Krushna Ram Mohapatra, J.@mdash1. Judgment and decree dated 17.09.2004 and 30.09.2004 respectively passed by the learned Civil Judge (Senior Division), Keonjhar in dismissing the Money Suit No. 30 of 2002 is under challenge in this appeal.
2. The suit was filed by the parents of the deceased-Ranjit Penthei claiming damages of Rs. 3,00,000/- for the death of said Ranjit (for short, ''deceased'') due to electrocution. In the meantime, appellant No. 1-Jadumani Penthei (father of the deceased) has died and appellant No. 2-Gomati Penthei, the mother of the deceased is only prosecuting the appeal.
3. Case of the plaintiffs in short is that due to heavy rain and storm in the night of 4/5.10.2000, the live electricity wire in their village Kalima was snapped and was hanging from the pole. The same was not attended to by the distribution Company, namely, North Eastern Electricity Supply Company Orissa Limited (NESCO) personnel, who were in-charge of maintenance in that area in spite of information. As a result, Ranjit Penthei (the deceased), a young man of 19/20 years old came in contact with the live wire at 9/10 AM, while escorting the cattle near the electric pole and died instantaneously. The FIR was lodged at Telkoi Police Station, and on requisition, postmortem examination was conducted over the corpus. The postmortem report disclosed that the death was caused due to electrocution. Such an unfortunate incident occurred due to the negligent act of officials of NESCO. At the time of death, the deceased was earning about Rs. 4,000/- per month. Due to death of the only earning member of the family, the plaintiffs are starving and thus the suit was filed for the aforesaid relief.
The defendant No. 2 only appeared pursuant to the notice issued and filed his written statement denying the plaint allegations. He further contended that in absence of the Company, which is in charge of distribution of electricity and maintenance, the suit is liable to be dismissed for non-joinder of necessary parties; Principles of Res Ipsa Loquitur is not applicable to the case of the plaintiffs. Defendant No. 2 disputed the status of the plaintiffs as parents and dependants of deceased Ranjit Penthei. They also disputed the alleged occurrence. Amongst other, defendant No. 2 took a stand that the suit is barred by limitation and is bad for non-joinder of necessary party. At para-6 of the written statement, it is categorically stated by defendant No. 2 that the plaintiffs are estopped to allege that they (the defendants) can ever be held liable to pay the damages in their individual capacity in any manner, particularly, in absence of the Company, i.e., NESCO, which should have been impleaded as party to the suit. Further, defendant No. 2 contended that the plaintiffs have no cause of action to file the suit. Hence, they prayed for dismissal of the suit.
4. Taking into consideration the rival contentions of the parties, learned Civil Judge (Senior Division) framed as many as seven issues out of which issue Nos. 2, 3 and 4 are relevant for adjudication of this appeal, which reads as follows:--
"2. Was there cause of action to bring the suit?
3. Is the suit bad for non-joinder of necessary parties?
4. Is the suit barred by law of limitation?"
5. While answering issue No. 3, learned Civil Judge (Senior Division) though held that the plaintiffs have intimated the Lineman of Junior Engineer regarding alleged occurrence, but they are not impleaded as parties to the suit. The plaintiffs have impleaded the Managing Director, NESCO and Executive Engineer, NESCO only as defendants 1 and 2 respectively. In view of the nature of allegation, NESCO is a necessary party, but it has not been impleaded as such and the Managing Director has been impleaded in his individual capacity as party to the suit. Hence, the suit is bad for non-joinder of necessary parties.
6. While answering issue No. 4, learned Civil Judge held that Article 72 of the Limitation Act is applicable for filing the suit which provides limitation of one year for filing the suit of the present nature.
7. In view of the answers to issue Nos. 3 and 4, learned Civil Judge held that the plaintiffs have no cause of action to file the suit. Issue Nos. 5 and 6 were answered in favour of the plaintiffs. Thus, the learned counsel for the plaintiffs assails the findings on issue Nos. 2, 3 and 4 in this appeal.
8. It is the contention of the learned counsel for the appellant that NESCO is being represented by its Managing Director and the Managing Director has been impleaded as a party in his official capacity. The suit is not filed for suing the Managing Director in his individual capacity. He is sued in his representative capacity, namely, the representative of NESCO. He during course of argument, fairly concedes that defendant No. 1 has not been properly described. Due to such mis-description of defendant No. 1, learned counsel for appellant No. 2 has filed an application for amendment of the cause title in Misc. Case No. 350 of 2015. To substantiate his case, he relied upon a decision in the case of Union of India v. Ashok Kumar Rasiklal, reported in , AIR 1987 (Ori) 264 in which the suit was filed against the General Manager, S.E. Railway. But after filing of the written statement, the plaint was amended impleading defendant No. 2 and also amending the description of defendant No. 1 by adding "Union of India through" before the description of the original defendant. The question of such amendment was under challenge before this Court in the case of Ashok Kumar Rasiklal (supra). This Court relying upon the decision of the Hon''ble Supreme Court in the case of Purushottam Umedbhai and Co. v. Manilal and Sons, reported in , AIR 1961 SC 325, held as under:--
"10. Misdescription of parties and correction of the misdescription are not unknown to law. Where it is clear from the facts as to who is the person who intends to sue or is intended to be sued but is described wrongly, it is a case of misdescription of parties which can be corrected by the court any time. The Supreme Court in the case of Purushottam Umedbhai & Co. v. Manilal & Sons, , AIR 1961 SC 325 dealt with a somewhat, similar question where the suit was instituted in the name of the firm and the partners were substituted later in its place."
He also relied upon decisions of the Hon''ble Supreme Court in the case of Murari Mohan Dev v. Secretary to the Government of India and others, reported in , AIR 1985 SC 931 (para-10) and Bal Niketan Nursery School v. Kesari Prasad, reported in , AIR 1987 SC 1970 (para-12 and 13). Thus, it is contended by learned counsel for the appellant that defendant No. 1 has not been described properly in the plaint but the real intention of the plaintiff was to sue the NESCO for compensation.
9. Refuting allegations made, learned counsel for the respondent No. 2 submits that the decisions cited by learned counsel for the appellant are not applicable to the case at hand. The decision in the case of Bal Niketan Nursery School (supra) relates to a petition under Order 1 Rule 10, CPC. In the said case, the plaintiff was capable of instituting a suit under the Bye law of the Society. In the instant case, though a specific stand was taken by the defendant No. 2 (respondent No. 2 herein) that NESCO being a Company has not yet been impleaded as party to the suit. On the other hand, they (plaintiffs) preferred to pursue the suit till the impugned judgment was passed against them. Thus, they have not shown due diligence during pendency of the suit. Relying upon a decision of this Court in the case of L.P. Electronics (Orissa) Pvt. Ltd. others v. Tirupati Electro Marketing Pvt. Ltd., reported in , 2013 (II) OLR 318, he submits that after conclusion of hearing of the suit the parties have no further right or privilege in the matter and it is only for the convenience of the Court that the suit is adjourned under Order 20 Rule 1, CPC to pronounce the judgment as a subsequent date. He also relies upon another decision of the Hon''ble Supreme Court in the case of Ram Nath Sao @ Ram Nath Sahu v. Gobardhan Sao And Others , AIR 2002 SC 1201 in which it is held that after a lapse of considerable period, the Court has to strike balance between the two taking into facts and circumstances of the case into consideration. The same reads as follows:--
"11. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."
Thus, he submits that the petition under Order 6 Rule 17, CPC at the appellate stage is not maintainable, more particularly when a right has been accrued to the defendants by virtue of said judgment. Moreover, the conduct of the plaintiffs does not entitle them the relief sought for amendment of the plaint. He further submits that the amendment sought for is hit under Article 21 of the Limitation Act. Hence, he vehemently objects to amendment of the plaint at this stage.
10. There is no stand taken in the written statement by defendant No. 2 to the effect that the Managing Director is not competent to represent NESCO. No other material is available on record to show that the Managing Director cannot be sued or sued on behalf of NESCO. In addition to the above, on a close scrutiny of the pleadings in the plaint, it appears that the intention of the plaintiffs was to recover the damages from NESCO for untimely death of Ranjit Penthei due to electrocution. Thus, I have no hesitation to hold that the defendant No. 1 has not been properly described in the plaint though it was the intent of the plaintiffs to sue the Company for damages. Again, Junior Engineer and Lineman cannot be held to be necessary parties to the suit while deciding a suit of this nature, which is based on the principles of Res Ipsa Loquitur and they are neither necessary nor proper parties to the suit.
11. The next question that arises whether Article 72 of the Limitation Act is applicable to the suit at hand. Article 72 of the Limitation Act reads as follows:--
"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."
(emphasis supplied)
12. Learned counsel for the appellant strenuously urged that Article 113 of the Limitation Act is applicable to the case at hand, which is strongly refuted by respondent No. 2. Learned counsel for respondent No. 2, on the other hand, submits that since the suit is for compensation, learned Civil Judge has rightly made Article-72 of the Limitation Act applicable to the case at hand. Article 113 relates to the suit for which no limitation is provided. According to him, the said Article is not applicable to the case at hand as the Article 72 specifically provides the period of limitation for suit for compensation. Section-3 of the Limitation Act casts a duty on the Court to decide the question of limitation in filing the suit, even if the same is not taken as a defence in the written statement. Thus, this Court proceeds to decide the question of limitation. Article 72 as quoted above, clearly indicates the period of limitation for the suit for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment enforced for the time being. The limitation period for the same is provided as one year from the date when the act or omission has taken place. The suit is certainly not filed alleging any act done or omitted to have been done pursuant to any enactment. It is a suit for compensation and no enactment has yet been made for providing compensation in the case of death due to electrocution. The compensation is claimed under general law. Thus, Article 113 of the Limitation Act is very much applicable to the case at hand.
13. In view of the above, the impugned judgment and decree dated 17.09.2004 and 30.09.2004 respectively passed by the learned Civil Judge (Senior Division), Keonjhar in Money Suit No. 30 of 2002 are set aside. The matter is remitted back for de nove trial by permitting the plaintiff No. 2 (appellant No. 2) to amend the plaint by impleading "North-Eastern Electricity Supply Company of Orissa Limited (NESCO)'' represented through its Managing Director, Corporate Office at Januganj, PO/Dist: Balasore" as defendant No. 1. The suit shall proceed de nove from the stage of issuance of summons for settlements of the dispute. Learned Civil Judge shall act upon production of certified copy of this order. LCR be sent back immediately.
14. The appeal is allowed accordingly.
