P L D 1970 Lahore 298 (PLP)

"Whether the application is within time?"

3. The learned trial Court observed that under Order XXXIII, rule 5(d), C. P. C. it was necessary for the petitioner to show that he had a subsisting cause of action on the date when the application was made and if the claim appeared to be barred by limitation, the Court had the power to reject the application for permission to sue in forma pauperis. The learned Court was of the opinion that Art. 22 of the First Schedule to the Limitation Act governed the matter, which prescribed a period of one year for filing a suit for compensation for injury to person from the date when the injury is committed and there fore the claim was barred since the period of limitation of one year had expired and that this would be so whether the time was taken to begin running as from the date of accident (14‑1‑1966) or from the date of the medical report (4‑4‑66) declaring him disabled for life.

4. The following grounds were taken against the order, of the learned trial Court, in the memorandum of revision: "(a) That no doubt the injury was received by the petitioner on 14th of January 1966, but he continued to be in service of respondent till 15th of January 1967, up to which date the petitioner was paid his salary at half the rates. The service of the petitioner was terminated from 16th of January 1967, because of his being rendered unfit for service. The cause of action therefore accrued with effect from 16th of January 1967, and that being so, the suit was within time. (b) That where the employer keeps the employee in service till actually the period of limitation is expired the limitation, in such cases would start from the date of his release front service. No party can be allowed to play fraud with the other to take benefit of limitation. (c) That the petitioner in fact could prove these assertions. The dismissal of application on the ground of limitation is, unjustified."

5. Subsequently an application was moved on 20‑3‑64 to amend the revision petition by adding inter alia the following further grounds "(i) That the petitioner begs to invoke section 18 of the Limitation Act on the ground that the applicant was kept out by the deliberate fraud of the defendant/respondent, from the knowledge of his right to sue. The facts are that the plant in which the plaintiff/petitioner was working at the time of the accident was earlier destroyed by fire for which they made a claim against the Insurance Co. On the Surveyor's report to the effect that the entire plant had no more than scrap value, the Insurance Co. accepted the defendant/respondent claim for Rs. 16,18,

966. The defendant/respondent, however, decided to keep the damaged plant for which Rs. 1,18,966 were allowed to be deducted from the total claim, and, therefore, the Insurance Co. paid the defendant/respondent the balance of Rs. 15,00,000 only. This damaged plant which, in the opinion of the Surveyor, had no more than scrap value and which was retained by the defendant/respondent against a payment of only Rs. 1,18,966, was then fitted up after some minor repairs by the defendant/respondent, and was got going. Quite naturally, the Insurance Co. did not accept the risk of ensuring it afresh, and it hardly needs be added that this plant was totally unsafe for any human being to work in it. However, this fact which was fully known to the defendant/ respondent was not at all known to the plaintiff/petitioner. It will thus be seen that the accident took place entirely due to the culpable negligence of the defendant/respondent. However, this fact was deliberately concealed from the plaintiff/ petitioner, and it was only after the discovery of the evidence recorded in the Court of the learned S. D. M., Ferozewala, on 23‑5‑67 in proceedings against the defendant/respondent under section 133 of the Code of Criminal Procedure, that it came to the knowledge of the applicant that the said accident had taken place in the above‑noted circumstances and that he had a right to sue the defendant/respondent. It is clear that the applicant was kept out by the deliberate fraud of the defendant/ respondent from the knowledge of his right to sue and that being the case, it is humbly submitted that the limitation to sue would run from the date on which the applicant came to know of his right to sue the defendant/respondent, and there fore, plaintiff's application in forma pauperis was well within the limitation period. (ii) That the plaintiff/petitioner was kept in service by the respondent till 15‑1‑67, i.e, exactly for the period of limitation mentioned in Art. 22 of the Limitation Act, on which the respondent relies, and thereby the petitioner was deluded fraudulently into believing that he had no right to sue. There fore, in the humble submission of the petitioner, the limitation started running only from 15‑1‑67 and the application in forma pauperis was well within the limitation period.

6. I have heard learned counsel for the parties and Sheikh Ghias Muhammad, Advocate, who appeared on my request as amicus curiae to assist the Court in resolution of the questions arising in this case. I acknowledge with gratitude the assistance rendered by him.

7. The learned counsel for the respondent‑company, has submitted that while deciding this revision petition the Court cannot take into account facts which are not contained in the plaint. His submission is that the allegation that the petitioner was kept out of knowledge of his right to sue by the deliberate fraud of the respondent by being kept in service for his exactly one year after the accident i.e. until 15‑1‑67 and the fact that the condition of the plant was totally unsafe for any human, being to work therein and that this fact was fully known to the respondents are matters which were not stated in the plaint and cannot, therefore, be urged before me. Mr. Shahzad Jehangir, learned counsel for the petitioner, contended that it had been clearly stated in the plaint that the accident had taken place entirely due to the culpable negligence of the respondent. The learned amicus curiae was of the view that the finding of the learned trial Court that the period of limitation within which such a suit could be filed, namely, one year, prescribed by Art. 22, was erroneous because the said Article was not applicable to the circumstances of the present case. According to the learned Advocate the period of limitation in the circumstances of this case was governed by the provisions of Art. 36 of the Limitation and, therefore, the suit, was within time.

8. I am inclined to agree with the submission made by Mr. Ghias Muhammad. Article 22 of the Limitation Act deal with cases for compensation for any other injury to the person and prescribes the period of limitation of one year from the date when the injury is committed. In the context the word `committed' implies the commission of an overt act and would not cover a case of injury that has resulted on account o misfeasance i.e. the improper performance of a duty cast on a person by law. Thus if the serious injuries suffered by the petitioner are the consequence of culpable negligence and the failure of the respondent to perform its legal obligations to maintain their plants and equipment in a proper condition, the injury suffered by a person as a result of such negligence would fall in the category of cases visualised by the provisions of Art. 36 of the Limitation Act. According to this Article suits for compensation for any malfeasance, misfeasance or non feasance independent of contract and not specially provided for in the Act may be instituted within two years when the malfeas ance, misfeasance or nonfeasance takes place. The question arises as to when this took place. The provisions of section 24 of the Limitation Act are of assistance in resolving this issue. Section 24 lays down: In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results. The result, therefore, is that the period of limitation would be two years from the date when the injury actually resulted as a consequence of the alleged culpable negligence of the respondent.

9. The learned counsel for the respondent argued that the learned trial Court had correctly held that Art. 22 of the Limita tion Act, governed the matter. In support of his contention he referred me to two rulings reported as Arhat Misir v. Baldeo Ahir (5 I C 124) and Abdullah Muhammad Jabli v. Abdullah Mohamed Zulaikhi (A I R 1924 Bom. 290). In the first case the plaintiff was wantonly attacked by the defendant and, beaten and he claimed damages or com pensation for injure caused to his reputation and for mental pain arising out of an assault; while in the second case the plaintiff's case was that the defendant threw sulphuric acid in his face and thereby caused injury to him which ultimately resulted in the loss of his eyes. In both cases the injury was occasioned as a result of an overt act committed by the defendant. The present case is quite different. Here the injury has been suffered on account of an accident and the question is whether this accident had not occurred due to the malfeasance, misfeasance or nonfeasance of the respondent?

10. In any case the question of limitation was tied up with the merits of the suit and it is established law that the application to sue in forma pauperis is not to be rejected if the question of limitation is a complicated one. Even if the provisions of Art. 22 were to apply, the question whether the plaintiff could not avail of the provisions of section 18 of the Limitation Act would arise for consideration. The allegations in this respect doubtless are not so clearly spelled out in the plaint, as they have been put forth before me, but the plaint can always be amended at any stage, and the averments made before me can even now be added by amendment of the plaint. The order of the learned trial Court is, therefore, unsustainable in law.

11. The upshot is that the order of the learned trial Court dated 7‑6‑68 is hereby set aside. I find that the petitioner is in a pitiable condition and the delay in the suit proceedings is causing him the utmost torture and his suit should be decided expeditiously. I, therefore, direct the learned trial Court to decide the suit within three months from the receipt of the record, by fixing the matter for day to day hearing, if necessary. In case the matter cannot be decided within the time‑limit specified above, the learned trial Court will report to this Court intimating the reasons therefore. Costs of this petition will be the costs in the cause. K. B. A. Petition accepted.