Tripura High Court
Md. Abdul Aziz vs The State Of Tripura on 24 October, 2017
Author: S. Talapatra
Bench: Chief Justice, S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
RFA No.15 of 2013
Md. Abdul Aziz,
Son of Md. Abdul Mukhtadir, resident of
village & P.O. Irani, P.S. Kailashahar,
District-North Tripura
......... Appellant
-Versus-
1. The State of Tripura,
represented by the Chief Secretary,
Government of Tripura, Agartala,
Tripura
2. District Magistrate & Collector,
South Tripura, Udaipur
3. Tripura State Electricity Corporation Limited,
represented by the Managing Director
of the Corporation, Bhuturia Area,
Krishnanagar, Agartala
4. The Senior Manager,
Gumti Electrical Sub-Division No.II,
Jatanbari, P.S. Nutanbazar, Amarpur
Sub-Division, South Tripura
........ Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioners : Mr. A. Dasgupta, Advocate
For the respondents : Mr. J. Majumder, Advocate
Date of hearing & delivery
of Judgment & Order : 24.10.2017
Whether fit for reporting : YES NO
√
JUDGMENT & ORDER (ORAL)
(S. Talapatra, J) This appeal arises from the judgment dated 27.04.2013 delivered in Money Suit No.03 of 2011 by the Civil [2] Judge, Sr. Division, Udaipur, South Tripura, now Gomati Judicial District.
[2] The plaintiff, the appellant herein, filed the suit for realization a sum of `5,70,00,000/- as compensation for reckless and negligence activities and consequential damage of the valuable property of the plaintiff and also for loss of the future income with interest @12% per annum.
[3] The brief fact leading to the cause for filing the suit may be noted at the outset.
The plaintiff was one of the owners of the Elephant which died on 09.05.2008 due to cause of electrocution at Ram Bhadra Tilla area while it went there for grazing. The plaintiff and two others namely, Md. Abdul Hai and Md. Abdul Hadi purchased the said elephant from one Md. Abdul Sattar of village Khaora Bill under Kailashahar Police Station by executing proper instrument. Strangely, the other two owners are not impleaded as the plaintiffs. Even there is no assertion in the plaint there is any authority by them to institute the suit. The plaintiff used to earn his livelihood by utilizing the service of the said elephant. The plaintiff took the elephant from Kailashahar to Maharani for business. On the fateful day, on 09.05.2008, the plaintiff sent the elephant for grazing. There the said elephant got electrocuted by the live 33KV electric wire and the said elephant died instantaneously. According to the plaintiff, for the said electrocution, the principal defendants are entirely responsible RFA No.15 of 2013 Page 2 of 8 [3] because they did not maintain the proper and safe height for such high vault line. Thus, they were negligent and for their negligence, the elephant's life came to an abrupt end, causing serious damage to the plaintiff. One police case was registered being Natunbazar P.S. Case No.13 of 2008 under Section 429 of the IPC against the Manager and others of the Tripura State Electricity Corporation Limited. In that case, the chargesheet was filed. The trial court on benefit of doubt, acquitted them by observing as under:
―....there is really no substantive and clinching evidence on record to prove that the electrocution of the elephant was caused due to fault and negligence act of the accused or the accused had an intention or knowledge of likelihood to cause death of the elephant of the complainant.‖ [4] The appellant filed the suit on 31.05.2011 whereas the cause of action admittedly arose on 09.05.2008. the plaintiff-appellant had calculated the damage on the basis of his earning from the said elephant at `2500/- per day and thus, loss of earning was reckoned at `21,25,000/- till 31.03.2011. According to the appellant, the loss is continuing inasmuch as the lifespan of the elephant is 120 years.
The respondents No.3 and 4 resisted such claim seriously by filing the written statement. According to those respondents, no ownership certificate was issued to the plaintiff- appellant under the provisions of Wild Life (Protection) Act, 1972. Further, in Para-9 of the written statement they have categorically stated that plaintiff-appellant being one of the owners cannot institute the suit, inasmuch as he was only authorized to look after the said elephant. The death of the said RFA No.15 of 2013 Page 3 of 8 [4] elephant by electrocution was seriously disputed by the respondents No.3 & 4. They had also disputed that the income as shown would attract payment of the income tax but no such material has been filed with the plaint. That apart, having referred to the testimony of Dr. Tapash Kanti Ghosh [PW-6] in GR case No.61 of 2008, those respondents have clearly stated that the said Veterinary Surgeon has stated that the cause of death of the said elephant by live electric shock was suggestive, but not conclusive. The said Veterinary Surgeon did not find any injury on the body of the elephant. If the electrocution at all occurred, should there have been burn injuries on its body. The performance quotient of the said elephant has been denied. In Para-18 of the written statement, those respondents have categorically stated that for death of the elephant no negligence or recklessness can be attributed to the respondents No.3 & 4. They have denied the claim of plaintiff-appellant about the lifespan of the elephant and its earning capacity etc. The ownership of the elephant, according to those respondents, are to be proved as per Section 40,41 and 42 of the Wild Life (Protection) Act, 1972. The cause of action according to them cannot commence from the date of notice under Section 80(1) of the CPC but strictly from the date of death i.e. 09.05.2008. The suit according to them is liable to be dismissed. The other respondents did not file any written statement. [5] After recording the evidence of plaintiff-appellant [PW-1 to PW-12] and admitting the documentary evidence RFA No.15 of 2013 Page 4 of 8 [5] [Exbts.1 to 18] the Civil Judge, Sr. Division, Udaipur, South Tripura dismissed the suit on observing as under:
"As the plaintiff's side has failed to prove independently that the elephant has died due to electrocution by an expert evidence, hence, it cannot be said that the elephant of the plaintiff, namely, Gulab Sundar (Datal) died due to electrocution due to negligent act of the defendant Nos.3 and 4 of this case. As the plaintiff's side has failed to prove that the defendants of this case were liable for death of the elephant due to their negligence, hence, the plaintiff's side is not entitled for getting any compensation in this case as claimed by them. Moreover, in Issue No.(1) which is relating to the maintainability of this present suit it is already discussed that the suit filed by the plaintiff is barred by the law of limitation.‖ [6] Mr. A. Dasgupta, learned counsel appearing for the plaintiff-appellant has submitted that he has no instruction from the plaintiff-appellant. However, Mr. Dasgupta, learned counsel has submitted that the trial court has misconceived the provision of Limitation Act. The plaintiff-appellant will have the period of notice which the plaintiff-appellant had served on the respondents under Section 80(1) of the C.P.C for purpose of filing the suit. Mr. Dasgupta, learned counsel has submitted that the elephant died on 09.05.2008 and the period of 3 years was supposed to end on 08.05.2011. The plaintiff-appellant claimed to have served the notice upon the defendants, the respondents of the instant appeal on 01.04.2011 and he had filed the suit on 31.05.2011. So there was no scope for the court of the Civil Judge to declare the suit of the plaintiff-appellant as barred by the provisions of Limitation Act.
[7] In this appeal, the fundamental ground that has been projected by the plaintiff-appellant is against the finding RFA No.15 of 2013 Page 5 of 8 [6] returned by the trial court that the suit is barred by the provisions of Limitation Act. Mr. Dasgupta, learned counsel has submitted that in terms of the provisions of Section 15(2) of the Limitation Act, the plaintiff-appellant would be entitled to get exclusion of 60 days from the period of limitation. For reference, Section 15(2) of the Limitation Act is extracted hereunder:
―(2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.
Explanation.--In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted.‖ [8] There cannot be any amount of dispute that the death of the elephant occurred on 09.05.2008 and the notice under Section 80(1) of the C.P.C. was issued on 04.05.2011 whereas as stated the suit was filed on 31.05.2012. Section 80(1) of the CPC provides that:
Notice.- (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of--
(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;
(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;RFA No.15 of 2013 Page 6 of 8 [7]
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;
and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
[9] From the plaint, it further transpires that on 01.04.2011, the notice was issued under Section 80(1) of the CPC and the suit was filed on 31.05.2012. Whether that period can be excluded in terms of Section 15(2) of the Limitation Act? Under Section 3 of the Limitation Act, the public policy that has been declared clearly provides that 'every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.' Section 4 of the Limitation Act provides as under:
―Expiry of prescribed period when court is closed.- Where the prescribed period of any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.‖ In the schedule of the Limitation Act, description of the suit, period of limitation and the time from which the period of limitation starts to run has been given. The suit that has been filed by the plaintiff-appellant is not an ordinary money suit for breach of contract or for recovering money secured by the mortgage etc. [10] On scrutiny what emerges is that there is no proof that the notice under Section 80(1) of the CPC was served on the respondents No.3 & 4 as there was no acknowledgement RFA No.15 of 2013 Page 7 of 8 [8] on behalf of the respondents No.3 and 4. On the contrary, there is strong denial of service. Unless there is a valid notice, no deduction/exclusion can made from the period of limitation under Section 15(2) of the Limitation Act. The notice under Section 80(1) of the CPC even does not carry along with any registration slip to show that the notice was tendered for registration. It appears that the said notice has been manufactured for purpose of instituting the suit. As such, this court is of the considered view that no exclusion of time is entitled to the plaintiff-appellant under Section 15(2) of the Limitation Act, 1963.
[11] Having observed thus, this court would also notice that that the death of the elephant had taken place on 09.05.2008 and the cause of action has definitely arisen on that day, but the suit was filed on 31.05.2011, much beyond the period of limitation. We have given reason above why the suit is barred under Section 3 of the Limitation Act. We do not find any infirmity in the finding of the trial court in this regard and hence, the appeal is dismissed.
Draw the decree accordingly.
Transmit the LCRs thereafter.
JUDGE CHIEF JUSTICE
Sujay
RFA No.15 of 2013 Page 8 of 8