Tilak Raj Singh vs Union Of India
2010 Latest Caselaw 4401 Del

*             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

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

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

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

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

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

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,

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

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.

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

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

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