P.C. Jain, J.@mdashThis regular first appeal has been filed against the judgment and decree of the trial Court by which the suit of the plaintiff for the recovery of Rs. 1,00,000/- as damages was dismissed, leaving the parties to bear their own costs.
2. The facts as alleged in the plaint are that the plaintiff is an Advocate of about 22 years'' standing at the Ajmer Bar and is also enrolled as an Advocate of the Supreme Court of India. On the night between 31st December, 1957, and 1st January, 1958, the plaintiff was travelling by 2 Dn (passenger train) from Ambala Cantonment to Delhi and while the said train was standing at Mohri Railway Station, the Janta Express train coming from Delhi, collided with the said 2 Dn, passenger train as a result of which the plaintiff sustained serious injuries on his head and in the spine. The plaintiff was removed in an unconscious state to the Military Hospital, Ambala Cantonment, where he was admitted as an indoor patient and remained there upto 5th February, 1958.
3. On his discharge from the hospital, the plaintiff got himself examined at Ajmer by Dr. K. D. Shastri, a Surgeon in the Government Victoria Hospital Ajmer, and was also examined by Dr. B. N. Sharma, Director, Medical and Health Services, Rajasthan. The former finding a compressed fracture of his 6th thoracic vertebra, put a jacket of plaster of paris twice while the letter applied the same (similar jacket) once. Put all this treatment did not give the plaintiff any relief. On 17th July, 1958, Dr. H. C. Chhachi, Divisional Medical Officer, Northern Railway, Railway Hospital, Delhi, and Dr. Amar Chand, Divisional Medical Officer, Western Railway, Railway Hospital, Ajmer, also examined the plaintiff and agreeing with the advice of Dr. K. D. Shastri, recommended the use of spinal brace besides other treatment. The plaintiff, on the recommendation of the General Manger, Northern Railway, who had arranged for the spinal brace of the plaintiff, at the Artificial Limb Centre, Poona, was admitted to the Military Hospital, Poona, on 9th September, 1958, where he was supplied the spinal brace and was given other treatment. The plaintiff was discharged from the Poona hospital on 6th October, 1958.
4. It is alleged that the plaintiff had a lucrative practice in Ajmer. He possessed a sound physique and excellent health. The railway accident was due to the sheer negligence and gross misconduct on the part of the Railway Administration and its servants. He has further alleged that besides mental worry and bodily pain, he had to incur a lot of expenses for his treatment and had to be off from his professional work till 15th November, 1958. Even at present, he cannot bear the strain and is unable to do his normal work. According to the medical opinion, a permanent disability has developed in the spine and his earning capacity has been reduced by 50%. The fracture in the spine has affected his memory to some extent.
5. Notice u/s 80 of the CPC was served on the defendant. After that on the above mentioned allegation, the present suit was brought against the defendant for the recovery of Rs. 1,00,000/- as general and special damages given in detail in paragraph 18 of the plaint on 2nd March, 1959, in the Court of Senior Subordinate Judge, Karnal. From there it was transferred to the Court of Subordinate Judge, Panipat, who vide his order dated 28th October, 1959, returned the, plaint for presentation to the proper Court as he had no jurisdiction to try the suit. The plaint was presented in the trial Court on the 29th October, 1959, along with an application u/s 14 of the Indian Limitation Act.
6. The suit was contested by the defendant and written statement was filed on the 6th January, 1960. Preliminary objections were raised :
1. That the suit was beyond limitation and the plaintiff was not entitled to the benefit of section 14 of the Indian Limitation Act.
2. That the suit was not maintainable as the compensation of Rs. 6,750/- awarded by the Claims Commissioner, Mohri Railway Accident, Ambala, regarding this very accident on the application of the plaintiff had been accepted by him.
3. That no total or permanent partial disability has been caused to the plaintiff so far as his earning capacity is concerned.
4. That the plaintiff was estopped from filing this suit.
7. On merits, the facts regarding the lucrative practice, sound physique and excellent health, were denied and it was further pleaded that the injuries received by the plaintiff were not serious. The averments in paragraphs 4 to 18 of the plaint were controverted but it was admitted that the plaintiff was examined by Dr. H. S. Chhachi. It was pleaded that the plaintiff was attending to his professional work in the normal way, that he had not suffered any injury which could or had impaired his memory and that there was no negligence or gross misconduct on the part of the Railway Administration. It was averred that the claim was exorbitant. The plaintiff did not suffer any financial loss and was estopped from claiming loss of professional income for the year 1958 as he had been awarded Rs. 3,250/- in this behalf. The plaintiff had received Rs. 3,500/- as compensation on account of permanent disability and the amount of Rs. 2,353/-claimed towards medical expenses could not be claimed as the same was not claimed before the Claims Officer. The claim for future Joss being speculative, was not maintainable.
8. The plaintiff filed replication and reiterated the allegations made by him in the plaint.
9. On the pleadings of the parties, following issues were framed by the trial Court :
1. Is this suit within time ?
2. Whether the plaintiff bona fide prosecuted the suit in the Karnal Court and is entitled to deduction of the time so spent u/s 14 of the Indian Limitation Act ? If so. how much ?
3. Is this suit barred as alleged in paragraph No. 2 of the preliminary objections of the written Statement ?
4. Is the plaintiff estopped from filing this suit ?
5. Whether the Railway accident was caused due to the negligence and gross misconduct on the part of the Railway Administration and its servants ? If so. what is its effect ?
6. Whether the plaintiff received injuries mentioned in paragraph No. 5 of the plaint as a result of the accident ?
7. Is the plaintiff entitled to damages for loss of professional income for the year, 1958 from the defendant ? If so how much ?
8. Did the plaintiff incur any expenses in connection with tins medical treatment ? If so, how much and is he entitled to receive the same from the defendant ?
9. Whether the plaintiff is entitled to get any damages from the defendant for mental worry and bodily pain caused as a result of the injuries received by him ? If so, how much ?
10. Whether the plaintiff sustained permanent partial disability to continue lucrative professional business and his earning capacity has been reduced and is he entitled to get damages from the defendant from 1st January. 1959 to 1971 as claimed in paragraph No. 18 (iv) of the plaint ? if so, how much and at what rate ?
11. Relief.
Issues Nos. 1 and 2 were tried together and it was held by the trial Court that the plaintiff was not entitled to the benefit of section 14 of the Indian Limitation Act, and the suit was patently time barred. In any case, the suit ought to have been instituted on 1st March, 1959, when the limitation for the suit prescribed by Article 22 of the Indian Limitation Act (Act No. IX of 1908), hereinafter referred to as the Act, expired. That day being Sunday, its institution in a wrong Court or the next following day, would not afford any protection of section 4 of the Act to the plaintiff. Both the issues were found against the plaintiff. Issues NOS. 3 and 4 were found in favour of the plaintiff. On issue No. 5, it was held that negligence and misconduct on the part of the Railway Administration was to be presumed and was proved for which the defendant was vicariously liable, and with this finding the issue was found in favour of the plaintiff. Issue No. 6 was decided in favour of the plaintiff. Under Issue No. 7, it was held that the plaintiff was entitled to Rs. 2,250/- only. Under issue No. 8, the plaintiff was allowed the sum of Rs. 1,500/- for medical treatment, while under issue No. 9, the plaintiff was allowed Rs, 1,0000/- as damages for mental worry and bodily pain. On issue No. 10, the finding of the trial Court is that the Joss of income on account of disability suffered by the plaintiff comes to Rs. 22,400/- and after deducting Rs. 3,500/�already allowed by the Claims Commissioner and drawn by the plaintiff, the balance of Rs. 18,900/- was allowed. In view of the findings on issues Nos. 1 and 2, the trial Court dismissed the suit leaving the parties to bear their own costs. Feeling aggrieved from the judgment and decree of the trial Court, the present first appeal has been filed.
10. Mr. Roop Chand, learned counsel appearing on behalf of the appellant, contended that the findings of the trial Court on issues Nos. 1 and 2 were wholly erroneous. According to the learned counsel, the suit was within time and the plaintiff bona fide prosecuted the suit in the Kamal Court and was entitled to the deduction of the time so spent, u/s 14 of the Indian Limitation Act.
11. The accident took place on the 1st January, 1958, and the suit was instituted in the Court of Senior Subordinate Judge, Karnal, '' on the 2nd of March, 1959,as 1st of March. 1959 was Sunday. On an objection raised by the defendant about the territorial jurisdiction of the Karnal Court, the Subordinate Judge. Panipat, to whose file the case had been transferred from Karnal. by his order dated 28th October 1959 (Exhibit P.7) held that the place of accident was in Ambala District and Karnal Courts had no jurisdiction. The plaint was returned to the plaintiff on 28th October, 1959 and was presented before the trial Court on the 29th October, 1959, along with an application u/s 14 of the Indian Limitation Act, for condoning the delay on the plea that the plaintiff had been prosecuting the suit in the Court in district Karnal in good faith. The ground which weight with the trial Court while deciding issue No. 2 against the plaintiff, was that Shri Beni Parshad Gupta on whose sole advice the suit had been filed in the Court at Karnal. had not been examined by the plaintiff as a witness, and therefore, there was nothing to indicate that in fact the plaintiff was misled on the alleged advice by his counsel.
12. An application was made by the plaintiff on 9th November, 1960, u/s 151 of the Code of Civil Procedure, praying that in the interest of justice, the plaintiff be allowed to examine Shri Beni Parshad Gupta, Advocate, before the case was closed. This application was disallowed by the trial Court on the ground that the application was belated and no reason had been given as to why Shri Beni Parshad Gupta, Advocate, was not cited as a witness earlier. Shri Beni Parshad was present in the Court and I do not see any reason as to why the prayer made by the plaintiff for examining him was rejected. While filing the appeal in this Court, affidavit dated 5th April, 1962, of Shri Beni Parshad, Gupta, was attached, which is at page 122 of the Paper Book. In that affidavit it is clearly depose d that the plaintiff consulted him before filing the suit for damages, against the Union of India and he had advised the plaintiff that the suit was to be filed at Karnal. In my opinion, there was absolutely no ground for the trial Court to have rejected the application of the plaintiff for examining Shri Beni Parshad Gupta, advocate, as a witness.
13. Exhibit P.6 is the copy of Jamabandi of village Mohri, Tehsil Thanesar, for the year 1943-44, testifying that Khasra No. 1119/1 and 2 shown as Ahata Railway Station, Mohri, is in Karnal District. It is correct that the plaintiff deposed in the Court that in his opinion the suit should have been filed in the Civil Court at Ambala but as he belonged to Ajmer, the opinion given by Shri Beni Parshad Gupta was to weigh with him. The fact that the plaintiff had been appearing before the Claims Commissioner, dealing- with the claims cases relating to the accident of Mohri, would not give the Civil Courts at Ambala, jurisdiction to hear the case. The Claims Commissioners are appointed by the Central Government u/s 82(B) of the Indian Railways Act and the appointment of Claims Commissioner cannot decide the jurisdiction of the Court. In my view, the grounds on which issue No. 2 was decided against the plaintiff, are flimsy. The unrebutted evidence of the plaintiff clearly proves that he bona fide prosecuted the suit in the Karnal Court. From the order passed on 28th October, 1959 (Exhibit P. 7) by which the plaint was returned to be presented to the proper Court (at page 133 of the Paper Book), it is clear that the point of jurisdiction was doubtful. The learned Subordinate Judge observed as follows :
From the evidence led by the defendant it appears that some part of the railway compound of Mohri station is situated in Mohri village while the remaining station compound is situated in village Mohra, i.e., in Ambala District and this fact has been the cause of so much controversy between the parties about the fact that whether the place of accident is situated in Karnal District or in Ambala District and taking the revenue entries as correct, the plaintiff filed this suit in this District. However, the fact remains that it was for the plaintiff to establish that the place of accident is situated in Karnal District. The plaintiff cannot succeed on the weakness of the other party''s case.
14. In my view, the finding on issue No. 2 given by the trial Court is not sustainable and accordingly, it is reversed and I hold that the plaintiff bona fide prosecuted the suit in the Court in district Karnal and is entitled to deduction of the time so spent u/s 14 of the Act.
15. The next question that requires consideration is as to whether the suit is within time. To arrive at a right conclusion it is necessary to state certain relevant dates. The accident took place on January 1, 1958. Notice u/s 80 of the CPC was served on 29th December, 1958. The suit was filed in the Court at Karnal on 2nd March, 1959 and remained pending upto 28th October, 1959. It was refilled in the Court at Ambala on 29th October, 1959. The argument of the learned counsel for the appellant is two-fold; (1) that the suit at Karnal could be filed upto 3rd of March, 1959 and (2) in the alternative, the plaintiff was entitled to the benefit of section 4 of the Indian Limitation Act. Under the first argument it was contended that the suit for damages under Article 22 of the Act could be filed within one year from the date when the injury was committed. If no notice as required by section 80 of the CPC was necessary, then the suit could be filed on 1st January, 1959- In this case, giving of notice was necessary and hence the plaintiff u/s 15(2) of the Indian Limitation Act was entitled to exclude the period of such notice which u/s 80 of the CPC is two months. The notice was served on the 29th of December, 1958. According to the learned counsel, the plaintiff could not file suit before the expiry of the period of notice which when calculated from 30th of December, 1958, would expire on the 2nd of March, 1959, as February in the year 1959 was of 28 days. Like this two days of March would fall in the notice period and the suit could be filed on the 3rd of March, 1959. After giving by thoughtful consideration to this aspect of the matter, I find absolutely no force in the contention of the learned counsel for the appellant. The plaintiff is entitled to exclude the period of one year and two months that is, the period of one year as prescribed under Article 22 of the Act and two months as prescribed u/s 15(2) of the Limitation Act. The plaintiff is entitled to exclude two calendar months, i.e. the period of notice prescribed under law. If the contention of the learned counsel for the appellant is accepted, then that would mean more period of limitation than the one provided under Article 22 read with section 15(2) of the Act which is not permissible. Accordingly I hold that under Article 22 read with section 15(2) of the Act, the present suit could be filed by the plaintiff on the 1st March, 1959.
16. On the second argument, it was contended by the learned counsel for the appellant that the plaintiff was entitled to the benefit of section 4 of the Act and while computing limitation, the entire period from 2nd March, 1959 to 28th October, 1959. was to be excluded. Reliance was placed on the decision of Nagpur High Court in
17. On the other hand, Mr. G. P. Jain, learned counsel for the respondent, contended that the appellant was not entitled to the benefit of section 4 of the Act. According to the learned counsel, the appellant was entitled to the benefit of section 4 of the Act only if the suit was filed in the proper Court. The plaintiff filed the suit in the wrong Court at Karnal and having taken benefit of section 4 of the Act, was not entitled to avail of that benefit again after the institution of the suit in the Court at Ambala. It was also contended by the learned counsel for the respondent that the suit in the Court at Ambala could not be treated a suit in continuation of the suit filed in the Court at Karnal. In support of his contention reliance was placed on the decision of the Privy Council in
18. After giving my thoughtful consideration to the respective contentions of the learned counsel for the parties and the law cited at the Bar, I am unable to accept the argument of the learned counsel for the appellant. Section 4 of the Limitation Act reads as follows :
4. Where Court is closed when period expires:
Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.
From the plain reading of this section, it is clear that it merely embodies a rule of elementary justice that if the time allowed by the statute to do an act or to take a proceeding expires when the Court is closed, it may be done on the next sitting of the Court. In the present case the limitation for filing the suit expired on the 1st March, 1959, and that being a holiday (Sunday) the suit by "virtue of the provisions of section 4, could be filed on the 2nd March, 1959. But the question arises as to whether the plaintiff is entitled to take benefit of section 4 of the Act when the suit by him was filed in the wrong Court and the reply to this question is in the negative. The word ''Court'' in this section means the proper Court, that is, the Court in which the suit ought to have been instituted and not the Court in which the suit had been filed and which had no jurisdiction to entertain the suit. The following observations of their Lordships of the Privy Council in Maqbul Ahmad''s case, may be read with advantage :
The language of section 4 is such that it seems to their Lordships to be impossible to apply it to a case like the present. What it provides is that, where the period of limitation prescribed expires on a day when the Court is closed, the application may be made on the day when the Court reopens. In their Lordships'' view that means the proper Court in which the application ought to have been made.
19. If the plaintiff had filed the present suit in the Court at Ambala on the 2nd March, 1959, then he was certainly entitled to the benefit of section 4 of the Act but having filed the suit in the Court at Karnal which had no jurisdiction to entertain the plaint, the plaintiff could not avail of the benefit of section 4 of the Limitation Act. The decision cited by the learned counsel for the respondent fully support his contention while the decisions referred to by the learned counsel for the appellant are clearly distinguishable and have no applicability to the facts of this case. In Chudamansao Bishramasao and Bejoy Kumar''s cases, the plaintiff did not take advantage of section 14 of the Act before filing the suit in the wrong Court as in both these cases the suit was filed within limitation in the wrong Court but on return of the plaint to be presented to the proper Court, benefit of section 4 was claimed to which the plaintiff was held to be entitled. Faced with this situation the learned counsel for the appellant contended that the suit in the Court at Ambala would be deemed to be in continuation of the suit at Karnal and hence the question of the non-applicability of section 4 of the Act on the ground that the suit was filed in the wrong Court, would not be material. But this contention too has no substance. Section 15 of the CPC prescribes that every suit shall be instituted in the Court of the lowest grade competent to try it while Order 7 rule 10 of the CPC provides that at any stage of the suit, the plaint shall be returned to be presented to the Court in which the suit should have been instituted. To my mind, the combined effect of these two provisions is that when a plaint is filed in a new Court after being returned by another, it is a new suit for all intents and purposes and not merely a continuation of the old one. The view I am taking is fully supported by the decision of the Patna High Court in Ram Kishun Rai v. Ashirbad Rai A.I.R 1959 Patna 473, and the following observation of their Lordships of the Patna High Court may be read with advantage:
6. There are no decisions of this Court directly bearing upon the point, and at any rate none has been cited at the Bar. A great deal will depend upon the meaning of the term ''suit'' used under Order 23 rule 3 of the Code. Section 15, Civil Procedure Code, provides that the suit shall be instituted in the Court of the lowest grade competent to try it. This shows that if the Court before whom the plaint is presented finds that it is not competent to try it, it shall at any stage return the plaint to be presented to the Court in which the suit should have been instituted. This is provided for in Rule 10 of Order 7. The combined effect of the two rules is that a suit cannot be said to be instituted so long as the plaint is not presented before the Court competent to try the suit. It may be that for certain purposes the Court before whom a plaint is originally filed may have jurisdiction to entertain the plaint and to pass certain orders with reference to it. But when the Court before whom the plaint was filed returns it to be presented in a Court of competent jurisdiction, the suit is to be considered as instituted on the date of such presentation. A reference may be made in this connection to a decision in Hadlot Khasia v. Karan Khaisiani 15 C.L.J. 241 = 13.I.C. 377, That case was under the old Code of Civil Procedure, and S. 57 of the old.Code corresponds to 0. 7 R. 10 of the present Code. Their Lordships in dealing with the first and second contentions on behalf of the appellant which dealt with the question of the frame of suit and the plea of limitation, held that the combined effect of section 57. Civil P. C, and section 14, Limitation Act. is that when the plaint is returned to be presented in a Court of competent jurisdiction, the suit is to be considered as instituted on the date on such presentation. They also held that if a contrary view were adopted the inference would follow that the provisions of section 14, Limitation Act were superfluous.
It would have been needless." their Lordships observed, "to formulate the rule embodied in section 14, unless the theory were adopted that the suit was instituted only when the plaint was presented in the Court of competent jurisdiction." Another decision of the Calcutta High Court bearing upon the point is
20. For the reasons recorded above, I affirm the finding of the trial Court on issue No. 1 and hold that the plaintiff-appellant is not entitled to the benefit of section 4 of the Act and his suit is barred by limitation.
21. In view of my finding on issue No. 1, it was not necessary to decide the other issues as on the finding of issue No. 1, the appeal is liable to be dismissed. Still I propose to deal with the other issues which have been pressed before me by the learned counsel for the appellant with a view to avoid any remand, in case my finding on issue No. 1 is reversed by the appellate Court.
22. The learned counsel for the appellant has pressed issues Nos. 7 and 10 only. Under issue No. 7 it was contended that according to the decision of the trial Court itself the plaintiff was entitled to an amount, of Rs. 3250/- and not Rs. 2250/-. The learned counsel for the respondent concedes and urges that this mistake seems to have occurred because of typing mistake. Accordingly under this issue I hold that the plaintiff is entitled to Rs. 3250/- as damages for loss of professional income for the year 1958.
23. Under issue No. 10 it was contended by the learned counsel for the appellant that the amount awarded for the loss suffered on account of disability is too low and the trial Court while arriving at this figure has either ignored important evidence or has rejected the same on purely conjectural grounds. On the other hand Mr. G. P. Jain, learned counsel for the respondent, contended that the claim of the appellant was speculative and on the evidence as it exists on the record, the amount awarded by the trial Court is just and equitable.
24. After going through the evidence and after considering the respective contentions of the learned counsel for the parties, I am of the view that the amount awarded by the trial Court deserves to be increased. The figure of Rs. 6500/- which was arrived at by the Claims Commissioner as the average income of the appellant lias been accepted by the trial Court and after assessing the permanent disability at 25%, average loss of income per annum was worked out at Rs. 1600/-. The trial Court has fallen in error by taking the amount of Rs, 6500/- as the average income of the plaintiff per year because from the order of the Claims Commissioner, Exhibit P. 13. it is clear that this amount is for a period of 9 1/2 months only. According to the figure of the Claims Commissioner the yearly income of the plaintiff-appellant comes to Rs. 8000/- Applying 25% permanent disability, the average loss of income per annum would come to Rs 2000/-. The plaintiff has led evidence to show that the average life of his family members was 75 years but the estimation of the trial Court in fixing the probable life in profession up to the age of 60, is quite reasonable and I do not find any reason to take a different view. Multiplying the figure of Rs. 2000/- with 14 years (the probable life in profession, i.e.. up to the age of sixty the loss of income suffered by the plaintiff, comes to Rs. 28000/-. After deducting Rs. 3500/- already allowed by the Claims Commissioner, and drawn by the plaintiff, the balance comes to Rs. 24500/- only. The finding of the trial Court on this issue is modified to the extent mentioned above.
25. No other point has been pressed.
26. Respondent has filed cross-objections regarding costs which were disallowed by the trial Court. In my view in the peculiar circumstances of the case, the discretion has been properly exercised by the trial Court and hence I find no ground for interference:
27. In view of my finding on issue No. 1, this appeal fails and is dismissed. In the circumstances of the case, the parties are left to bear their own costs.
