Rahul MCD & Ors. v. Rajhnder Thankur; Surender Shah v. MCD & Ors.

1. Exemptions 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)

2. For 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. 40576/2017 in 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) CMI Nos. 8/2017, 9/2017 and 10/2017 Page 2 of10

3. Since the petitioners were pursuing the remedy ofreview petitions, and delays have occasioned in filing of these CMIs on account ofpendency and disposal ofthe review applications, delays in filing the 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.nHpr Order XLIV Rule[1] CPC)

4. These applications are 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 plaintiff to sue as an indigent/pauper then such permission continues for the appeal.

5. These CMIs are therefore allowed and the matters be categorized as RFAs and be numbered accordingly.

6. C.Ms, stand disposed of. RFA No.1^^/2017(to be numbered as ordered in CMI No.8/2017 7 Phis first appeal is filed under Section 96 ofthe Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit impugning the judgment of the trial court dated 11.8.2014. By the impugned judgment the suit filed by the appellant/plaindffseeking compensation CMINos. 8/2017, 9/2017and 10/2017 Page 3of10 and damages against Municipal Corporation of Delhi (MCD)/respondent no.1/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.l in the suit i.e MCD and which entity is the respondent no.l in this appeal.

8. The facts of the case are that the appellant/plaintiff is a minor and he filed the suit through his father and next fi*iend seeking damages on account offact that on 28.12.2002 at about 8AM a fire broke out in the factory ofthe respondent no.3/defendant no.3. It was pleaded in the plaint that the factory was illegally and unauthorizedly being run by the respondent no.3/defendant no.3 without any licence. The factory of respondent no.3/defendant no.3 was pleaded to be manufacturing glasses and was being run unauthorizedly in a residential area. The fire occasioned in the factory of respondent no.3/defendant no.3 was on account of blast of boiler which was installed in the factory. The appellant/plaintiff is pleaded to have CMINos. 8/2017, 9/2017and10/2017 Page*of10 severe bum injuries to the extent of80%. Itwas pleaded in the plaint that the respondent nos.l and 2/defendant nos.l and 2 ought to have ensured thatthefactory oftherespondent no.3/defendant no.3 was not allowed to function from the residential areainviolation of lawbutthe respondent nos.l and 2/defendant nos. 1 and 2 failed to take any action. Appellant/plaintiff was pleaded to be around 10 years at the time ofaccident. In the plaint, itwas therefore pleaded that because of negligence of the respondent nos. 1and 2/defendant nos.l and 2 as also the respondent no.3/defendant no.3, the appellant/plaintiff has sustained bum injuries, therefore, a sum of Rs. 15 lacs damages be awarded in favour of the appellant/plaintiff and against the respondents/defendants.

9. The injury of the appellant/plaintiff was occasioned on account offire in the factory ofthe respondent no.3/defendant no.3 on 28.12.2002. The subject suit was filed on 4.6.2010. The suit was therefore filed after around 7 '/a years of the incident on 28.12.2002. The issue is that whether the suit is time barred, and therefore, the suit plaint should be rejected under Order VII Rule 11 CPC.

10. It is seen that the appellant/plaintiffhad filed a civil writ petition in this Court bearing no.748-50/2006 on 17.1.2006 and 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 period of pendency of the writ petition in this Court from 17.1.2006 till 25.8.2009 is excluded by giving the appellant/plaintiff benefit of Section 14 of the Limitation Act, 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 would be either one year orthree years interms ofArticles 72and 113 of the Limitation Act, andwhichArticles read as under:- Article Description ofsuit Period of Limitation Time from which period begins to run

72 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.

113. Any suit for which no period of limitation is provided elsewhere in this Schedule Three years When the right to sue accrues.

11. As per Article 72 of the Limitation Act, when a suit is filed seeking compensation on account ofomission by an authority to do an act in pursuance of any enactment, then the suit has to be filed within one year when the act or omission took place. The act or CMI Nos. 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 incurred on the injuries pleadedto be causedto the appellant/plaintiff

12. Therefore, looking at 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 filed within one year ofthe date ofthe incident on 28.12.2002 or even ifthe suit had to be filed within three years ofthe date ofthe incident and that the plaint is completely silent as regards the cause ofaction of the details of the injuries and expenditure on treatment, the suit therefore filed on 4.6.2010, even ifis taken to have been filed when the writ petition was filed on 17.1.2006, such asuit having been filed beyond three years of arising of the cause of action was hence time barred. Iffact, the suit can be at best said to have been instituted on 17.1.2006 when the writ petition was filed plus the period from 25.8.2009 (when the writ petition was withdrawn) till 4.6.2010 (when the subject suit was filed) and therefore, effectively the suit is filed after around 3V[2] years of the incident. Trial court has therefore committed no illegality in holding the suit to be barred by time by making the following observations:-

4 That to decide the application under consideration, the brief material facts ofthis suit are that the plaintiff has filed the suit for damages and compensation against the defendant No.1,[2] and 3stated therein that the plaintiff (master Rahul) has sustained mjuries mthe tire accident took place on 28.12.2002 at about 8a.m. in the factory of the defendant No.3 namely M/s R.K. Plastic at Samay Pur, Badlu Delhi and the accident took place due to criminal neghgence on the part of defendant No.l and 2 as permitted by ^he defendant No.3 to run an illegal factory at Samay Pur, Badli, Delhi. It is further stoted that on 28.12.02 at 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 unauthorisedly and the defendant No.3 was running the said factory without any licence from MCD or from Delhi Police and because of CMINos. 8/2017, 9/2017and10/2017 ® o the negligence of the defendants the plaintiffsustained bum injuries on his person.

5. That 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.