ORDER :

Goutam Bhaduri, J

1. Heard.

2. Challenge in this appeal is to the order dated 06.8.2013 passed by Third Additional District Judge, Ambikapur, Surguja whereby a suit seeking compensation for electrocution death of a child was dismissed at the first date of hearing.

3. A case was filed by one Dhanushdhari Yadav against the respondents that on 07.7.2010, his only son namely Ashosk Yadav, who was aged about 7 years, died of electrocution. It was pleaded that on 07.7.2010 he went for study to school at Kudkel and during recess while playing he went to answer the call of nature to the land of the respondents wherein an open live wire was on the field. He came into contact with such wire, got electric shock, resulting into his death. It was stated that the respondent has acted gross negligently which caused death of son of the appellant, therefore, suit for compensation was filed. The suit was filed on 29.01.2013 with a pleading that the suit could not be filed within one year as such, a separate application under Section 14 of the Limitation Act 1963 is attached to condone the delay. Along with the plaint, an application under Section 33 of the CPC was also filed to sue as an indigent person. The learned trial Court, before the case was registered as a civil suit, dismissed it by order dated 06.8.2013 holding that the suit is barred by time.

4. Learned counsel for the appellant would submit that without framing any issues or going into the facts, the trial Court misdirected itself to dismiss the suit without even quoting the facts that within how much period of limitation the suit was required to be filed. She would further submit that it is a tortuous liability, as such, Article 72 of the Limitation Act, 1963 (for short ‘the Act 1963’) would not apply rather Article 113 of the Act 1963 would apply wherein, three years time is envisaged when the right to sue accrues. She further submits that the right to sue accrued with death on 07.7.2010, and the suit having been filed on 29.01.2013, was very much within the limitation. She placed reliance in matter of Rupabai and Ors. Vs. Sushilabai and Ors.,1998 (1) JLJ 305. Learned counsel would further submit that this kind of issues cannot be decided at the threshold by dismissal of the appeal and reference is made to the matter Satti Paradesi Samadhi and Pillayar Temple vs. M. Sankuntala (Dead) Throu. Ledgal Representatives and Ors., (2015) 5 SCC 674 . Further she would submit that any wrong pleading made by the counsel would not affect the right of the parties as law will have its own force and reference is made to Himalayan Coop. Group Housing Society vs. Balwan Singh and Ors., (2015) 7 SCC 373. The learned counsel submits that therefore, the case is required to be remanded for adjudication afresh and the appellant may also be given liberty to add necessary parties, if so advised.

5. Per contra, learned counsel for the respondents opposed the submissions and would submit that the impugned order is well merited. He would submit that after the death of his son, the appellant was dormant and after lapse of sufficient time, the suit was filed, therefore, the appeal deserves to be dismissed.

6. We have heard learned counsel for the parties and perused the record.

7. Perusal of the plaint allegation would show that death of son of the appellant occurred on 07.07.2010 due of electrocution. The negligence was attributed to the defendants that on their field live electric wire was lying, son of the appellant came into contact with the wire and was electrocuted. The plaint allegation would further show that suit for compensation of Rs.33 lakh was filed on 29.01.2013. In the judgment rendered in the similar facts in the case of Rupabai (Supra), the Supreme Court observed that when the alleged act of passing electric current in the wire fencing cannot be considered to be an act done in pursuance of any enactment in force at the time of the incident and Article 72 of the Act 1963 shall apply in cases w