Smt. Maya Rani Ghosh Etc. vs State Of Tripura And Ors. on 31 January, 2007

[Cites 21, Cited by 0]

Gauhati High Court

Smt. Maya Rani Ghosh Etc. vs State Of Tripura And Ors. on 31 January, 2007

Equivalent citations: AIR2007GAU76, (2007)2GLR449, 2007(1)GLT669, AIR 2007 GAUHATI 76, 2007 (3) ALL LJ NOC 513, 2007 (3) AKAR (NOC) 348 (GAU), (2009) 3 ACJ 2033, (2007) 1 GAU LT 669, 2007 (3) ALJ (NOC) 513 (GAU.) = AIR 2007 GAUHATI 76 (AGARTALA BENCH), 2007 A I H C 2169, 2007 (4) ABR (NOC) 566 (GAU.) = AIR 2007 GAUHATI 76 (AGARTALA BENCH), 2007 (3) AKAR (NOC) 348 (GAU.) = AIR 2007 GAUHATI 76 (AGARTALA BENCH), (2007) 2 GAU LR 449

Bench: I.A. Ansari

JUDGMENT
 

 I.A. Ansari, J.

1. Can a claim for compensation, under the Fatal Accidents Act, 1855, (in short, 'the Act of 1855') be made by making a mere application, in the Court of District Judge, within whose territorial jurisdiction the cause of 'action' has arisen or whether such a claim for compensation has to be made by instituting a 'suit' in a Court of competent jurisdiction or is the person, claiming compensation, in such a case, has the option of either making an application, in the Court of District Judge, seeking compensation or instituting an appropriate 'suit' in a civil Court of competent jurisdiction? Is there any distinction between a 'suit' and an 'action' or whether the words, 'suit' and 'action', are two interchangeable words? Where lies the origin of 'suit' or 'action'? Is the English legal system of the Courts of 'common law' and the 'Courts of equity' has any bearing on the enactment of the Fatal Accident Act, 1855, and if so, what is the effect thereof? By following a system, which may not be entirely in accordance with the prescribed procedure of law, when Courts have passed orders for fairly long period of time and such orders have already been acted upon, whether the superior Court must necessarily upset such orders, when the errors, in the system, are brought to the notice of the superior Court or whether, in such cases, the maxim 'communis error facit jus' is applicable? These are some of the important questions, which the present Letters Patent Appeals have raised.

2. Before we deal with the questions passed above, we set out the material facts and various stages, which have led to the present Letters Patent Appeals.

LPA 08/2001

3. The appellant herein filed a petition in the Court of District Judge, West Tripura, Agartala, seeking compensation of a sum of Rs. 7,40,000/- under the Act of 1855, the appellant's case being, in brief, thus: on 27-10-1989, when a truck, bearing registration No. TRL-3024, loaded with wooden logs and having the claimant's husband as a labour in the said truck, was entering into a saw mill, claimant's husband happened to touch an electric pole standing near the saw mill, which resulted into his death, the accident. having taken place, because of the fact that the said electric pole got electrocuted due to high voltage live electric lines. At the time of the accident, the deceased was about 40 years old, his income was about Rs. 1,500/-per month and he was the sole bread-earner of his family, which consisted of his wife, two daughters and three sons. Based on this claim application, Title Suit (FA) No. 4 of 1994 was registered.

4. The claim for compensation was resisted by the State respondents by filing written objection, wherein, maintainability of the claim petition was questioned without, however, assigning the grounds on which the maintainability of the petition had been so questioned. As the accident had taken place on 27-10-1989 and the claim was made in the year 1994, the claimant also made an application seeking condonation of delay in making the petition seeking compensation. No objection to this application for condonation of delay was raised by the respondents.

5. Following the evidence, which was adduced by the claimant, the learned District Judge passed an order, on 20-9-1996, styling this order as judgment granting a sum of Rs. 1,56,912/- as compensation with interest @ 12% per annum in favour of the claimant. Aggrieved by the order, so made, the opposite parties preferred an appeal, which gave rise to FA No. 188/96.

6. In the appeal, it was submitted, on behalf of the appellants, before the learned single Judge, that a District Judge has no jurisdiction to entertain a petition seeking compensation made under the Act of 1855 inasmuch as such compensation can be made only by instituting a 'suit' and upon payment of adequate court-fees thereon, It was also contended, on behalf of the appellants, that in the present case, statutory notice, under Section 80 of the CPC, having not been served on the appellants, the 'suit' ought to have been dismissed. It was further contended, on behalf of the appellants, that under the Tripura Courts Orders, 1950, the 'suit' ought to have been filed, depending upon the value, in the Court of the Civil Judge and not in the Court of the District Judge.

7. By judgment and order, dated 27 8-2001, the appeal was partly allowed and the case was remanded to the learned District Judge with directions to frame additional issues, in the case, the additional issues being as follows:

(i) Whether seeking compensation under Indian Fatal Accidents Act a 'suit" or a petition is to be filed?

(ii) Whether 'suit' should be filed by way of presentation of a plaint?

(iii) Whether the plaint requires adequate Court-fees to be paid under The Court-fees Act?

(iv) In case of inability to pay Court-fee whether the provision relating to indigent person as provided in CPC would be applicable?

(v) Whether a 'suit' against the Government under the aforesaid Act could be filed without exhausting the provision under Section 80 CPC?

8. Aggrieved by the judgment and order, dated 27-8-2001, aforementioned, this LPA has been preferred by the claimant as appellants.

LPA 09/2001

9. The claimants, who are widow and father of deceased Tapan Ghosh, filed a petition, in the Court of the District Judge, West Tripura, Agartala, seeking compensation of a sum of Rs. 17,09,000/- under the Act of 1855, the appellant's case being, in brief, thus: on 23-12-1995, while Tapan Ghosh (since deceased) was walking on the road, a high voltage electric wire, which had been repaired, snapped and fell on the road. Having been touched by the live wife, Tapan Ghosh got electrocuted and died on the spot, the accident having taken place due to utter negligence, lapse and carelessness on the part of the opposite party (i.e. respondents herein). At the time of the accident, the deceased was about 26 years old, he was a cultivator and his income was about Rs. 3,000/- per month. Based on this application, Title Suit (FA) No. 3 of 1995 was registered and the same was resisted by the state respondents on the grounds on which the state respondents had resisted Title Suit (FA) No. 3 of 1995 aforementioned.

10. Following the evidence, which was adduced by the claimants, the learned District Judge passed an order, on 10-9-1996, styling this order as judgment granting a sum of Rs. 1,35,000/- as compensation with interest @ 12% per annum in favour of the claimants. Aggrieved by the order, so made, the opposite party preferred an appeal, which gave rise to FA No. 186/96. By judgment and order, dated 10-9-96, the appeal was partly allowed and the case was remanded to the learned District Judge with directions to frame additional issues, the additional issues being the same as in LPA No. 08/2001.

11. Having noticed the importance of the questions, which the present two LPAs had raised, a Division Bench of this Court passed an order, on 29-5-2006, wherein it was observed and directed as follows:

In the judgments assailed in the two Letters Patent Appeals under consideration, the learned single Judge has remanded the matters for deciding the question as to whether under the Fatal Accidents Act, 1855, a litigant is required to file a 'suit' or a 'petition' while seeking compensation. The answer would have significance insofar as the liability to pay Court-fee ad valorem or otherwise is concerned, apart from the procedure that would be required to be followed in entertaining and deciding the lis. The question arising finds a more expressive manifestation in a case between the State of Tripura and Anr. v. Sridhan Choudhury and Anr. . We have also noticed another judgment and order, dated 13-6-2006 delivered by another learned Single Judge of this Court in a proceedings registered as C.R.P. No. 70 of 2002, wherein it has been held that the proceeding as such would be maintainable before the learned District Judge as the said Court is the Principal Court by virtue of the Tripura Courts Order, 1950. However, whether the proceedings are required to be treated as a 'suit' or a 'petition' for claim has not been specifically answered in the aforesaid latter judgment though it has been indicated that the past practice prevailing in this regard, should hold the field.

We are told at the Bar that because of the aforesaid issues arising from the judgment and orders passed by the learned single Judges of this Court, all proceedings under the Fatal Accidents Act pending before the learned District Judges of the State of Tripura have come to a virtual standstill. It will, therefore, be appropriate for this Court to exhaustively deal with the subject and make an attempt to lay down the correct position in law. The aforesaid task will have to be performed by the Court while answering the specific pleas raised in support of the present appeals.

Considering the importance of the matter, we are of the view that the learned Advocate General of the State should be noticed by us. We accordingly issue notice to the learned Advocate General to be served by the Registry in his office, fixing 15-6-2006 as the next date of hearing of this case.

In the facts and circumstances of the case, we also think it appropriate to appoint Shri D.K. Biswas, a learned member of the Bar, as amicus curiae to assist the Court. Office to make available the requisite papers to Mr. D.K. Biswas, learned amicus curiae.

12. We have, now, heard Mr. Somik Deb, learned Counsel for the appellants, and Mr. N. Adhikari, learned Advocate General, appearing on behalf of the respondents. We have also heard Mr. D.K. Biswas, learned Counsel, as amicus curiae.

13. Presenting the case, on behalf of the claimant-appellants, Mr. Deb submits that a careful reading of Section 1-A of the Act of 1855 shows that a person, who is entitled to a relief under this Act, has the option of either instituting a 'suit' or an 'action'. Whether it is a 'suit' or an 'action', the competent Court, in either case, is, according to Mr. Deb, a civil Court. In the case at hand, points out Mr. Deb, when the appellants presented applications under the Act of 1855 and the same were registered as suits, the District Judge, being, under the Tripura (Courts) Order, 1950, the principal civil Court, had the jurisdiction to deal with such an application and award compensation. The questions that the Court-fee had not been paid or no notice, under Section 80 of the Code of Civil Procedure (in short, 'the Code'), had been served on the opposite parties are all questions, which were not specifically raised in the Court of the learned District Judge, when the claim applications were considered by the learned District Judge and, hence, the opposite parties must be treated to have waived the requirement of notice under Section 80 of the Code and as far as Court fee is concerned, it is, points our Mr. Deb, a subject-matter between the Court and the claimants and this ought not to have been made a ground for setting aside the awards, particularly, when the court-fee can be realised even at the time of execution of the awards, which stand on the same footing and have the same force of law as do the decrees granted by a civil Court of competent jurisdiction. Support for this submission is sought to be derived by Mr. Deb from the decisions in Bishandayal and Sons v. State of Orissaand Ors. reported in (2001) 1 SCC 555 : AIR 2001 SC 544, Union of India v. Jyotirmoyee Sharma and Panna Lal v. Mohan Lal and Ors. .

14. Mr. Deb further submits that even if this Court, now, holds that the claimants ought to have instituted a 'suit' instead of merely filing a petition, the awards, which have been passed by the learned District Judge, may be regarded by this Court as decrees lawfully delivered inasmuch as the petitions, which the claimants filed in the present two cases, could have been treated, and have, in fact, been treated, as suits and awards, given therein, can, now, be treated as decrees, for, the practice, in the State of Tripura, has been to file application for compensation, under the Act of 1855, to the District Judge and not by instituting suits. Passionately pleading, on behalf of the appellants, Mr. Deb submits that if the practice of granting of compensation under the Act of 1855, on the strength of applications made and not on the basis of the 'suits' instituted, is found to be incorrect and not entirely in accordance with law, the awards, already rendered by resorting to such a practice, may be saved.

15. Appearing, on behalf of the State respondents, learned Advocate General submits that in respect of a claim for compensation, which may arise under the provisions of the Act of 1855, an aggrieved person, who seeks compensation, must institute a 'suit', for, it is Section 9 of the Code, which governs such cases of compensation. No award for compensation, according to the learned Advocate General, could have been made on the basis of mere application or petition seeking compensation under the Act of 1855.

16. Mr. D.K. Biswas, learned amicuscuriae, submits that the relief of compensation for an 'actionable wrong', which is tortious in nature, can be sought only by instituting a 'suit' on the basis of a plaint, for, such a 'suit', according to Mr. Biswas, is amenable to the jurisdiction of the civil Courts under Section 9 of the Code. It is the submission of Mr. Biswas that once a relief is amenable to the jurisdiction of the civil Courts under Section 9 of the Code, no such claim for compensation can be made before any other Court and in any form other than 'suit" unless some statute prescribes a forum other than civil Courts.

17. In the case of hand, points out Mr. Biswas, neither the statute, namely, the Act of 1855, prescribes any forum for instituting a claim, which may arise under the provisions of the Act nor is there any other statute, which provides or prescribes avenues for obtaining reliefs under the Act of 1855. In such a situation, contends Mr. Biswas, there can be no escape from the conclusion that the remedy of an aggrieved person lies in instituting an appropriate 'suit' in a court of competent jurisdiction. Pointing out to Part VIII of the Limitation Act, 1963, Mr. Biswas, submits that Part VIII of the Limitation Act, 1963, prescribes the period of limitation in respect of 'suits relating to tort' and Article 82, which finds place under Part VIII, prescribes a period of two years as the period of limitation for institution of such a 'suit' by the executors, administrators or representatives under the Act of 1855 making it clear that the period of limitation would start from the date of death of the person killed.

18. In the face of the provisions of Article 82, submits Mr. Biswas, it clearly follows that a 'suit' for compensation, arising out of a tortious act, has to be instituted within a period of two years from the date of death of the person killed. Hence, submits Mr. Biswas, notwithstanding the fact that Section 1-A of the Act of 1855 speaks of both 'suit' as well as 'action', the fact remains that the Act of 1855 does not prescribe any forum for instituting a claim for compensation and, in the absence of any forum other than civil Courts having been prescribed by the Act of 1855, the remedy of the aggrieved party lies in instituting suits for compensations in the civil Courts of competent jurisdiction. This apart, points out Mr. Biswas, though the Act of 1855 does not prescribe any period of limitation for making claim for compensation, the fact remains that the limitation, prescribed by Article 82, cannot be overridden or obviated in the absence of any other legislative provisions indicating to the contrary. The act of 1855, points out Mr. Biswas, gives substantive right to claim compensation for 'actionable wrong, neglect or default', but this Act does not prescribe the forum for relief nor does it prescribe the period of limitation for such claims and, hence, it is, in the light of the provisions of Section 9 of the Code, a civil Court of competent jurisdiction, which can grant compensation in such a case, provided that the 'suit' is brought within a period of two years from the date of death of the person killed.

19. It is further submitted by Mr. Biswas that it is not necessary that every 'suit' has to be initiated by presentation of a plaint inasmuch as a suit, points out Mr. Biswas, by an indigent person commences not by presentation of a formal plaint, but, as the Order XXXIII of the Code speaks, by the presentation of a petition and it is the petition, which, if allowed, is treated as plaint and it is the petition, so allowed, which is registered as a 'suit'. It is, therefore, clear, contends Mr. Biswas, that even if a petition is filed seeking compensation under the Act of 1855, it can still be treated as a 'suit' if it satisfies the conditions of a plaint and the necessary court-fee is paid thereon. Non-payment of the court-fee, candidly submits Mr. Biswas, cannot be made a ground, in every given case, to set aside a decree, particularly, when the decree-holders are persons, who have been left, as in the present two cases, without their sole bread-earner.

20. Upon hearing learned Counsel appearing before us and on perusal of the materials on record, we are of the view that we must, first, ascertain as to whether a person, who derives a right to claim compensation under the Act of 1855, has the freedom of instituting a civil 'suit' in the Court of competent jurisdiction or, at his option, he can file a petition or an application, as has been the practice in the State of Tripura, in the Court of District Judge. If we find that the only way to receive the relief of compensation for such a person is to institute an appropriate 'suit' as conceived under the Code, the question that we would confront would be as to whether the orders, which have already been passed as a result of the practice of instituting such claims by presenting a mere petition in the Court of the District Judge, shall be set at naught and be regarded as nullity or whether the orders, which have already been made, though not strictly according to law, shall be allowed to survive and if so, whether it is permissible, in law, to allow an order, which has not been passed strictly in accordance with law, to survive and if so, under what circumstances such a course of action is permissible.

21. Keeping in view what has been indicated above, let us, now, decide as to whether a person, who derives a right, under the Act of 1855, to seek compensation, must necessarily institute a 'suit' for obtaining such compensation or he can present an application, in this regard to the District Judge as have happened in the present two cases.

22. For the purpose of determining as to whether a person, who derives a right, to claim compensation, under the Act of 1855, must necessarily institute a 'suit' for obtaining such a relief, imperative it is that we determine as to what the legislative intent behind the Act of 1855 is. It is well settled that while interpreting a statute, the primary and foremost task of a Court is to ascertain the intention of the legislature, actual or imputed. Having ascertained the. intention of the legislature, the court shall strive to so interpret the statute as would promote and advance the object and purpose of the enactment by supplementing the written words, if necessary, See Girdharilal and Sons v. Balbir Nath Mathur . In fact, the Apex Court has clarified, in Girdharilal & Sons (supra), that for this purpose, wherever necessary, the Court may even depart from the rule that plain words should be interpreted according to their plain meaning,. There need be, according to the Apex Court, in Girdharilal & Sons (supra) no meek and mute submission of the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be well justified, observes the Apex Court, in Girdharilal & Sons (supra), in departing from the so called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word, if necessary. We must, therefore, so interpret the meaning of the words, used in the Act of 1855, as would advance the purpose of the enactment and suppress the mischief, which the enactment seeks to avoid.

23. Bearing in mind what have been indicated above, we, first, turn to the statement of object and reasons of the Act of 1855. The object of the Act of 1855, reads "An Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong". We also notice that the Preamble of the Act of 1855 reads as follows:

Preamble - Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect, or default, may have caused the death of another person, and it is often-times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him.

24. A careful reading of the statement of object and reasons of the Act of 1855 clearly shows that this Act aims of providing compensation for the loss occasioned to the family of a person, whose death is caused by actionable wrong. The Preamble of the Act shows that before the Act was brought into force, no "action" or 'suit' was maintainable, in any Court, against a person, who by his wrongful act, neglect or default, may have caused the death of another person, though many a times, in such cases, the wrong-doer should be answerable, in damages, for the injury so caused by him.

25. The Preamble, thus, shows that prior to the enactment of the Act of 1855, the legal representatives of a person, who died, as a result of a wrongful act, neglect or default, had no remedy to seek damages from the wrong-doer. Why is it that a wrong-doer was considered not liable to pay for damages, if he caused death of a person by his wrongful act, neglect or default, has its origin in the common law of England. Though sounds illogical, well known it is that under the common law of England, no action could be laid by the dependants or heirs of a person, whose death was caused by tortious act of another, on the strength of the maxim, 'actio personalis moretor cum persona' ('a personal action dies with the person'), although a person, injured by a similar tortuous act, could validly claim compensation for the injury caused to him if he survived. It was, therefore, commonly commented that it was cheaper to kill than maim.

26. In order to, therefore, give substantive right to a person, who was left as a widow, widower, parent and child of a person, who had died due to wrongful act, neglect or default of another person, Fatal Accidents Act, 1846, popularly known as Lord Compbell's Act, was enacted in England. Thus, Lord Compbell's Act provided, for the first time, in England, to legal representatives, such as, widow, widower, parent and child of a person, who died due to a wrongful act, neglect or default of another person, substantive right to claim damages.

27. We may pause here to point out that there is no wholly satisfactory definition of tort. The word "tort" derives its origin from the Latin word "tortious", meaning twisted or crooked and is, generally, used as a synonym for 'wrong'. A tort is, broadly speaking a civil wrong other than a breach of contract, which the law redresses by an award of damages. This definition is, however, not exhaustive. Though laws of tort and crime had their common origin in revenge and deterrence, the fact remains that with passage of time, both these branches of law became distinct. A crime is an offence against the State and as representative of the public, the State will vindicate its interest by punishing the offender. A criminal prosecution is not concerned with repairing an injury that may have been done to an individual, but with exacting a penalty in order to protect society as a whole. Tortious liability, on the other hand, exists primarily to compensate the person injured by compelling the wrong-doer to pay damages for the damage he has done. The horizon of the tortious liability has been expanding with every passing day. Granting of compensation for the victims of sexual abuse or assault or victims of custodial death are examples of this expansion. The common law disclaimed the right to receive compensation for wrongfully inflicted death. This denial made its first appearance in 1808, when Lord Ellenborough, in Baker v. Bolton (1808) 1 Camp 493, categorically enunciated that "in a civil Court, the death of a human being could not complained of as an injury". The consequence of this pronouncement was that the loss occurring due to the death of the person killed could not be complained of as an injury and was, therefore, not redressable by granting of damages. This principle was based on the archaic, but tenacious rule that when a tort constitutes, at the same time, a felony, no civil action can be maintained until the time the wrongdoer has been prosecuted. The reason for this unbelievable principle was that at one point of time, every felony was punishable with death and the felon's chattels were forfeited to the Crown upon conviction. The result was that in all cases of wrongful death, the wrong doer was punished with death, his chattels were forfeited to the crown and no civil action could, therefore, survive. By introducing the Fatal Accidents Act, 1846, popularly known as Lord Campbell's Act, a limited measure of protection, as pointed out above, was accorded to the interests of dependants of a person, who died in fatal accidents.

28. It is, now, pertinent to note that the Indian Fatal Accidents Act, 1855, was based on the Fatal Accidents Act, 1846, of England. In the backdrop of the history of absence of legally available right to receive damages from the wrong-doer by the legal representatives of a person, who had died of an actionable wrong, when one considers the Preamble of the Act of 1855, it becomes abundantly clear that in order to make a wrongdoer statutorily liable to pay damages for the wrongful act, neglect or default, the Act of 1855 was brought into existence.

29. Keeping in view what have been indicated above, we reproduce here in below Section 1-A of the Act of 1855:

1 -A. Suit for compensation to the family of a person, for loss occasioned to it by his death by actionable wrong.-- Whenever the death of a person shall be caused by wrongful act, neglect or default and entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

[xxx] Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;

and in every such action, the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.

30. Section 2 of the Act of 1855, it may be pointed out, reads as under:

2. Not more than one suit to be brought--Provided always that not more than one action or suit shall be brought for, and in respect of the same subject-matter of complaint.

Provided that, in any such action or suit, the executor, administrator, or representative of the deceased may insert a claim for, and recover any pecuniary loss to, the estate of the deceased occasioned by such wrongful act, neglect, or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased.

31. A careful reading of Section 1-A of the Act of 1855 shows that with the enactment of this piece of legislation, the legal representatives or heirs of a person, who died of a wrongful act, neglect or default of another person, could, under the Act of 1855, either bring an 'action' or a 'suit' for damages. Since the Act of 1855 uses both these expressions, namely, 'action' as well as 'suit', imperative it is that the legal history as regards the use of the expressions 'action' and 'suit" be recalled. This, in turn, calls for determining the question as to whether there is any distinction between 'action' and 'suit' and, if so, what the distinction between the two is.

32. Our quest for an answer to the above question necessarily brings us to the concept of 'action' and 'suit' in English law and the change, in the meaning of the two expressions, which has, gradually, undergone in English law. For the purpose of ascertaining as to what meaning the words 'suit' and 'action' carried in English law, when the Act of 1855 was brought in force, we have to necessarily look into the evolution of the 'Courts of common law' as distinguished from the 'Courts of equity' and also the gradual fusion between the two.

33. The evolution of common law makes a fascinating reading and traces its origin to the English legal system, which started taking a coherent shape in the reign of Henry II (1154-1189). When Henry II came to the throne, justice was, for the most part in England, administered in local Courts, i.e. by local lords to their tenants in the feudal Courts, and by the Country Sheriffs, who often sat with the Earl and the Bishop in the Courts of the Shires and Hundreds. They administered the law in their respective areas and decided the cases, which came before them, on the basis of local custom. In the field of civil law, a new civil remedy called 'The Assize of Novel Disseisin' was offered to persons, who complained that their land had been wrongly seized. From this remedy grew a range of civil actions and in this way, the General Eyre came to have a criminal and civil jurisdiction. Thus, royal and more uniformed justice began to surface, in England, as a whole.

34. Though the Normans were not very enthusiastic to completely change the English customary law by imposing Norman law in England, attempts were, however, made by Normans to introduce some kind of uniformity in English law and it was sought to be achieved with the introduction of General Eyre, whereby representatives of the King were sent from Westminster, on a tour of the Shires, for the purpose of checking on the local administration. During the period of their visit, they would sit in the local Courts and hear cases and, gradually, they came to discharge a judicial rather than an administrative function. At a later stage, the Judges for the General Eyre were selected from the Court of Common Pleas, which normally sat at Westminster, but remained closed, while the Judge were on circuit.

35. The General Eyre disappeared in the reign of Richard II (1377-99) and it came to be replaced by a system of circuit Judges from the King's Bench, the first circuit commission being granted in the reign of Edward III (1327-77). By selecting the best customary rulings and applying these outside their county of origin, the circuit judges, gradually, molded existing local customary laws into one uniform law, which became 'common' to the whole kingdom. Thus, customs, originally local, came to be, ultimately applied throughout England. Even so, there was no absolute uniflication even as late as 1389 and, in a case, in the Common Pleas, in that year, a custom of Selby, in Yorkshire, was admitted to show that a husband was not in that area liable for his wife's trading debts, though the common law elsewhere regarded him as liable. However, many new rules were created and applied by the royal Judges as they went on circuit and these were added to local customary laws to make one uniform body of law called 'common law'. Though the 'common law' was largely said to be based on custom, the fact remains that the 'common law' is historically judge-made law. This is reflected from the decision, in Beaulieu v. Finglass (1401) YB 2 Hen. 4, f. 18, pl. 6, wherein it was said that a man, who, by negligence, failed to control a fire so that it did not spread to his neighbour's house, was liable to pay damages according to 'the law and custom of the realm', though it is not easy to see on what customary rule, the Court based this decision.

36. We may, perhaps, also point out that one of the important factors, which helped in uniform development of 'common law' was the application of the doctrine of stare decis is, which, in effect, means standing by previous decisions. Thus, when a judge decided a new problem in a case brought before him, this became a new rule of law and was followed by subsequent Judges. In later period, this practice crystalized into the concept of the binding force of judicial precedents, for, the judges felt bound to follow previous decisions instead of merely looking to them for guidance. By these means, the 'common law' earned the status of a system. Thus, the 'common law' is a judge-made system of law, originating in ancient customs, which were clarified, expanded and universalized by the Judges.

37. In England, though the common law Courts administered justice or enforced rights, primarily, on the basis of usages and customs, they did come to enforce, in seventeenth century, even statutory rights. The common law, in England, was essentially evolved by judicial decisions and precedents and that is why, the common law is, at times, as pointed above, referred to as judgment made law.

38. As the common law Courts, being very formal in nature, failed, at times, to give redress, in certain types of cases, where redress was needed, the disappointed litigants turned to the King and submitted petitions to the King, who was the "fountain-head justice", seeking extraordinary reliefs, which the common law Courts were incapable of giving. The King, ordinarily, granted relief to the aggrieved party. In course of time, the King started administering justice, though his Chancellor, to those litigants, who were unable to receive justice in the common law Courts. This system of the King, functioning through Chancellor and granting to people extraordinary relief, gradually, came to be known as the 'Court of Chancery". The 'Court of Chancery' started dealing with the petitions meant for the King. The 'Court of Chancery' used to administer law on the basis of equity and good conscience. No wonder, therefore, that the 'Court of Chancery' came to be known, in course of time, as the Court of Equity and became a regular part of the law of the land in England. The equitable remedies, granted by the Court of Equity, included remedies of specific performance and injunction, which the common law Courts were not permitted, by usage and customs, to grant. The rights secured by the common law were called legal rights and those secured by the Courts of equity were called equitable rights. The legal rights and remedies were made available by common law Courts, because these rights were recognized and enforced in the Courts of common law; whereas equitable rights were granted by the Courts of equity.

39. As the Courts of common law proceeded by certain prescribed norms and entertained jurisdiction on certain specified occasions and gave remedies on the basis of usages and customs, there were many cases in which the litigants were left dissatisfied and without remedy. These litigants, as indicated above, were driven to make petition to the King as the "fountain-head of justice", for, it was the King, who could have granted them such extraordinary reliefs, which the common law Courts were unable to give. The jurisdiction of a Court of equity became, in course of time, concurrent with the Courts of common law and, sometime, it was exclusive. The Courts of equity exercised concurrent jurisdiction in those cases, where the rights were purely of legal nature. The most common exercise of concurrent jurisdiction were in the case of account, accident, dowry, fraud, mistake, partnership and partition. The exclusive jurisdiction of the Courts of equity granted special reliefs, which were beyond the reach of the common law. For instance, the Court of Chancery could grant injunctions to prevent waste or irreparable injury, compel restitution of titles, appoint receivers of property or grant decree for specific performance of contract, etc.; whereas the common law Courts could give no such relief.

40. The appearance of the Courts of equity, in the English legal system, is manifestation of a problem, which confronts all legal systems until the system reaches a certain degree of development and consistency. To ensure systematic running of society, it is necessary to formulate general rules. However, the fall out of such general rules is that these rules work well in the majority of the cases; but sooner or later, an unforeseen set of facts may give rise to a case to which such general rules may offer no remedy. When this occurs, justice requires either an amendment of the rule or, if the rule is not freely changeable, a further rule or body of rules have to be developed to mitigate the severity of the rules of law. Similar was the situation in England. The common law Courts were unable to grant remedies to all aggrieved persons, particularly, when the claim was for damages, for, common law Courts awarded no damages. The deficiency of the common law Courts gave rise to a system of presenting petition to the King as discussed hereinabove.

41. As the days rolled by, there was bound to be conflicts between the Courts of Equity and Common Law Courts. When there was a conflict between the rules of common law and rules of equity, it was equity, which prevailed. Suppose, that X brought an action against Y in one of the common law Courts and in the view of the Court of Chancery, the action was inequitable. Y's proper course was to apply to the Court of Chancery for an order, called a 'common injunction' and the Court of Chancery could, in such a case, direct X not to continue his action. If X defied the injunction, the Court of Chancery could put X in prison for contempt of Court. Equity, thus, worked "beyond the scenes" of the common law action, for, the common law principles were theoretically left intact; but by means of this intricate mechanism, they were superceded by equitable rules in all cases of "conflict and variance". The result justified the sarcasm of the critic, who said that in England, one Court was set up to do justice and another to stop it. The tussle between the two Courts "common law' and 'equity" reached its peak in the Earl of Oxfords case (1615) wherein the judgment, delivered by Chief Justice Coke, which was allegedly obtained by fraud, came to be accordingly challenged in the Court of Chancery. The Court of Chancery issued a 'common injunction' prohibiting the enforcement of the said judgment of the 'common law Court'. As the two Courts were bent upon enforcing their own respective orders, the matter was referred to the then Attorney General, Sir Francis Bacon. By the authority of King James I, Sir Francis upheld the use of the 'common injunction' and concluded that in the event of any conflict between 'common law' and 'equity', 'equity' would prevail. This decision helped 'equity' acquires primacy in the English legal system. The common law Courts, after its famous struggle to retain their hegemony in the 17th century, law passive under this process. See Master v. Miller (1791) 4 TR at 341, and international Factors Limited v. Rodriguez (1979) QB 351. This system of struggle between the 'Courts of equity' and the 'Courts of common law' continued until 1873, when, as a result of the Judicature Act, 1873, the old Courts of common law and the Court of Chancery were abolished and, in their place, was established a single Supreme Court of Judicature, each branch of which had full power to administer both law and equity. Under the Judicature Act, 1873, the system of 'common injunction' was abolished and instead, it was enacted that in cases of 'conflict or variance' between the rules of equity and the rules of common law, the rules of equity shall prevail.

42. We may, now, revert to the question as to where lied the origin of 'suit vis-a-vis 'action' or are these two words interchangeable. The answer to this question is not too far to seek. Because of the fact that in England, two types of Courts functioned simultaneously, namely, Courts of Common Law and Courts of Equity, an aggrieved person could have gone to a Court of equity or he could have gone to a Court of common law. The choice depended on which of the two Courts had jurisdiction and, if both had concurrent jurisdiction, the option was left to the aggrieved person to choose the Court. When a proceeding was initiated by an aggrieved person in the Court of common law, it was called 'action' and when, however, a proceeding was initiated by an aggrieved person in a Court of equity, it was called 'suit'. Thus, the origin of 'suit' lies in the Courts of equity; whereas the origin of 'action' lies in the Courts of common law. With the passage of time, the distinction between the two started becoming narrower and with the abolition of the Courts of common law and the Court of Chancery by the Judicature Act, 1873, as indicated hereinabove, a 'suit' has become a generic term and 'action' is one of the species thereof. The words, 'suit' and 'action' have, thus, become gradually synonymous. A reference may be made to a catena of decisions, which bring out the difference between the two expressions, namely, 'suit' and 'action'. The word 'suit' is a generic term, which denotes any legal proceeding of a civil kind by one person against another. The term 'suit', however, is used in opposition to 'action', suit being the proper word for a litigation in equity, and 'action' for a litigation in the Court of law, see Branyan v. Kay 11 SE 970, 971, 33 SC 293, Appleton v. Tumbull 24 A 592, 593, 84 Mc. 72. At common law, an equity case was referred to as a 'suit' in equity and a law case, as an 'action' at law, but in common usage, the word "proceeding" includes a law suit of any kind, suit, action, or prosecution, though not necessarily limited to actions or prosecutions in a Court See U.S. v. Auerbach D.C. Cal 68 F. Supp 776, 780. The words 'suit' and 'action' are generally synonymous, though the term 'suit' is the appropriate one to designate a proceeding in a Court of equity and 'action' to designate one in a Court of law, See Miller v. Rapp 34 NE 125, 126, 7 Ind App 89 'Action' and 'suit' are often synonymous, though an action may be considered a form of a suit, and the latter is often applied to proceedings in equity, and 'action' to those at law, up to judgment. (See Hall v. Bartlett N.Y. 9 Barb 297, 300, citing Weston v. City of Charleston 27 US 449, 464, 2 Pet 499, 464, 7 L. Ed. 481; Miller v. Rapp. 34 NE 125, 126, 7 Ind App 89. The word 'suit', in legal nomenclature, is generic and applies to any proceeding in a Court of justice in which a plaintiff pursues a remedy, whether at law or in equity, being broader than the word 'action', which is applied exclusively to matters at law. See Syracuse Plaster Co. v. Agostini Bros. Building Corporation, Supp 7 N.Y.S. 2d. 897, 900. Though the legislation abolished the common law distinctions between suits and actions and did away with the name suits, a 'suit' now is either an action or a proceeding in the nature of an action in Court See Milwaukee Light, Heat & Traction Co. 125 NW 903, 905, 142, Wis. 424, 27 LRA N.S. 567, 20 Ann. Cas 707. The words 'suit' and 'action' are, sometimes, used synonymously See Throp v. Rutherford 43 P. 2d 907, 910, 150 or 157. The words 'action' and 'suit', as used in statutes of limitation, are generally synonymous See Whifield v. Burrell 118 SW 153, 156, 54 Tax. Civ. App 567; Jellison v. Swan 74 A 920, 922, 105 Me. 356. In legal sense, 'action', 'suit' and 'cause', are convertible terms, See Ex. parte Milligan 71 US 2, 4 Wall, 2 1S L.Ed. 281. Tilamook County v. Wilson River Road Co. 89 p. 958, 959, 49 Or. 309, citing Bonv. Law Dict., And; Law Dict., Messenger v. Board of Com'rs of Converse County, 117 p. 126, 130, 19 Wyo. 309.

43. If the fact that in English law, 'suit' and 'action' carried, originally, two different meanings is borne in mind and in the backdrop of such a difference, which existed between the two, namely 'suit' and 'action', when one considers the reason to why the Act of 1855 uses both the expressions 'suit' as well as 'action', it would become obvious that the reason is. as already pointed out above, that the Indian Fatal Accidents Act, 1955 (which we have been referring to as "the Act of 1855") was based on the English Fatal Accidents Act, 1846, which is popularly known as Lord Campbell's Act.

44. What is, now, of utmost importance to note is that in India, the English system of having Courts of common law and Courts of equity never existed nor was such a system introduced by the British. Broadly speaking, the system of the administration of justice consisted of civil courts and criminal Courts. All civil actions entered into, and tried in, the civil courts; whereas all criminal actions ended in criminal Courts. (The English Fatal Accidents Act, 1846, made it clear that a person could either initiate an action, for damages, in the Court of common law or a suit, for damages, in the Court of equity, on the strength of the substantive right to claim damages having been given under the English Fatal Accidents Act). Because of the fact that there was a firm, though subtle, distinction between 'action' and 'suit', Section 2 of the English Fatal Accidents Act, 1846, made it clear that either a person could initiate an 'action' or a 'suit' for damages, but not both. Because of the fact that the Act of 1855, as already indicated above, is based on the English Fatal Accidents Act, 1846. Section 2 of even the Act of 1855 makes it clear that a person can either institute a 'suit' or an 'action', but not both. This position of law becomes clear if one carefully goes through Section 2 of the Act of 1855, which reads, inter alia, "provided always that not more than one action or suit shall be brought for, and in respect of the same subject-matter of complaint".

45. The substantive right given to an aggrieved person to claim damages was, therefore, alternative, in England, meaning thereby that one could have either initiated an 'action' for damages, as understood in English law, in the Court of common law, or a 'suit' for damages, as understood in English law, in the Court of equity. In India, with the introduction of the Codes of Civil Procedure, all civil actions became amenable to the civil Courts unless a class of such civil cases was taken out by the legislature and given to a tribunal or other forum for decision. The Motor Accidents Claims Tribunals, in India, form, as a class, a noticeable example of this class of legislation. Ordinarily, all suits for compensation, arising out of tortious liability, were amenable and are still amenable to the Courts of Civil Jurisdiction unless the legislature choose to take away any class of such cases from the jurisdiction of the ordinary civil Courts and vests the jurisdiction to deal with such cases in a tribunal or other judicial. We may, at once, point out that long after introduction of the Act of 1855, the Motor Vehicles Act, 1939 (which has been replaced by the Motor Vehicles Act, 1988) was enacted, where-under the cases of compensation, which arose out of death of a person or injury caused to him by neglect or default as a result of use of motor vehicles in a pubic place, are to be tried.

46. In short, Motor Accidents Claims Tribunals deal with accidents, which arise out of neglect or default. What is worth pointing out, now, is that the Claims Tribunal, which are constituted under Section 165 of the Motor Vehicles Act, 1988, decide only those cases of death or injury which arise, because of neglect or default, in the use of motor vehicles, in public place. These Tribunals do not deal with, or determine, any question of damages if a person dies due to wrongful act of a person, who uses a vehicle in a public place. To make it more explicit, we may point out that when an injury or death occurs due to negligence or default, a Claims Tribunal, constituted under the MV Act, 1988, can determine the question of compensation; but if the person is deliberately killed or injured in a public place, the claim for compensation, arising out of such wrongful act, will not lie in the Motor Accidents Claims Tribunal, constituted under the MV Act of 1988. In such cases, the injured, or the legal representatives of the deceased, as the case may be, shall have to necessarily take recourse to the provisions of the Act of 1855 and seek their remedy in the ordinary civil Courts. In short, the Motor Accidents Claims Tribunals deal with specified classes of tortious liability, but in respect of claims for damages arising out of other classes of cases of tortious liability, the jurisdiction still remains vested in the civil Courts and would remain so vested in the civil Courts until legislature creates a tribunal or some other forum for decision of such cases.

47. A claim for damages arising out of tortious liability, ordinarily, lies within the ambit of the jurisdiction of the civil Court under Section 9 of the Code. Since the Act of 1855 is a substantive law and not a procedural law, a person aggrieved, on deriving his right to claim compensation, under the Act of 1855, shall have to necessarily go to the civil Court and institute a suit seeking damages or compensation until a tribunal or some other forum for trial of such suit is created by legislation. Since the Act of 1855, while granting substantive rights to the wife, husband, parent and child of the person, whose death is caused by an actionable wrong, speaks of both 'suit' as well as 'action', it is possible for the legislature to prescribe a forum or a Court or a tribunal other than a regular civil Court for dealing with and deciding the cases of damages arising out of the Act of 1855. However, so long as a Court, tribunal or other forum is not prescribed, a claim for damages, under the Act of 1855, can only be made by way of instituting suits for damages and by no other means. This becomes clear, when one refers to Part VII of the Limitation Act, 1963, and, particularly. Article 82 contained therein. The relevant portion of Part VII is reproduced herein below:

       Description of suit      Period of          Time from which
                              Limitation         period begins to run

82.  By executors, admi-      Two                The date of the
     nistrators or repre-     years              death of the per-
     sentatives under the                        son killed.
     Indian Fatal Accidents
     Act, 1855 (13 of 1855).

48. A claim for damages, under the Act of 1855, is nothing, but a 'suit relating to tort'. The period of limitation for such a 'suit' would be two years from the date of the person killed. If the use of the expression 'action', which occurs in Section 1-A, is interpreted to mean that a person has an option of either making an application to a civil Court for damages on the basis of the rights derived by him under the Act of 1855 or to institute a suit, in this regard, then, the very purpose of the substantive right, created under the Act of 1855, having been limited, by a period of two years under Article 82, would stand defeated. When the period of limitation is not prescribed for an application, the period of limitation for such an application, under Article 137, would be three years from the date, when the right to apply accrues.

49. In fact, if a careful analysis of the provisions, contained in the Act of 1855, is carried out, in its historical perspective, what transpires is that Section 2 of the Act of 1855, originally, read as under:

2. Not more than one suit to be brought - Provided always that not more than one action or suit shall be brought for, and in respect of the same subject-matter of complaint.

50. The words "and that every such action shall be brought within twelve calendar months after the death of such deceased person" were repealed by the Indian Limitation Act, 1871 (9 (IX) of 1871). The fact that it was under the Indian Limitation Act, 1871, that the words, contained in Section 2, which read, "and that every such action shall be brought within twelve calendar months after the death of such deceased person" have been repealed give clear indication of the fact that the Indian Limitation Act, 1871, did apply to the Act of 1855. Thus, when the Act of 1855 was initially introduced, no suit or action could have been brought after twelve calender months of the date of the death of the deceased person. In the face of the fact that the Limitation Act, 1871, was applicable to the provisions contained in the Act of 1855, there can be no escape from the conclusion that when the Limitation Act, 1963, now, prescribes a period of limitation of two years from the date of the death of the person killed for the purpose of instituting suits under the Act of 1855, a claim for compensation, under the Act of 1855, can, now, be made only by instituting a suit in civil Court of competent jurisdiction and not by making a mere application to the District Judge within whose legal jurisdiction the cause of action may have arisen.

51. Ordinarily, the jurisdiction of the Civil Court has to be presumed to exist unless it is expressly or by implication excluded by statute in respect of a civil wrong. It is no longer res intergra that unless civil Courts' jurisdiction is specifically or expressly barred by a statute, the ouster of jurisdiction of the civil Courts cannot be readily inferred and the answer to the question as to whether the jurisdiction of the Civil Courts has been ousted or not has to be gathered by determining the legislative intendment of the statute concerned and for this purpose, the Court must take into account the entire scheme of the statute, there being always a strong presumption that the civil Court has jurisdiction to decide all the questions of civil nature. If, therefore, there be, having regard to the scheme of a statute, an inference of exclusion of civil Courts' jurisdiction by; the statute, it would become the unquestionable duty of the Courts to determine if the ouster of jurisdiction is absolute or partial. See also ITI Ltd. v. Seimens Public Communications Network Ltd. .

52. When the Court has to presume jurisdiction of the civil Court to entertain claim for damages unless such jurisdiction is excluded, the fall out would be that until the time a statute prescribes a forum other than civil Court for determining the cases of compensation arising out of the rights derived under the substantive law of the land, namely, the Act of 1855, the remedy for the aggrieved party would lie in instituting, on the strength of his substantive right under the Act of 1855, a 'suit' in terms of Article 82 of the Limitation Act, 1963.

53. We notice that, Article 82, which appears in Part VII of the Schedule to the Limitation Act, 1963, specifically mentions the words 'fatal accidents' and the period of limitation prescribes therefore is two years from the date of death of the person killed. As Part VII covers 'suits relating to tort only', we are unable to agree with the submissions made on behalf of the appellants that we shall read into Article 82, the word 'application' or 'petition' too in place of the word 'suit' occurring therein. In India, suits and applications are completely different actions in law inasmuch as there is no provision for condonation of delay, under Section 5 of the Limitation Act, in respect of suits; whereas an application stands on the footing of an appeal and to an application, benefit of the provisions of Section 5 would be available. As the Act of 1855 gives substantive rights and does not prescribe the procedure for obtaining such rights, the procedural law for receiving compensation or damages, under the Act of 1855, would be governed by the ordinary law of the land unless a special forum for addressing such grievances is created, such as, a tribunal. The impression that the words 'suit' and 'action' have been used as interchangeable words, is clear from the use of the word 'suit' in the heading of Section 1-A. While the words 'action' and 'suit' have been used in the first and second paragraph of Section 1-A, the third paragraph of Section 1-A speaks of 'action' alone. This apart, the words, "in every such 'action', the Court may give such damages", which occur in the third paragraph of Section 1-A, points to the fact that the two words 'suit' and 'action' have been used, in Section 1-A, as interchangeable words.

54. When the words 'action' and 'suit', appearing in the Act of 1855, are read, in the context of the relevant provisions of the Limitation Act, as appear in Part VII, one is driven to the lone and only conclusion that the word 'action' or 'suit' were intended to mean one course of 'action' and one remedy only and the legislature had no intention to provide two separate remedies in two different ways. This impression gets strengthened from the fact that the words 'by executors, administrators or representatives' of the deceased, appearing in Section 1-A, have been reproduced in Article 82 of the Limitation Act. When there is death by electrocution, it is an 'actionable wrong', which falls within the ambit of 'tort'. In such a case, no provision, other than those contained in Part VII of the Limitation Act, can, in our view, be made applicable and in that view of the matter, Article 137, which relates to applications, cannot be applied.

55. Having concluded that a claim for damages for tortious acts, such as, electrocution, would, in the absence of any specific law having been made in this regard, be amenable to the jurisdiction of the ordinary civil Courts and can be initiated by instituting suit, the question, which, now, arises for consideration is as to what reliefs, if any, the parties are entitled ?

56. In the case at hand, three factors operate as serious hindrance in the way of the claimants-appellants receiving relief, namely, (i) no notice under Section 80 of the Code was given to the respondents, though the respondents include the State, (ii) requisite court-fee, as is required in the case of a 'suit' for damages, has not been paid and (iii) one of the claim applications, which has given rise to Title Suit (FA) No. 4 of 1994, was made after expiry of the period of limitation of two years. In the face of these hurdles, will it be permissible for the Court to give any relief to the claimants is the question, which we are, now, required to address.

57. While considering the above aspect of the matter, what needs to be noted is that notwithstanding the fact that service of notice under Section 80 of the Code is imperative before a 'suit' is instituted against the Government, such a 'suit' cannot be dismissed for want of notice if the Court is satisfied that the requirement of notice have been waived by the defendant See Bishandayal and Sons v. State of Orissa .

58. In the present case, though the maintainability of the application mode by the claimants was challenged by the opposite party, respondent herein, no specific ground was taken as to why the application was not maintainable. At no stage of the claim proceeding, the State respondents took the plea that the making of the application seeking damages should not be entertained in law, because of non-service of notice under Section 80 of the Code. In these circumstances, the requirement of notice may be safely held to have been waived by the opposite party-respondents. So far as the court-fee is concerned, what needs to be born in mind is that court-fee is essentially a matter between the State and the person, who comes to the Court, as a pauper or otherwise. The opposite party or the defendant is granted an opportunity to have his day in the matter merely for the purpose of enabling the opposite party or the defendant to show that the application made by a pauper is not bona fide or that the omission to pay court-fee is not bona fide. The person, who raises the question of court-fee, cannot take upon itself the role of the State. Thus, non-payment of court-fee cannot be made a ground to hold a decree inexecutable nor can such a decree be set aside if the same is otherwise valid and effective in law, particularly, because it is possible for the Court to realize the court-fee even at the time of execution of the decree. Merely, therefore, the fact that the decree has been obtained by a person without paying any court-fee or without paying appropriate court-fee the decree, if validly granted, cannot be held to be inexecutable or a nullity, particularly, when the bona fide of the person, who obtains the decree with either deficit court-fee or with no court-fee, is not challenged or is in dispute. Nonpayment of court-fee is neither a jurisdictional defect nor a material illegality or irregularity, which can render a decree a nullity in the eyes of law.

59. So far as the delay in making the claim application to the District Judge, in Title Suit (FA) No. 04/94, is concerned, it may be pointed out that record reveals that no specific objection to the delay, in filing of the claim application, was taken by the State respondents. When a Court grants a decree in a suit, which the Court has the jurisdiction to try, the decree granted by the Court, in such a case, would not be a nullity on the ground that the suit was filed beyond the period of limitation. See Ittiyavira Mathai v. Varkey Varkey . In the present case, even the appeals, the awards were not impugned that the rights, if any, to claim compensation, under the Act of 1855, stood barred by limitation.

60. What is, now, of immense importance to note is that under the Tripura (Courts) Order, 1950, District Judge is the principal civil Court. In the case of hand, we have already held that a suit for damages, under the Act of 1855, would lie in the civil Court of competent jurisdiction. As the principal civil Court of the district, the District Judge, in the present two cases, had the jurisdiction to entertain the suit. The question, now, is as to whether the claim applications, made by the appellants to the District Judge, could have been treated as suits, in this regard, what needs to be noted is that a suit is registered on the basis of a point. Order VII of the Code lays down as to what the contents of a plaint shall be, Order VII, Rule (1) makes it clear that a plaint shall contain name of the Court in which the suit is brought, the name, description and place of residence of the plaintiff, the name, description and place of residence of the defendant, so far as they can be ascertained, where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect, the facts constituting the cause of action and when it arose, the facts showing that the Court has jurisdiction, the relief which the plaintiff claims, where the plaintiff has allowed to a set-off or relinquished a portion of his claim, the amount so allowed or relinquished and a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fee, so far as the case admits.

61. In the two cases of hand, all necessary, particulars, which are required to be present in a plaint, were available. The applicants stated the facts, which constituted cause of action, and also the dates, when the cause of action arose. The application disclosed the reliefs, which had been sought for by the claimant-appellants. What was missing, in the two claim applications, was, at the most, the statement of the value of the subject-matter of the suit for the purpose of jurisdiction and court-fees. In this regard, what is of utmost importance to note is that the Code is a body of procedural law and not substantive law. All the rules of procedure are handmade of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the course of justice. A procedural law should not ordinarily, be construed as mandatory. The procedural law is always subservient to and is in aid of justice. Any interpretation, which eludes or frustrates, the recipient of justice, should be avoided See Shreenath v. Rajesh . Procedural law is not to be a tyrant, but a servant; not an obstruction, but an aid to justice. The rules of procedure are made to advance the cause of justice and not to defeat it, construction of a rule or procedure, which promotes justice and prevents miscarriage has to be preferred. See Sreenivas Basudev v. Vineet Kumar Kothari .

62. In the backdrop of the facts discussed above and the position of procedural law relevant thereto, when we consider the present two cases, we notice that the applications filed by the claimant-appellants could have been treated as suits. In such circumstances, the mere fact that the claimants did not present the plaint in terms of the contents of Order VII, and did not pay court-fees as were payable in the case of suits, the jurisdiction of the District Judge to treat the plaint as suits and/or to decide the suits in accordance with law was not necessarily lacking. As the claim applications satisfied the requirements of a plaint, the suits could have been registered and on the basis of such claim applications, the learned District Judge had the jurisdiction to try the suits and the learned District Judge had, indeed, tried the suits. Hence, the orders, which have been finally passed by the learned District Judge, awarding compensation, can be safely treated as decree granted by the Court. When the Court had the jurisdiction, such a decree, though not strictly in accordance with law, cannot be regarded as nullity.

63. What is also of great importance to note is that though a suit is registered on the basis of a plaint, it is not necessary that every suit shall commence with the presentation of a plaint. In the case of suits by indigent persons. Order XXXIII makes it clear that the person, who wishes to institute a suit as an indigent person, shall make an application seeking permission to sue as an indigent person. Such an application shall, however, contain particulars as are required in the case of the plaints. If, upon making necessary enquiry, as Order XXXIII envisages, the Court allows the prayer so made, the application is numbered and registered and, upon such registration, the application shall be deemed to be plaint in the suit, It is, thus, clear that a suit may come to be registered on the basis of an application, which the Court permits to be treated as a plaint. When, in the case of hand, the learned District Judge registered the applications as suits, it is but impossible to infer that the applications were not treated as plaints. Viewed thus, when the learned District Judge had the jurisdiction to treat an application as a plaint and when the contents of the applications satisfied the requirements of plaint and when, upon the suits being registered, evidence was recorded and orders have been finally passed, it is difficult for us to treat the orders, so rendered, not as decrees and/or hold these orders, which, are, otherwise, decrees, as nullity.

64. There is yet another aspect of the present Letters Patent Appeals, which needs some observations from our end. We have already held that in view of the fact that the learned District Judge, as the principal Civil Court, had the jurisdiction in the matter of granting compensation to a person, who is entitled to a compensation under the substantive law of the land, namely, the Act of 1855, we are not willing to set aside the final order passed. In this regard, merely on the ground that a formal plaint had not been presented by the appellants herein as claimants. What, however, disturbs us is that we are told at the bar, and even the learned Advocate General concedes, that it has been the practice, in the State of Tripura, to file application seeking compensation, under the Act of 1855, to the District Judge and the District Judge, upon hearing the parties concerned, passed appropriate order on such application. This practice, as we have already indicated above, is incorrect in law for, a substantive right to realize compensation, under the Act of 1855, can be exercised only by instituting a suit in the civil Court of competent jurisdiction. Having not done this, the impugned awards (which we have, for the reasons assigned, treated as decrees), are not entirely in accordance with law.

65. Our decision that it is only by means of suits that compensation, under the Act of 1855, can be claimed may have the effect of upsetting the orders, which have become final and have been acted upon by the parties concerned. We are clear in out mind that though incorrect, the system, having been followed for a long time, shall be discontinued forthwith; but the orders, which have already become final, shall not be rendered ineffective. We derive the strength for the direction, which we so intent to give, from the maxim 'communis error facit jus'. The principle underlying the maxim is that "the law so favours the public good, that it will in some cases permit a common error to pass for right". This maxim was applied by the Apex Court in Raman Nadar Viswanathan Nadar v. Snehappoo Rasalamma . In Raman Nadar Viswanathan Nadar (supra), a three-Judge Bench of the Supreme Court, having noticed that under Hindu Law, a bequest to an unborn person or person, not in existence, had been held to be void. Although there was no authority, in Hindu Law, to justify the doctrine that a Hindu cannot make a gift or bequest for the benefit of an unborn person, yet this doctrine was engrafted, on Hindu Law, by the decision of the Judicial Committee in the famous Tagore's case (1872) Ind App Supp 47 (PC). The Supreme Court, in Raman Nadar Viswanathan Nadar (supra) clearly held that the decision, in Tagore's case, was based on wrong reading of the relevant verse in Dayabhaga, but since the decision stood a great length of time and on the basis of that decision, rights had been regulated, arrangement as to property had been made, entitlement to properties have passed, the Supreme Court, relying upon the maxim 'communis error facit jus', did not disturb the actions, which had already been taken on the basis of the wrong decision in Tagore's case. The application of this maxim is also traceable In the speech of Lord Blackburn in his speech in Charies Dalton v. Henry P. 812 as follows:

I quite agree with what is said by the late Chief Justice Cockburn, (1877) 3 QBD 85 p. 105, that where the evidence proved an adverse enjoyment as of right for twenty years, or little more, and nothing else, 'no one had the faintest belief that any grant had ever existed, and the presumption was known to be a mere fiction'. He thinks that thus to shorten the period of prescription without the authority of the Legislature was a great judicial usurpation. Perhaps it was. The same thing may be said of all legal fictions, and was often said (sith, I think, more reason) of recoveries. But I take it that when a long series of cases have settled the law, it would produce intolerable confusion if it were to be reversed because the mode in which, it was introduced was not approved of even where it was originally a blunder and inconvenient, communis error facit jus.

66. Thus, taking a cue from the decision in Tagore's case (supra), we make it clear that relying upon what we have held in this case, the final orders, which might have, in the meanwhile, been passed and have attained finally, shall remain undisturbed and the actions, taken on the basis of such orders, shall also remain intact. The practice, hitherto adhered to by the Courts of the District Judge, in the State of Tripura, shall, however, be stopped forthwith and shall not henceforth be permitted to continue.

67. In the result and for the reasons discussed above, these appeals succeed. The impugned appellate orders are hereby set aside and the appeals are remanded to the learned first appellate Court for decision on the question as to whether the amounts of compensation, awarded in favour of the claimants-appellants, call for interference in law and if so, necessary order(s) may be passed in this regard.

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