Limitation Act, holding the application cum suit field on behalf of the appellants to be barred by the limitation."

8. Perusal of the order would show that it is a cryptic order.

No reference has been made as to how the suit filed by the

appellant was barred by time. The Court misdirected itself on

on the basis of the pleadings made by the appellant wherein at

para 6 it is stated that the suit could not be filed within one year

and separate application under Section 14 of the Limitation Act

was filed to condone the delay. The Supreme Court in the

matter of Himalayan Coop. (Supra), held that generally,

admission of facts made by counsel are binding upon their

principals as long as they are unequivocal, however, if the doubt

exists as to the purported admission, the Court should be wary

to accept such admission unless and until the counsel or

advocate is authorised by his principal to make such admission.

Consequently the client would not be bound by statement of the

admission which he or his lawyer was not authorised to make.

9. In the instant case the background would show that the

appellant comes from the rural background, death of his son

caused due to electrocution on 07.7.2010, obviously therefore

what would be the intricacies of the law of limitation and

applicability of law to condone the delay if any, it is not expected

that a litigant would know. Prima facie it appears that the

counsel travelled on a misconception of law and made certain

statement in the plaint. Obviously those statements which goes

against law, the appellant cannot be held bound to it. Even

otherwise, the submissions made which is per inquirium by the

counsel would not be binding on the client. For the sake of

brevity, para 32 of the said judgment is quoted as under:-

"32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has not implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professions responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyer can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights."

10. Further more, reading of the order would show that

without any reference of preliminary issue or anything of like

nature, the suit was held to be barred by limitation. The

Supreme Court has held that a plea of limitation cannot be

decided as an abstract principle of law divorced from the facts

as in every case starting point of limitation has to be ascertained

which is entirely a question of fact. This preposition laid down

by the Supreme Court in the matter of Ramesh B. Desai v.

Bipin Vadilal Mehta, (2006) 5 SCC 638 was affirmed

subsequently by judgment passed in Satti Paradesi Samadhi

(Supra) and held that a plea of limitation is a mixed question of

facts and law. On a plain consideration of language employed in

sub-rule (2) of Order 14 it can be stated with certitude that when

an issue requires an inquiry into facts it cannot be tried as a

preliminary issue. For the sake of brevity para 14 of the

judgment is quoted hereunder:-

"14. In Ramesh B. Desai v. Bipin Vadilal Mehta [(2006) 5 SCC 638] , while dealing with the issue of limitation, the Court opined that: (SCC p. 652, para 19)

"19. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact."

The Court further proceeded to state that a plea of limitation is a mixed question of fact and law. On a plain consideration of the language employed in sub-rule (2) of Order 14 it can be stated with certitude that when an issue requires an inquiry into facts it cannot be tried as a preliminary issue. In the said judgment the Court opined as follows: (Ramesh B. Desai case [(2006) 5 SCC 638] , SCC p. 650, para 13)

"13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to

(a) the jurisdiction of the court, or ( b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon [AIR

1964 SC 497] and it was held as under: (AIR pp. 502- 03, para 18 : SCR p. 421)

'18. ... Under Order 14 Rule 2 of the Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit.'

Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the abovequoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue."

11. Primarily after going though the plaint allegation, it shows

that the suit was filed on 29.01.2013 for a death by electrocution

on 07.7.2010, meaning thereby, within three years of cause of

action accrued, the suit was filed. Consequently, it would be

governed by Article 113 of the Limitation Act 1963 which

envisages that any suit for which no period of limitation is

prescribed in the Schedule, the limitation period would be three

years when the right to sue accrues.

12. Accordingly, we set aside the order of learned trial Judge

and remand the case for fresh adjudication before the learned

District Judge, Ambikapur, Surguja. The parties shall be at

liberty to amend their pleading as also for addition of the parties,

if so advised.

13. The parties shall appear before the District Judge,

Ambikapur on 29.3.2023. The District Judge shall make all

efforts to dispose of the case on merits after notice to all the

parties, as early as possible.

The appeal is allowed.

                    Sd/-                                     Sd/-

             (Goutam Bhaduri)                        (NK Chandravanshi)

                 Judge                                        Judge




Bini