1983 Supreme(MP) 738

IN THE HIGH COURT OF MADHYA PRADESH
Faizan Uddin, J.
Sadaram - Appellant
Vs.
Ranjitsingh - Respondent
S.A. No. 93 of 1973 (G)
Decided On : 18-04-1983

Headnote:Limitation Act, 1963 – S. 22 and 2(m) – discharging waste water every day – is a continuing wrong – question of limitation, does not arise.

        Short Note

       The plaintiff/appellant had instituted a suit for declaration of his title in respect of the Chabutra and also for permanent injunction, restraining the defendant – respondents from discharging the dirty water of their latrine and urinals over the plaintiff's Chabutra, causing nuisance. The defendant contested the suit on other grounds besides his contention that the suit was barred by limitation.

       2. The learned trial Court framed issues, in which issue No. 6 related to the limitation. It was tried as a preliminary issue. The learned trial Court found that according to the plaint allegations the cause of action accrued on 15th June, 1954, while the suit was filed on 17th June, 1968, and as according to Article 113 of the Limitation Act (hereinafter referred to as 'the Act') limitation of three years is provided, the suit was barred by limitation. This finding was confirmed by the lower appellate Court, against which this appeal has been directed.

       3. Held: It may be pointed out that the contention of the plaintiff, as pleaded in the plaint is that the act of the defendants discharging the dirty water of their latrine and urinals over his Chabutra was causing nuisance. In other words, it was a suit for declaration as well as for restraining the defendants from doing the said acts of nuisance, which amounted to a 'continuing wrong'. The suit was thus clearly covered by the provisions of section 22 of the Limitation Act, which provided that in the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues. The word 'tort' as used in section 22 of the Act has been defined in section 2(m), which means a civil wrong which is not exclusively the breach of a contract or the breach of a trust. Where the 'wrong' consists of a breach of negative duty, i.e., to restrain from doing something, the test to find out whether there is a continuing wrong is to see whether the wrongful act produces a state of affairs, every moment's continuance of which is a new wrong or which is a continuous source of injury or nuisance and is of such a nature as to render a wrong doer of it responsible for the continuance; and if the wrongful act is of such a nature it is a continuing wrong, within the meaning of section 22 of the Limitation Act.

       4. In the present case, it may be noted that what the plaintiff complained is discharge of dirty water by the defendants over his Chabutra, which is a wrongful act on the part of the defendants and a continuous nuisance to the plaintiff. Continuous in the since that every time the dirty water is discharged on the plaintiff's Chabutra, a fresh cause of action against the defendant would arise for the said wrongful act, within the meaning of section 22 of the Limitation Act.

       5. In somewhat similar circumstances, the Jammu and Kashmir High Court in Sarba Singh v. Mibariksingh, AIR 1961 J&K 53 took the view that each time the water from Parnalas was discharged on the plaintiff's land, there will arise a fresh cause of action against the defendant. In AIR 1956 Madhya Bharat 209 (Ram Bhika v. Arjun Gopal), it was observed that the diverting of the water on the neighbour's field, constitutes a recurring cause of action, so that no question of limitation can arise in regard to a suit for the restoration of the surface of the flowing water. Similarly, in Bashiruddin v. Ramprasad (1963 JLJ 381), this Court took the view that the obstruction to a private right of way is a continuing wrong and the number of years for which it is obstructed is immaterial.

       6. Having regard to the facts of the present case and the aforesaid decisions, I am of the opinion, that the wrongful act on the part of the defendants is a continuing wrong and therefore, no question of limitation can arise in regard to the instant suit. AIR 1956 M.B. 209, AIR 1961 J.&K. 53 and 1963 JLJ 381 relied on. Appeal allowed.