Rajender Thankur v. Mcd & Ors

ij * IN THE HIGH COURT OF DELHI AT NEW DELHI + CMI No. 8/2017 CMI No. 9/2017 CMI No. 10/2017 % Reserved on: 23"* November,2017 Pronounced on: 28"' November,2017 + CMI No. 8/2017 . RAHUL Petitioner Through; Ms. Samai Malik, Advocate. versus MCD.&ORS. Respondents Through: : -Mr. Rakesh Mittal, St. Counsel ,. with Ms. Kamlesh Anand and • Ms, Yamini Mittal, Advocates • ^- ^Ifbrfcl/NDMC. ; ., Ms. Sakshi Popli, Advocate for jEi^GNCTD. -I- ^C^MlNo. 9/2017 . 1-' ., RAJENDER THANKURV :: v. Petitioner Throiig|: .;rMl;!SaniaiMalik,Advoca^^ versus - - \ ' MCD & ORS. .- :v' Respondents Through:?';; Mr. Rakesh Mittal, St. Counsel with Ms. Kamlesh Anand Ms. Yamini Mittal, Advocates forR-l,/NDMC. Ms. Sakshi Popli, Advocate for . . R-2/GNCTD. • + CMI No. 10/2017 SURENDER SHAH Petitioner Through: Ms. Samai Malik, Advocate, versus CMINos.8/2017, 9/2017 and 10/2017 Page 1 of10 MCD & ORS. Respondents Through; Mr. Rakesh Mittal, St. Counsel with Ms. Kamlesh Anand Ms. Yamini Mittal, Advocates forR-l/NDMC. Ms. Sakshi Popli, Advocate for R-2/GNCTD. CORAM: HON'BLE MR. JUSTICE VALMIia J.MEHTA To be referred to the Reporter or not? VALMIKIJ. MEHTA. J C.M. Apol. No. 40360/2017 (for cxemptibnVin CMI No. 8/2017 C.M. Appl. No. 40363/2017 (for exemptionll in CMl No. 9/2017 ^ C.jvi.Appl.No. 40366/2017(forexemptiohVin CMlNo. 10/2017 1; Exemptionsallowed,stibjecttoailjustexceptions. CMs. standdisposedof :'V ^- C.M. AppI.No. 40362/2017in feMlrte^/2017 ; C.M. AppL No. 403^/2017in;CMr^aM2017 C.M. Appl. No. 40368/2017 in CMl N% 10/2017 (for condpnation of delay of 6 days in re-filing)

¶2V: . : J For the rei^^sons stated:;io#rer^ the same are ^ allowed and the delay of isix day$ in re-filing-the CMIs stand condoned. C.M. AppI. No. 40577/2017 in CMl No. 8/2017 C.M. AppI. No. 40576/2017 in CMl No. 9/2017 C\M. Apti. l\^o. 40575/2017 in CMl No. 10/2017 (for condonation of delay of 1142 days in filing) CMlNos.8/2011,9/2017and10/2017 Page2of10 V

¶3Since the petitioners were pursuing the remedy of review petitions, and delays have occasioned in filing of these CMIs on account of pendency and disposal of the review applications, delays in filing the CMIs are condoned. C.Ms, stand disposed of CMI No. 8/2017 and C.M. Anol. No. 40361/2017 CMI No. 9/2017 and C.M. Appl. No. 40364/2017 CMI No. 10/2017 and C.M. Appl. No. 40367/2017 (under Order XLIV Rule 1 CPC)

¶4These applications arei:allowed and appellants/plaintiffs are allowed to sue as pauper. It is incited.that as per Order XXXIII CPC if in a suit permission is, given to the plaintiff to sue as an indigent/pauper then such permissipn/cohtinues for the appeal.

¶5These CMIs ,are tfi^erefore^ and the matters be categorizedas RFAsandbe numbered'atcordingly.

¶6C.Ms. stand^4i^osed=o|! -^- 7=; ^ RFA No. /2017 (to be numbered as ordered in CMI No.8/2017

¶7This first appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit impugningthe judgment of the trial court dated 11.8.2014. By the impugned judgment the suit filed by the appellant/plaintiff seeking compensation CMINos.8/2017, 9/2017and 10/201? PageSoflO y damages against Municipal Corporation of Delhi

(MCD)/respondent no.l/defendant no.l, Government of National Capital Territory of Delhi (GNCTD)/respondent no.2/defendant no.2 and Sh. Tilak Raj Khanna the owner of the factory R.K. Plastics Factory/respondent no.3/defendant no.3 has been dismissed as it was barred by time. The suit plaint was rejected by allowing the - application under Order VII Rule 11 CPC filed by the defendant no.1 in the suit i.e MCD and which entity is the respondent no.l in this appeal. ' 0;. ^

¶8The facts of the case aris that the appellant/plaintiffis a minor and he filed the suit throughWs father and next friend seeking damages on accountoffaci:1h^:^^C|^ at about 8 AM a fire ..y brokeout in the factory"oftiie rSpoii^erit'^ no.3. It was pleadedin the plaintthat the factorywas illegallyand unauthorizedly being run by the respondentno.3/defehaaritno.3 withoutany licence. ^ The factory of respondentno.3/defendantno.3 was pleaded to be manufacturing glasses and was being nin unauthorizedly in a residential area. The fire occasioned in the factory of respondent nQ.3/defendant no.3 was on account of blast ,of boiler which was installed in the factory.The appellant/plaintiffis pleaded to have v.* . A . ^ CMINos.8/2017, 9/2017and 10/2017 Page4 of10 Of (<^ severebum injuriesto the extentof80%. It was pleadedmthe plaint that the respondentnos.l and 2/defendantnos:i and 2oughtto have ensuredthatthe factoryofthe respondentno.3/defendantno.3 was not allowedto functionfromtheresidentialareainviolationoflawbutthe respondentnos.l and 2/defendantnos. 1and 2 failed to take any action. Appellant/plaintiffwas pleadedto be around 10 years at the timeofaccident. In theplaint,it wasthereforepleadedthatbecauseof negligenceof the respondentiios. 1 nos.l and 2as also the respondentno.3/de^^d^tno.3, the appellant/plaintiffhas sustainedbum injuries,ther&re,a 15 lacs damages be awarded in favour of thd j'appellant/plaintiffand against the respondents/defendants. 'V"' i" ""•An'*'- • The injury of the'^]§pieiii|it^^ was occasionedon accountoffire in the factoryofthe respondei^no.3/defendantno.3 on

28.12.2002.The subject suit•was"fileS'on^'4^^ The suit was thereforefiled after around7 !/2 years ofthe incidenton 28.12.2002. The issueis thatwhetherthe suitis timebarred,andtherefore,the suit plaintshouldbe rejectedunderOrderVII Rule 11 CPC.

¶10It is seen that the appellant/plaintiffhad filed a civilwrit petitionin this Courtbearingno.748-50/2006on 17.1.2006andwhich CMINos.8/2017,9/2017and10/2017 Page5of10 \ V-J V\ was allowedto be withdrawnvide orderdated25.8.2009with liberty to fileasuit. Theperiodofpendencyofthe writpetitionin thisCourt from

17.1.2006 till 25.8.2009 is excluded by giving the appellant/plaintiffbenefitof Section 14 of the LimitationAct, even then the subject suit which was filed on 4.6.2010 was barred by limitationbecause the Hmitation period for filing the present suit wouldbe eitheroneyearorthreeyearsin termsofArticles72 and 113 ofthe LimitationAct, andwhicli.toc^ as under:- Article Descriptionof suit-Period of .'Limitation, Time from which periodbeginsto run . For compensationKiforr doing or for omittirtjgto do an act alleged to be in pursuance of any, enactment in foi-ce f&j the time beingAhr ttil?-: territories to which this Act extends One year' • '' •' .•' t When the act or omission takes place.

¶113Any suit for which no period of limitation is provided elsewhere^-aii, this Schedule '" ii -v Three years When the right to sue accrues.

¶11As per Article 72 of the LimitationAct, when a suit is filed seekingcompensationon accountofomissionby an authorityto do an act in pursuanceof any enactment,then the suithas to be filed within one year when the act or omissiontook place. The act or CMJNos.8/2017,9/2017and10/2017 Page 6 of10 I omissionin this casewouldbe the date of the accidenti.e 28.12.2002 when the fire took place in the factory of the respondent no.3/defendantno.3 which was said to be running without requisite license or permission, and which are required under the relevant Statutes. The suit,therefore,shouldhavebeenfiledwithinoneyearof

28.12.2002. Even assuming that suit could have been filed under Article 113 of the LimitationAct after injurieswere treated, such a suit should have to be filed,within three years of the.injuries being treated. In the suit plaintj theise is no avermentas to when :vvere the injuriestreatedand what arc the dates 9§treatments. In the subject V- - .• j.v suit once damagesare claimedfoi\;rinj,uries'thenthe suit oughtto have pleadedacauseofactionvvf&rbs^ expenditureincurredfor treatment,however,there'<^©.§s&cjifca^|',^factionlaid down in the plaintwhere only a figureofRs.15,00,000/-in lumpsumis arbitrarily claimed without giving"re^on&l^dc^sC^ action as to how the amountofRs.15,00,000/-is arrivedat. Thesuitplaintthereforeinfact lackscauseof actionofa claimof damagesonaccountof expenditure incurredon the injuriespleadedto be causedto the appellant/plaintiff.

¶12• Therefore,lookingat it in any manner of the suit being a cause of action under Article 72 of the Limitation Act and had to be CMINos.8/2017,9/2017and10/2017 Page7of10 •, > filed within one year of the date of the incident on 28.12.2002 or even if the suit had to be filed within three years of the date of the incident and that the plaint is completelysilent as regards the cause of action of the details of the injuries and expenditure on treatment, the suit therefore filed on 4.6.2010, even ifJs taken to have been filed when the writ petition was filed on 17.1.2006,such a suit having been filed beyond three years of arising of the cause of action was hence time barred. If fact, the suit can be ^t best said to have been instituted on

17.1.2006 Avhen the writ petition'w^;M^ the period from

25.8.2009 (when the writ petition was w till 4.6.2010 (when ' •• the subjectsuit was filed) and}therdforCj^effectivelythe suit is filed after around 3^2 years of^th^^nei^^ court has therefore jr: committed no illegality be barred by time by making the following observations:-

¶4That to deciderthqri^capplic^K^:Underconsideration,the brief material facts of this suit are thaf the plaintiff has filed the suit for damages and compensation against the defendant No.1,2 and 3 stated £3 thereinthat the plaintiff(masterRahul) has sustainedinjuriesin the fire accidenttook place on 28.12.2002at about 8 a.m. in the factory of the defendantNo.3 namely M/s R.K. Plastic at Samay Pur, Badli, Delhi and the accidenttook place due to criminalnegligenceon the part of defendant No.l as permitted by the defendant No.3 to run an illegal factory at Samay Pur, Badli, Delhi. It is further stated that on 28.12.02 at about 8:00am the fire took place in the factory M/s R.K. Plastic which is run by the defendant No.3 herein illegally and unauthorisedly and the defendant No.3 was running the said factory without any licence irom MCD or from Delhi Police and because of CMINos.8/2017, 9/2017 and 10/2017 Page 8 of10 D the negligence of the defendants the plaintiff sustained bum injuries on his person.

¶5That by way of the aforesaid application U/o 7 rule 11 of CPC the defendant No.l who is MCD has prayed that suit of the plaintiff beyond period of limitation and the same may kindly be dismissed.

¶6Having heard the arguments advanced by the Ld. counsel for the parties and also perused the case file. This court is of the considered view that the fire incident took place on 28.12.02 as mentioned in the para No.l of the suit of the plaintiff and a Civil Writ was filed in the Hon'ble High Court of Delhi on 17.01.06 but the said Civil Writ was dismissed as withdrawn on 25.08.09 and as per the provisions of law in the case of damages and compensationthe limitationto filethe suit is of "three years" starts from the date of incident the incidentadmittedly took place on 28.12.02 the plaintiff ought to have file the suit for damages compensation till 27.12.05 but they have file the present suit on 04.06.10 and even if the period from filing the Civil Writ and the date when Civil Writ was %ithdr.awh;>fo Hon'ble High Court is calculated and reduced from-total'pei^ibd.of limitation even then this suit is barred by the period of limitation. .

¶7Admittedly, the .B^^^^ place on28.12.:12andthe Civil Writ was filed on li7;0'l';Q6;'an(^|6^^^^ writ itselfhas no periodof limitationbut suit has to be' filedl-within^ of 3 years from the date ofincidenti.e. 28.12.62.1- ;/v ;

¶8Perusal of record it; reveals?-that an application U/s 5 for condonationof delayto file tlieipresentfmt,has been filed by the plaintiff with this suit and as per|I?Ebvisions;;0^^ Act, it applies onlyon applicationand;^peals;aii(i^|Kp® ofthe r'"+ TViPirf^fnrp: in -'iirli^p.iissinn thf : suit.

¶9Therefore, in lidisciission the applicationU^ 7 rule 11 r.w.s. 151 ofCPG'be|ng>'^^^^ defendantno.l is hereby allowed and the suit of the plaintiffis beyond Limitationtherefore,plaint of the plaintiff is hereby rejected being barred by limitation."

¶13In view of the aforesaid discussion,I do not find any merit in the appealandthe same is herebydismissed. RFA No. /2017 (to be numbered as ordered in CMI No.10/2017

¶14Adopting the reasons already given above mutatis mutandis, this appeal also has no merit and is accordingly dismissed. CMlNos.8/2017, 9/2017 and 10/2017 Page9ofl0 n j RFA No. (to be numbered as ordered in CMI No.9/2017

¶15This appealis dismissedwhileadoptingthe reasonsgiven while dismissing the aforesaid RFA which was registered as CMI No. 8/2017. This appeal is also liable to be dismissed because this appeal is filed by the father of the deceased Sh. Brij Kishore who died on

28.12.2002. Once there is death, the entitlement to sue would arise J from the date ofthe incidentwhenthe deathtook place and therefore for this additional reason,, besides jtlie reasons given in aforesaid RFA/CMI No.8/2017,this,ap^eM'isliabletoand is accordingly dismissed. / J n NOVEMBER28,2017 jl [ VALMIKIJ. ibMK. '' CMINos. 8/2017, 9/2017and 10/2017 PagelOoflO