AMJAD HUSSAIN KHAN Versus MUHAMMAD HANIF

ORDER

1. Facts set out in the plaint of the suit for recovery of damages, in brief are:‑ Car No. 4794/LEM belonged to plaintiff, Al‑Haj Rana Amjad Hussain Khan. On 11‑4‑1985, it was driven by his driver Muhammad Sarfraz, when it met with an accident with bus No. 1255/LEM owned by Haji Muhammad Hanif and driven by Muhammad Ashraf. In the accident, not only the driver of the car but its four inmates also lost their lives. Two children also suffered injuries. Car was totally smashed. It was stated that accident took place because of rash and negligent driving of the bus by its driver. Driver of the bus was tried for the offences but was acquitted of the charges under section 249‑A of the Criminal Procedure Code by the Magistrate, on 8‑10‑1986.

2. On 3‑10‑1987, plaintiff brought a suit for recovery of Rs. 24,950 as damages assessed for the loss caused to his car. To the suit, owner of the bus and its driver was added as defendants 1 and 2. They resisted the suit. Amongst other pleas, they submitted that the suit being filed under Fatal Accidents Act was barred by limitation. On 4‑5‑1988, the trial Court rejected the plaint, in the suit for damages, under Order VII, rule 11, Civil Procedure Code. It held that the suit was filed under the Fatal Accidents Act, Article 21 of the Limitation Act applied to it and the same having been brought after one year from the date of accident was barred by limitation. Lower appellate Court also shared this view and dismissed the appeal, on 21‑10‑1989. Against this decision, petition in revision has been filed.

3. There is no doubt that the suit for damages for the loss caused to the car, in result of the accident did not fall under the Fatal Accidents Act. Therefore, Article 21 of the Limitation Act did not apply to it. To the contrary, cause is squarely covered by Article 36 of Schedule 1 of the Limitation Act. Article 36 reads:‑‑

4. "For compensation ??????? for any ????????????? Two years. ????????????????????? When the malfeasance, malfeasance, ???? misfeasance or ???????????????????????????????????????????????????? misfeasance or non‑ ???????????????????????????????? ????????????

5. ? nonfeasance independent of ??????????????????????????????????????????????????????? feasance takes place. ?????????????????????????????????????????? contract and not herein specially ??????????????????????? ??????????????????????????????????????????????????????????? ????????????????????? provided for. ???????????????????????????????????????????????????????????????????????????????????????

6. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????

7. Learned counsel for the petitioner also concedes that upon the averments in the plaint, Article 36 of the Limitation Act applied which gave two years to the plaintiff from the commission of the accident to sue for damages. Apart from the above concession, the view as to application of Article 36 is supported by the cases of Corporation of Madras, by its Commissioner v. B.D. Kothandapani Chetty A I R 1958 Madras 620, India General Navigation and Railway Co., Ltd. v. Akram and others P L D 1960 Dacca 321, Dominion of India v. Central Aerating Gas Company Ambala Cantt. A I R 1964 All. 243. Suit was filed on 3‑10‑1987, that is to say, long after expiry of two years but just within three years from the date of accident. Therefore, from the statement of facts in the plaint, suit clearly appeared to be barred by limitation, and, if the Court gave effect to it, it committed no illegality. Rather, in terms of section 3 of the Limitation Act, where the bar of limitation was apparent on the face of proceedings, the Court was obliged to look into the question of its own accord. Upon the above view, impugned judgments do not suffer from any error of jurisdiction or violation of any procedural law, existence whereof was essential for invocation of revisional jurisdiction. Civil revision discloses no serious merits in it. Consequently, it is dismissed in limine.

8. AA./A‑951/L ?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.