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IN THE HIGH COURT OF BOMBAY
Sharad Manohar, J.
Balbindra Singh Jog Singh.... Appellant.
Versus
Union of India.... Respondent.
F.A. No. 108, of 1976, decided on 13-7-1989.
Advocates appeared :
R.V. Mohile, for appellant.
S.G. Mandrekar, for respondent.
Order XXXIII, Rule 3-Petition-Presentation of- Order granting exemption from personal appearance may be express or implied.
Law relating to limitation in the case of pauper petition examined in the context of the facts of the case: I will first state the facts which are germane for the purpose of resolving the legal question. Admittedly, the last date for limitation to file the suit was 6-8-1971. There is no dispute that the pauper petition (which is now called petition by indigent) was duly filed by the pauper himself in the Court at Thane on 5-8-1971. There is further no dispute that if the Thane Court had jurisdiction to entertain the suit, both the pauper petition as well as the suit would be within limitation. The question of investigation of the indigence of the applicant was taken up by that Court for examination on 26th September, 1972 and on that date that Court found that the petition had to be presented to the Court at Alibag. The petition was accordingly filed by the petitioners learned Advocate in the Court at Alibag immediately on the next day, on 27th September, 1972. What was directed to he presented to the proper Court was not the plaint, but the pauper petition. The question of validity of the presentation was considered by the Court along with the question of the petitioners indigence and the Alibag Court granted the pauper petition.
The provision of Order XXXIII, Rule 3, C. P. C. clearly shows that the Court has got every power to exempt the personal appearance of the indigent petitioner. The exercise of the power can done expressly or by necessary implication by giving him time to appear for making statement before the Court on 4-10-1972. The Court implicitly gave to him the facility of exemption from personal appearance so far as the date 27-9-1972 was concerned. The Court went a step further and even declared him to be an indigent person. After having granted this application for leave to sue as an indigent person, the Court had no justification or even jurisdiction to retrace its step and to condemn the petition as being barred by limitation. The view of the Judge holding that the suit was barred by limitation deserves to be corrected and set aside on this narrow ground itself.
This is not of reasoning. In the first place, the learned Judge had no jurisdiction to go into the question all over again when that question had already been decided by the very Court while examining the petition for adjudication of the plaintiffs indigence. The stage for considering whether the petition was barred by limitation or not had already been crossed.
A mere glance at Order XXXIII, Rule 5 is enough to show that the Court is duty bound to reject an application for permission to sue as a pauper where the allegation made by the applicant in the application shows that on the date of the filing of the pauper petition the suit was barred by law for the time being in force. This would obviously include the bar of limitation contained in the Limitation Act. When the Court did not exercise the said power under Order XXXIII, Rule 5. What was clearly signified was that the Court had held the application to the when the Court to be the bona fide application. It dearly meant that the Court had accepted the petitioners contention that he was entitled to the benefit of Section 14 of the Limitation Act. The entire question had thus been closed on that date, as is ordered by the learned Judge himself, by his order dated 29-6-1973.
The view taken-by the Judge about the absence of good faith and about bona fides cannot be supported even on merits. One cannot say that because the plaintiff, who is just a layman, resided in Kalyan he would be aware that the jurisdiction to file the suit would be vesting in the Alibag Court and not the Thane Court, is meaningless on the face of it. The question as to in which Court the suit is to be filed is to be decided by the Advocate of the party; not by the party. There is not even an imputation that the plaintiff is well versed in the provisions and principles of law. There are certain principles of law which are part of the general law relating to justice and every person is expected to know the position. For instance, every person is demand to know that he cannot go and murder somebody else or cause hurt to anybody else or commit theft of the property of somebody else. Nobody is required to be taught of these provisions of the I. P. C. These laws are the expressions of basic principle, of justice and no one can be heard to say that he was not aware of such provisions of law. Nobody can come to the Court and say that he was not aware that he was not to murder somebody else or help himself with the property of somebody else. But the principles of procedural law is not everybodys cup of tea. This position is recognised by all the jurists and this is the main reason why the institution of Advocates exists. This is the reason why the Supreme Court has repeatedly held that a party should not be penalized for the negligence of his Advocate. I refuse to cite any authority for this purpose, because this rule of law is too deeply entrenched in our corpus juris to need citation of any authority as such. The learned Judge rightly observed that the Advocate for the plaintiff should have known that not the Thane Court but the Alibag Court would be having jurisdiction to entertain the pauper petition. But he was not justified in penalizing the plaintiff for his Advocates fault. One cannot say that because an Advocate committed an error, the act of the plaintiff of presenting himself in the Thane Court on 5-8-1971 for presentation of the pauper petition was act devoid of bona fides or devoid of good faith. One cannot say that he did not act with due care and caution when he has entrusted the matter to an Advocate, who is recognised even by the learned Judge to be a senior Advocate of the Court. In normal circumstances, this is all that a layman can be expected to do. If he has engaged an Advocate (and a senior Advocate at that) and has reposed trust in him, he cannot be condemned for having failed to exercise due care and caution. In my opinion, the entire view of the learned Judge is basically erroneous.
Order 33, Rules 3 and 5-Suit as Indigent person-Exemption from personal presentation-Allegation of snit being barred by limitation-When suit barred by limitation, pauper application may be rejected - But when court did not exercise said power under Order 33 Rule 5, it clearly meant that court accepted that petitioner was entitled to benefit of Section 14 of Limitation Act.
The above provision clearly shows that the Court has got every power to exempt the personal appearance of the indigent petitioner. The exercise of the power can be done expressly or by necessary implication by giving him time to appear for making statement before the Court on 04-10-1972. The Court implicitly gave to him the facility of exemption from personal appearance so far as the date 27-09-1972 was concerned. The Court went a step further and even declared him to he an indigent person. After having granted this application for leave to sue as an indigent person, the Court had no justification or even jurisdiction to retrace its step and to condemn the petition as being barred by limitation. The view of the learned Judge holding that the suit was barred by limitation deserves to be corrected and set aside on this narrow ground itself.
A mere glance at Order 33, Rule 5 is enough to show that the Court is duty bound to reject an application for permission to use as a pauper where the allegation made by the applicant in the application shows that on the date of the filing of the pauper petition the suit was barred by any law for the time being in force. This would obviously include the bar of limitation contained in the Limitation Act. When the Court did not exercise the said power under Order 33, Rule 5 what was clearly signified was that the Court had held the application to the Thane Court to be the bona fide application. It clearly meant that the Court had accepted the petitioners contention that he was entitled to the benefit of Section 14 of the Limitation Act.
It appears to he the settled view that the common thread in all the Authorities is that all the procedure which is contemplated by Order 33, Rule 3 of the Code, which is followed by the indigent petitioner in the Court of wrong jurisdiction has got to he repeated in the Court where the petition is filed after its return for presentation to the proper Court. There need be no quarrel with the proposition. Point is that in the instant case both in the Thane Court as well as in the Alibag Court, the Court had jurisdiction to grant exemption to the petitioner from making personal presentation of the petitioner. By necessary implication, the Court exercised that power to grant exemption on 27-09-1972 when it directed the Petitioner to remain present on 04- 10-1972 recorded his statement on that date, accepted the verification on that date, issued notice to the defendants on that date and granted the petition later on.
Having regard to all the above aspects of the matter, the view of the learned Judge about the suit having been barred by limitation cannot be sustained.
In effect, the learned Judge has held that the presentation of the pauper petition on the last day of the date of limitation should have been by the petitioner himself, that the presentation of the same by his Advocate and his verification of the same about 5 days thereafter meant that the pauper petition itself was filed 5 days after the expiry of limitation. The suit has been dismissed on this narrow ground. Hence, this appeal.
As will be presently pointed out, the learned Judge's view regarding vindication of the Railway's negligence is quite correct, having regard to the nature of the evidence adduced by the parties. However, in my opinion, his view regarding the question of limitation turns out to be very narrow and pedantic. In my opinion, the suit must be held to be within limitation.
2-A. Facts : undisputed and indisputable---At least at this stage there is no dispute that the plaintiff was the owner of the relevant truck, B.M.O. 2640 on the date of the accident in question. There is no dispute about the accident as well. On 7-6-1968 the truck was loaded with stacks of grass and was being driven from village Pethali to Thane, driven by the driver Gurmit Singh. It came near Taloja Railway Station. There is Level Crossing Gate No. 10 at that station. The time was about 10.15 p.m. According to him the gate of the level crossing was open, no prohibitory red light was shown anywhere whether on the gate or elsewhere. The man to open the gate was no where on the horizon and thus, there existed no indication whatsoever that any train or engine would be passing over the rail across the railway crossing. He and his cleaner were in the truck at that time. The truck was driven over the Level Crossing and was about to cross the down track. While doing so, the rear right side of the truck was knocked down by the Railway Engine which was being driven reverse towards Panvel. It broke the truck literally into 2 pieces. Fortunately, both the driver and the cleaner escaped unhurt, but the truck was in shambles. The two pieces of the truck were removed from the rail track by the Railway's crane on the next day. About 3 or 14 days thereafter, the two parts of the truck were loaded in another truck and carried away by the plaintiff to a garage, at Kalyan. The Garage owner however, made no bones of the fact that it was a total loss and it was futile attempting repairs of the truck. As it was, it was a 2nd hand truck of old vintage. The last received knocking made a junk of it. The Garage owner took out some serviceable parts of the truck and sold them as second hand spare parts and in this way the plaintiff could salvage Rs. 2000/- from out of the shambles.
There is no dispute at least at this stage that the Station Master, Mr. Pangare, made the necessary inquiry and submitted his report to the Divisional Superintendent of Railways. In that report, he specifically attributed the accident to the gross negligence of the Pointsman on duty at that time, one Sagu Kushaba Jadhav. It is also an admitted fact (as is evident from the Station Master's own evidence) that in fact 2 years' increments of the Pointsman were stopped on account of his (Pointsman) act of gross negligence. Admitted
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