Bombay High Court
Dr Satish Laxminarayan Rathi vs The State Of Mah & 2 Others on 6 June, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
sa497.03.odt 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 497 OF 2003
APPELLANT: Dr. Satish Laxminarayan Rathi, aged
adult, Occupation - Medical Practitioner
and agriculturist, resident of Akola, Tq
and Distt. Akola (Original Plaintiff)
-VERSUS-
RESPONDENTS: 1. The State of Maharashtra Through
Collector, Akola.
2. The Executive Engineer, Irrigation
Division, (Katepurna Project), Akola.
3. The Assistant Engineer, Irrigation Sub
Division, Katepurna Project, Borgaon
Manju Tq. And distt. Akola (Ori.
Defendants).
Shri S. M. Agrawal, Advocate for the appellant.
Shri K. Lule, Assistant Government Pleader for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: 06-06-2018.
ORAL JUDGMENT :
1. The appellant is the original plaintiff who has filed this appeal under Section 100 of the Code of Civil Procedure Code, ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:35:25 ::: sa497.03.odt 2/10 1908, as he is aggrieved by the judgment of the first appellate Court in Regular Civil Appeal No.213/1999 whereby the said appeal has been allowed and the suit filed by the appellant for recovery of an amount of Rs.59,350/- on account of loss caused has been dismissed.
2. The relevant facts are that according to the plaintiff he is the owner of agricultural land bearing Survey No.113/1 admeasuring about 20 acres and 15 Gunthas. The plaintiff used to get water for irrigation of his crops from "Khadka Minor Canal". According to the plaintiff, the respondents used to supply water to his field as per the prescribed schedule. The water used to be supplied as per demand on the basis of which crops were sown by the plaintiffs. In October 1992 the plaintiff had made an application for supply of water from the second week of November, 1992 as he intended to sow gram crop. However, despite repeated requests the water was not supplied as demanded due to which the plaintiff was required to take sunflower crop instead of gram crop. This according to the plaintiff caused a loss to him to the extent of Rs.40,500/-. The plaintiff therefore issued a notice under Section 80 of the Code on 8-4-1996 and filed suit for recovery of a total amount of Rs. 59,350/-. According to the plaintiff, the damages were ascertained on 29-4-1993 and hence, ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:35:25 ::: sa497.03.odt 3/10 the suit was filed within limitation.
3. In the written statement at Exhibit-14, the claim as made was opposed. It was pleaded that the plaintiff had filed a complaint before the District Consumer Forum under provisions of the Consumer Protection Act, 1986. Said claim was however rejected and hence an appeal was filed before the State Commission. That appeal was withdrawn and the suit came to be filed which was therefore barred by principles of res judicata. It was further pleaded that the suit was barred by limitation. There was no negligence on the part of the defendants in supplying water to the plaintiff and therefore, the defendants were not responsible for any loss as alleged to have been caused.
4. The parties led evidence before the trial Court. After considering that evidence, the trial Court recorded a finding that the suit was filed within limitation. It was further held that the plaintiff had proved that he had suffered loss to the extent of Rs.33,120/- and the suit was accordingly decreed to that extent. Being aggrieved the defendants filed an appeal. The appellate Court came to the conclusion that the suit was barred by limitation in view of the provisions of Article 72 of the Limitation Act, 1963 (for short, the Act of 1963). On that basis the appeal was allowed and the suit came to be dismissed. Being aggrieved the present ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:35:25 ::: sa497.03.odt 4/10 appeal has been filed.
5. While admitting the appeal the following substantial questions of law were framed:
(1) Whether the lower appellate Court was right in holding that the suit of the appellant was barred by limitation? (2) Whether the lower appellate Court should have held that the suit was within limitation in view of the decision of the Supreme Court in State of Punjab ...Versus... M/s Modern Cultivators reported in AIR 1965 SC 17?
6. Shri S. M. Agrawal, learned Counsel for the appellant - plaintiff submitted that the appellate Court committed an error in holding that the suit was barred by limitation. According to him, the provisions of Article 72 of the Act of 1963 were not applicable and that the suit was filed within limitation as prescribed by Article 113 of the Act of 1963. In fact, the plea of bar of limitation was not specifically raised by the defendants in the memorandum of appeal. The appellate Court on its own found the suit to be barred by limitation which conclusion was arrived at without grant of proper opportunity to the plaintiff. It was submitted that the plaintiff had not relied upon the provisions of the Maharashtra Irrigation Act, 1976 (for short, the Act of 1976) for claiming compensation. On that count the provisions of Article 72 were not ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:35:25 ::: sa497.03.odt 5/10 attracted. Placing reliance on the decision in State of Punjab v. M/s. Modern Cultivators AIR 1965 SC 17, Mahomad Saddat Ali Khan v. Administrator, Corporation of City of Lahore AIR 1945 Lahore 324 and State of A.P. Vs. Challa Ramkrishna Reddy and others (2000) 5 SCC 712, it was submitted that the suit as filed was within limitation. It was then submitted that the proceedings before the Consumer Forum had been withdrawn after seeking liberty and hence if that time was excluded the suit was filed within limitation. It was thus submitted that the judgment of the appellate Court was liable to be set aside.
7. Shri K. Lule, learned Assistant Government Pleader for the respondents supported the impugned judgment. According to him, as per the plaint averments it was the case of the plaintiff that damage was caused due to the inaction on the part of the defendants. The appellate Court rightly applied the provisions of Article 72 of the Act of 1963 while holding that the suit was barred by limitation. The suit having been filed beyond the period of one year, it was rightly dismissed by the appellate Court. It was submitted that Article 113 of the Act of 1963 would not apply to the case in hand and hence no interference was called for with the judgment of the appellate Court.
8. I have heard the learned Counsel for the parties at ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:35:25 ::: sa497.03.odt 6/10 length and with their assistance, I have also gone through the records of the case. As per averments in the plaint, it is the case of the plaintiff that the land owned by him was fertile and he was taking the crops since the year 1972 by drawing water from the Canal. In October, 1992 the plaintiff had made a request to the defendant Nos.2 and 3 to supply water to his field but despite that the water was not supplied. The plaintiff was therefore compelled to take sunflower crop and this caused loss to him. It is alleged by the plaintiff that such loss was caused on account of the negligence on the part of the defendant No.3 and failure on the part of the defendant Nos.1 and 2 in taking necessary steps in that regard. In the plaint it is not the case pleaded that the defendants failed to comply with the provisions of the Act of 1976 and therefore loss was caused to the plaintiff. The only case pleaded is with regard to negligence on the part of the defendants in the matter of supply of water. Similarly, in the written statement the defendants have referred to the provisions of Section 16(d) of the Act of 1976 to urge that the plaintiff is not entitled for any damages.
9. The trial Court has recorded a specific finding in paragraphs 21 to 23 of its judgment that the claim of the plaintiff was not under Section 75 of the Act of 1976 and therefore the provisions of Section 76 of that Act were not attracted. It is on this ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:35:25 ::: sa497.03.odt 7/10 basis that the trial Court proceeded to conclude that the suit was within limitation as per Article 113 of the Act of 1963. The appellate Court however found that the defendants were under an obligation to act as per the provisions of the Act of 1976 and it therefore proceeded to apply the provisions of Article 72 of the Act of 1963 for concluding that the suit was barred by limitation.
10. Under Article 72 of the Act of 1963, the period of limitation prescribed for seeking compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in one year. In other words the act in question or the omission to do such act for which compensation is claimed must be an act or omission which is required by the statute to be done. The provisions of Article 2 of the Limitation Act, 1908 which Article is in para materia with Article 72 of the Act of 1963 were considered by the Hon'ble Supreme Court in M/s Modern Cultivators (supra). It was held that the act in question or the omission to do such act must be in pursuance of a statutory command and only then Article 2 would be attracted. The provisions of Article 72 of the Act of 1963 were considered in Challa Ramkrishna Reddy and others (supra). After referring to its earlier decision in M/s Modern Cultivators, the Hon'ble Supreme Court held that in absence of there being any statutory duty to do ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:35:25 ::: sa497.03.odt 8/10 a particular act or omission thereof, the said Article would not be attracted.
11. From the aforesaid law as laid down, if the facts of the present case are examined, it becomes clear that the suit filed by the plaintiff seeking monetary compensation is on account of the negligence on the part of the defendants in not supplying water to the field of the plaintiff despite requests in that regard being made. The provisions of the Act of 1976 do not indicate that there was a statutory duty imposed on the defendants to supply water for agricultural purposes in absence of any scheme. The provisions of Chapter V of the Act of 1976 indicate a duty to supply water under a scheme prepared by the water committee. The plaintiff is not relying upon any such scheme for seeking to supply water and therefore, it is clear that the right as sought is not on the basis of the duty cast on the defendants under the Act of 1976. Similarly, it is not the case of the defendants that they were bound by any statutory obligation under the provisions of the Act of 1976 to supply water. In that view of the matter, it is clear that the provisions of Article 72 of the Act of 1963 would not be attracted and it would only be Article 113 of the Act of 1963 which would apply for determining the period of limitation. The appellate Court committed an error in applying Article 72 of the Act of 1963 ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:35:25 ::: sa497.03.odt 9/10 while determining the period of limitation in the present case.
It is the specific case of the plaintiff that the damages caused to him were ascertained on 29-4-1993. There is no specific denial to these averments. Notice under Section 80 of the Code of Civil Procedure, 1908 was issued on 8-4-1996 and it was served on the defendants on 15-4-1996. In the light of provisions of Section 15(2) of the Act of 1963, the suit filed on 17-6-1996 is therefore within limitation. The substantial questions of law as framed are answered in favour of the appellant and the suit is held to be within limitation under Article 113 of the Act of 1963.
12. The trial Court determined the amount of damages at Rs.33,120/- and directed payment of interest @ 9% per annum. Before the appellate Court the original plaintiff had filed cross- objection seeking enhancement in the rate of interest as well as the amount of damages. The appellate Court reversed the judgment of the trial Court principally on the ground that the suit was barred by limitation. As that finding has been set aside, it would be necessary to direct the appellate Court to examine the challenge as raised by the defendants to the amount of damages and also adjudicate the cross-objection filed by the original plaintiff seeking enhancement in the amount of damages and rate of interest.
13. Accordingly, the following order is passed: ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:35:25 ::: sa497.03.odt 10/10
(1) The judgment of the appellate Court in Regular Civil Appeal No.213/1999 dated 1-8-2003 is quashed and set aside. It is held that the suit filed is within limitation as per provisions of Article 113 of the Limitation Act, 1963.
(2) The proceedings in Regular Civil Appeal No.213/1999 are restored on the file of the appellate Court. The appellate Court shall adjudicate the appeal afresh in the light of observations made herein above. It is clarified that the finding recorded by the appellate Court that the suit was barred by limitation has been set aside. The appeal as well as the cross-objections be decided on their own merits and in accordance with law. The record and proceedings be sent to the appellate Court forthwith. (3) The parties shall appear before the appellate Court on 23-7-2018. The appeal shall be decided expeditiously by the appellate Court.
(4) The second appeal is allowed in aforesaid terms with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:35:25 :::