Rahul v. Mcd & Ors

VAIMIKI J. MEHTA, J C.M. Appl. No. 40360/2017 (for exemption'^ m CMI No. 8/2017 C.M. Appl. No. 40363/2017 (for exemption) in CMI No. 9/2017 C.M. Appl. No. 40366/2017 (for exemption) in CMI No. 10/2017

¶1Exemptions allowed, subject to all just exceptions. CMs. stand disposed of C.M. Appl. No. 40362/2017 ia CMI No. 8/2017 C.M. Appl. No. 40365/2017 in CMI No. 9/2017 C.M. Appl. No. 40368/2017 in CMI No. 10/2017 (for (.'ondonatiori of delay of 6 days in re-filing)

¶2For the reasons 3fate_d in the applications the same arc allowed and the delay of six days in re-filing the CMIs stand condoned. C.M. Appl. No. 40577/2017 in CMI No. 8/2017 C.m" Appl. No. 40576/2017in CMI No. 9/20n C.M. Appl. No. 40575/20)7 in CMI No. 10/2017 (fot. condonation of delay of 1142 days in filing) CMINos. 8/2017, 9/2017 and 10/2017 Page 2 of10

¶3Sincethe petitionerswere pursuingthe remedyof review petitions, and delays have occasioned in filing of these CMIs on accountofpendencyand disposalofthe reviewapplications,delays in filingthe CMIs are condoned. C.Ms, stand disposed of. CMI No. 8/2017 and C.M. AppI. No. 40361/2017 CMI No. 9/2017 and CM. AppI. No. 40364/2017 CMI No. 10/2017 and C.M. AppI. No. 40367/2017 (i.nHprOrder XLIVRule1 CPC)

¶4These applicationsare allowed and appellants/plaintiffs are allowed to sue as pauper. It is noted that as per Order XXXIII CPC if in a suit permission is given to the plaintiffto sue as an indigent/pauperthen suchpermissioncontinuesfor the appeal.

¶5These CMIs are therefore allowed and the matters be categorizedas RFAs and be numberedaccordingly.

¶6C.Ms, stand disposed of. RFA No.1^^/2017(to be numberedas orderedin CMI No.8/2017 Phis first appeal is filed under Section96 ofthe Code of Civil Procedure,1908 (CPC)by the plaintiffin the suit impugningthe judgment of the trial court dated 11.8.2014. By the impugned judgmentthe suitfiledby the appellant/plaindffseekingcompensation CMINos.8/2017,9/2017and10/2017 Page3of10 and damages against Municipal Corporation of Delhi

(MCD)/respondentno.1/defendant no.l, Government of National Capital Territoryof Delhi (GNCTD)/respondentno.2/defendantno.2 and Sh. Tilak Raj Khanna the owner of the factory R.K. Plastics Factory/respondentno.3/defendantno.3 has been dismissedas it was barred by time. The suit plaint was rejected by allowing the applicationunderOrderVII Rule 11 CPC filed by the defendantno.l in the suit i.e MCD and which entity is the respondentno.l in this appeal.

¶8The facts of the case are that the appellant/plaintiffis a minor and he filed the suit throughhis fatherand next fi*iend seeking damages on accountoffact that on 28.12.2002at about 8 AM a fire brokeout in the factoryofthe respondentno.3/defendantno.3. It was pleadedin the plaintthatthe factorywas illegallyand unauthorizedly being run by the respondentno.3/defendantno.3 withoutany licence. The factory of respondent no.3/defendantno.3 was pleaded to be manufacturing glasses and was being run unauthorizedly in a residentialarea. The fire occasioned in the factory of respondent no.3/defendantno.3 was on account of blast of boiler which was installed in the factory. The appellant/plaintiffis pleaded to have CMINos.8/2017,9/2017and10/2017 Page*of10 severebum injuriesto the extentof80%. Itwas pleadedin the plaint that the respondentnos.l and 2/defendantnos.l and 2 ought to have ensuredthatthe factoryoftherespondentno.3/defendantno.3 was not allowedto functionfrom the residentialareainviolationof lawbutthe respondentnos.l and 2/defendantnos. 1 and 2 failed to take any action. Appellant/plaintiffwas pleadedto be around 10 years at the time ofaccident. In the plaint,itwas thereforepleadedthatbecauseof negligenceof the respondentnos. 1 and 2/defendantnos.l and 2 as also the respondentno.3/defendantno.3, the appellant/plaintiffhas sustainedbum injuries,therefore,a sum of Rs. 15 lacs damages be awarded in favour of the appellant/plaintiffand against the respondents/defendants.

¶9The injury of the appellant/plaintiffwas occasionedon accountoffire in the factoryofthe respondentno.3/defendantno.3 on

28.12.2002.The subject suit was filed on 4.6.2010. The suit was thereforefiled after around 7 '/a years of the incidenton 28.12.2002. The issueis thatwhetherthe suit is time barred,and therefore,the suit plaintshouldbe rejectedunderOrderVII Rule 11 CPC.

¶10It is seen that the appellant/plaintiffhad filed a civilwrit petitionin this Courtbearingno.748-50/2006on 17.1.2006and which cmNos.8/2017,9/2017and10/2017 PageSof10 was allowed to be withdrawn vide order dated 25.8.2009 with liberty to file a suit. The periodof pendencyof the writ petitionin this Court from

17.1.2006 till

25.8.2009 is excluded by giving the appellant/plaintiffbenefit of Section 14 of the LimitationAct, even then the subject suit which was filed on 4.6.2010 was barred by limitation because the limitation period for filing the present suit wouldbe eitherone yearorthreeyears intermsofArticles72and 113 of the LimitationAct, andwhichArticlesread as under:- Article Description of suit Period of Limitation Time from which period begins to run For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in the territories to which this Act extends One year When the act or omission takes place.

¶113Any suit for which no period of limitation is provided elsewhere in this Schedule 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 pursuanceofany enactment,then the suit has to be filed within one year when the act or omission took place. The act or CMINos. 8/2017, 9/2017 and 10/2017 Page 6 of10 V\ omission in this case would be the date of the accident i.e 28.12.2002 when the fire took place in the factory of the respondent no.3/defendant no.3 which was said to be running without requisite license or permission, and which are required under the relevant Statutes. The suit, therefore, should have been filed within one year of

28.12.2002. Even assuming that suit could have been filed under Article 113 of the Limitation Act after injuries were treated, such a suit should have to be filed within three years of the injuries being treated. In the suit plaint, there is no averment as to when were the injuries treated and what are the dates of treatments. In the subject suit once damages are claimed for injuries then the suit ought to have pleaded a cause of action with respect to the expenditure incurred for treatment, however, there is no such cause of action laid down in the plaint where only a figure of Rs.15,00,000/- in lumpsum is arbitrarily claimed without giving reasons and cause of action as to how the amount of Rs.15,00,000/- is arrived at. The suit plaint therefore in fact lacks cause of action of a claim of damages on account of expenditure incurredon the injuriespleadedto be causedto the appellant/plaintiff

¶12Therefore,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, 9/2017and 10/2017 Page7ofl0 J filedwithinone yearofthe dateofthe incidenton 28.12.2002or even ifthe suithad to be filed withinthreeyearsofthe date ofthe incident and thatthe plaintis completelysilentas regardsthe causeofactionof the details of the injuries and expenditure on treatment, the suit thereforefiled on 4.6.2010,even ifis taken to have been filed when the writ petitionwas filed on 17.1.2006,suchasuithavingbeen filed beyondthree years of arisingof the cause of action was hence time barred.Iffact, the suit can be at best said to have been institutedon

17.1.2006 when the writ petition was filed plus the period from

25.8.2009(whenthe writpetitionwas withdrawn)till 4.6.2010(when the subjectsuit was filed) and therefore,effectivelythe suit is filed after around 3V2 years of the incident. Trial court has therefore committedno illegalityin holdingthe suit to be barred by time by makingthe followingobservations:- That to decide the application underconsideration,the brief materialfactsofthis suitare thatthe plaintiff has filed the suit for damages and compensationagainstthe defendantNo.1,2 and 3stated thereinthat the plaintiff(masterRahul)has sustainedmjuriesmthe tire accidenttook place on 28.12.2002at about 8a.m. in the factory of the defendantNo.3 namely M/s R.K. Plastic at Samay Pur, Badlu Delhi and the accidenttook placedue to criminalneghgenceon the part of defendant No.l and 2 as permitted by ^he defendantNo.3 to run an illegalfactoryat Samay Pur, Badli,Delhi. It is furtherstotedthat on 28.12.02at about 8;00am the fire took place mthe factoiy M/s R.K. Plastic which is run by the defendant No.3 herein illegally and unauthorisedlyand the defendant No.3 was running the said factory withoutany licencefrom MCD or from Delhi Police and because of CMINos.8/2017,9/2017and10/2017 ® o the negligence of the defendants the plaintiff sustained bum injuries on his person.

¶5That by way of the aforesaid application U/o 7 rule 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 compensation the limitation to file the suit is of "three years" starts from the date of incident the incident admittedly took place on 28.12.02 the plaintiff ought to have file the suit for damages and 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 withdrawn from the Hon'ble High Court is calculated and reduced from total period of limitation even then this suit is barred by the period of limitation.

¶7Admittedly, the fire incident took place on 28.12.12andthe Civil Writ was filed on 17.01.06and to file the writ itself has no periodof limitation but suit has to be filed within period of 3 years from the date of incident i.e. 28.12.02.

¶8Perusal of record it reveals that an application U/s 5 for condonationof delay to file the present suit has been filed by the plaintiff with this suit and as per Provisions of Sec.5 of Limitation Act, it applies only on application and appeals and not for filing of the suit.

¶9Therefore, in view of the discussion the application U/o 7 rule 11 r.w.s. 151 of CPC being moved by the defendant no.l is hereby allowed and the suit of the plaintiff is beyond Limitation therefore, plaint of the plaintiffis herebyrejectedbeingbarredby limitation."

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

¶14Adopting the reasons already given above mutatis mutandis,this appealalso has no meritand is accordinglydismissed. CMINos.8/2017, 9/2017 and 10/2017 Page 9 of10 RFA No. /2017 (to be numbered as ordered in CMl No.9/2017

¶15This appeal is dismissed while adopting the reasons given 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 from the date of the incident when the death took place and therefore for this additional reason, besides the reasons given in aforesaid RPA/CMI No.8/2017, this appeal is liable to be and is accordingly dismissed. NOVEMBER 28, 2017 VALMIKI J. MEHTA, J ib/^K. CMINos. 8/2017, 9/2017and 10/2017 PagelOoflO ,<

> + % + 4- 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 MCD & ORS. Through: versus through: CMI No. 9/2017 RAJHNDER THANKUR Through: versus MCD & ORS. Through: CMI No. 10/2017 SURENDER SHAH Through: versus Petitioner Ms. Samai Malik, Advocate. Respondents Mr. Rakesh Mittal, St. Counsel with Ms. Kamlesh Anand and Ms. Yamini Mittal, Advocates forR-l/NDMC. Ms. Sakshi Popli, Advocate for R-2/GNCTD. Petitioner Ms. Samai Malik, Advocate. Respondents Mr, Rakesh Mittal, St. Counsel with Ms. Kamlesh Anand and Ms. Yamini Mittal, Advocates forR-l/NDMC. Ms. Sakshi Popli, Advocatefor R-2/GNCTD. Petitioner Ms. Samai Malik, Advocate. CMI Nos. 8/2017, 9/2017 and 10/2017 Page 1 of10 i MCD & ORS. Respondents Through: Mr. Rakesh Mittal, St. Counsel with Ms. Kamlesh Anand and Ms. Yamini Mittal, Advocates forR-l/NDMC. Ms. Sakshi Popli, Advocate for R-2/GNCTD. CORAM: HON'BLE MR. JUSTICE VALMiKI J.MEHTA To be referred to the Reporter or not?