P L D 1969 Azad J & K 51 (PLP)

Issue No. I.‑As to the deficiency of the court‑fee paid on the plaint was disposed of vide order of this Court dated 12‑7‑1968. It was decided against defendant No.

1. Thereafter issue No. 2 was taken up and arguments of the learned counsel for the parties were heard on it. The objection of defendant No. 1 on the basis of which this issue has been framed was that the suit was barred by limitation because it had not been brought within two years from the date on which the damage was caused under Article 36 of Schedule I to the Limitation Act. The plaintiff met this objection by contending that Art. 36 did not apply to the facts of this case and that it was Art. 49 of the same Schedule which was applicable here and therefore the suit was in time having been filed within 3 years of the date of the accident. Mr. M. Y. Cheema on behalf of the plaintiff and Mr. S. Z. Choudhri on behalf of the defendant No. 1 addressed lengthy arguments in support of their respective contentions. The main contention of Mr. Cheema was that Art. 36 is a general article for torts based on personal injuries of tortious nature both to movable and immovable property whereas Article 49 is a special article which applies to cases of specific movable property wherein compensation for wrongfully taking of injury or wrongfully detaining that property is claimed by the plaintiff. According to the learned counsel in this case the plaintiff is claiming compensation for injury caused to his bus by wrongful act of the defendants and as such it was the special Article 4 P of the Indian Limitation Act which would apply here and have preference over the general Article

36. Mr. Sher Zaman argued that Article 49 was in the nature of a residuary article and has to be read with Article 48 which provides for recovery of specific movable property lost or acquired by theft or dishonest misappropriation or conversion or for compensation for wrongful taking or detaining the same. He, however, conceded that if Article 49 was applicable to this case Article 36 will not apply because it expressly excludes cases which have been specially provided for. He, however, contended that in the present case the property involved is a bus which had neither been lost nor acquired by theft or dishonest misappropriation or conversion by the defendants but it met with an accident as a result of which it was damaged occasioning a loss to the tune of Rs. 30,000 to the plaintiff as claimed by him. The very nature of the claim of the plaintiff and perusal of the concluding words of the first and third columns of Article 49 show that this Article has no application in the case of a defendant who never had possession of the property. The plaintiff's claim boils down to this that he be compensated for the loss caused to his bus by the improper performance of his duty by the driver of the Balle Dumper who is an employee of the Mangla Dam Contractors. This in other words would mean that he is asking for compensation for the misfeasance or tortious act of the driver and his employer and therefore the present case not being a case of specific movable property acquired by the defendant by wrongfully taking or injuring or detaining the same or for its compensation, it would fall within the purview of Article

36. In this connection he has referred to A I R 1958 Mad. 620, A I R 1960 Mad. 571, A I R 1958 Pat. 512 and P L D 1960 Dacca

321. Having referred to those cases dealing with Articles 36 and 49 and after giving the matter my full consideration I have come to the conclusion that Article 49 has no application to the present case. Article 36 reads as under: "For compensation for any malfeasance, misfeasance or non‑feasance independent of contract and not herein specially provided for two years when the malfeasance, misfeasance or non‑feasance takes place." It is thus apparent that the provisions of this Article would apply to those cases which deal with suits for compensation for tortious acts committed by the defendant. The present suit is also founded on a tortious act committed by the defendant. Article 49 is couched in these terms‑ "For other specific mov‑ Three years. When the property is able property, or for wrongfully taken or compensation for wrong‑ injured, or when the fully taking or injuring detainer's possession or wrongfully detaining becomes unlawful." the same. From its perusal it would appear that it is a residuary article and has to be read with Article 48 which provides for recovery of specific movable property lost or acquired by theft etc. and is in possession of the defendant. Surely that is not the case here. In all the cases referred to by the learned counsel for defendant No. I reference has been made to one of the early cases of Bombay High Court Essoo Bhayaji v. The Steamship Savitri (I L R 11 Bom. 133). In that case the law on the point has been laid down very clearly by the learned Judges. The facts of the case were that plaintiff's ship was lost at sea on the 5th January 1883, owing to a collision which took place on that day with steamship Savitri of the defendant. On the 7th January 1886, the plaintiff filed a suit to recover the sum of Rs. 5,500 which he alleged to be the value of the pattimar and a further sum of Rs. 200 belonging to him which was on board at the time of the wreck. It was held in that case that both the vessels were equally to blame for the collision and that the owner of each vessel was to bear half the loss as occasioned by the collision. The plaintiff, therefore, reduced his claim to half and the suit having been filed after two years from the date of the collision the question arose whether the suit was barred by limitation. It was contended on behalf of the plaintiff that the law allows him three years within which to bring his suit for a cause of action of that nature. The defendant contended that the plaintiff was bound to commence the suit within two years after the collision. It was held:‑ A suit to recover damages for the loss of a ship caused by collision at sea, is an action of tort founded upon the negligence of the defendant or his servants in the management of his vessel, and must be brought within two years under the provisions of Article 36 of Schedule I of the Limitation Act, XV of 1877. Article 49 of Schedule It of the Limitation Act, XV of 1877, applies only to suits in respect of property in the hands of some other person, and not to suits in respect of property in the plaintiff's own possession, and the injury to property there mentioned is limited to cases of injury to property while in the custody of some person other than the owner. In the present case the allegation made by the plaintiff is that the improper performance of his duty by the driver i.e. the driver of defendant No. 1 has resulted in damage to his bus. The allegation shows that what the plaintiff has alleged amounts to this that the driver of defendant No. 1 was indulging in rash and negligent driving at the time of the accident which resulted in pecuniary loss to the plaintiff. It is, therefore, the tortious act of the defendant for which the plaintiff is claiming compensation 9 and the suit consequently must have been brought within two years of the accident under the provisions of Article 36 of' Schedule I of the Limitation Act as held in I L R 11 Bom. 133.1 The learned Judges of the D. B. in P L I) 1960 Dacca 321 agreeing with this principle laid down that:‑ "Article 36, Schedule I of the Limitation Act, 1908 refers to actions founded on the commission of some act which is in itself unlawful, "malfeasance", or the improper performance of some lawful act, "misfeasance", or the omission of some act which a person is by law bound to do "non‑feasance". It is a general Article for suits for compensation for acts and omissions commonly known as torts, that is, wrongs independent of contract and which are not provided for by other Articles. Thus Article 36 refers to actions on torts or such wrongs as are distinguishable from breaches of contract. Article 49 of the Act applies only to suits in respect of property in the hands of some other person, and not to suits in respect of property in the plaintiff's own possession, and the injury to property there mentioned is limited to cases of injury to property while in the custody of some person other than the owner. Held, that a suit to recover damages for the loss of a ship caused by collision at sea is an action of tort founded upon the negligence of the defendant or his servants in the management of his vessel, and must be brought within two years under the provisions of Article 36 of the Limitation Act, 1908." The injury to the bus in this case was caused while it was in the possession of the plaintiff and not in that of the defendant. As such Article 49 cannot be attracted to the facts of the present case. The same view finds support from the decision in A I R 1958 Mad.

620. In that case a lamp belonging to the Corporation of Madras was damaged by the defendant's lorry on 4‑11‑1950 and the Corporation brought a suit for damages against the defendant on 1‑8‑1953. It was held that Article 49 has no application to the case and that that Article applied in respect of movable property which was in possession of some third party. The learned Chief Justice further held that Article 36 which has generally been understood as the Article dealing with suits for compensation for torts committed by the defendant applied to such cases and therefore the suit was barred by limitation. In A I R 1960 Mad. 571 a Single Judge after referring to a large number of authorities such as I L R 32 Cal. 129, 1 L R 19 Mad. 154, A I R 1926 Mad. 1155, A I R 1958 Mad. 620, A I R 1936 Pat. 362 held that a suit by State Electricity Board to recover a certain sum of money being the cost of a pole which had been broken by the defendant's lorry and the loss of revenue to the plaintiff' on account of interruption of electricity supply to the consumers is governed by Article 36, Limitation Act and should be instituted within two years from the date of misfeasance. In view of the above discussion I would hold that the present suit by Mujahid Abdur Rahman plaintiff is governed by Article 36 of the Limitation Act of 1908 and should have been instituted within two years of the date of accident which was 4‑10‑1964. 1 he suit as the plaint shows was brought on 3‑10‑67 i.e. nearly three years after the tortious act had taken place. As such it is definitely barred by limitation and is dismissed with costs. S. A. H. Suit dismissed.