JADU NATH DANDUPAT Vs. HARI KAR

JUDGEMENT

(1.) This is the third time that this suit has been before an Appeal Bench since it left the District Court and this fact has given rise to a preliminary objection. It is said that inasmuch as this is an appeal from the judgment of the Senior Judge of a Division, Court before whom the case came under Clause 15 of the Letters Patent, no appeal lies here. The facts are shortly these: The appeal came in the first instance before Mr. Justice Geidt. He considered the decision of the District Court erroneous. From his judgment, there was an appeal to a Division Court consisting of Mr. Justice Rampini and Mr. Justice Doss. Those two learned Judges were divided in opinion--Mr. Justice Rampini was for confirming the judgment of Mr. Justice Geidt and Mr. Justice Doss was for restoring the decree of the lower Appellate Court. Under Clause 36 of the Letters Patent, Mr. Justice Rampini s judgment prevailed, he being the Senior Judge. From Mr. Justice Rampini s judgment the present appeal has been preferred and it is said that this is a case to which Clause 15 of the Letters Patent does not apply. But I think that contention cannot prevail. To begin with, the words of the clause are sufficiently wide to sanction this appeal. And then, as far back as 1868, Sir Barnes Peacock in Barlow v. Cochrane 2 B.L.R.O.C.J. 56 expressed the view that such an appeal would lie and there is the decision of the Allahabad High Court in Jiwan Ram v. Tivadi Singh 34 A. 13; 8 A.L.J. 1072; 11 Ind. Cas. 305 to the same effect. Therefore, the preliminary objection is overruled.

(2.) On the merits of this appeal, the only question is whether or not the suit is barred by limitation. Mr. Justice Rampini has held that the suit is so barred and for that, he has relied upon a decision in Mohesh Chandra Das v. Hari Kar 9 C.W.N. 376; 32 C. 459 and has found support in his view in his own dissenting judgment in a Full Bench case in Mangun Jha v. Dolhin Golab Koer 25 C. 692; 2 C.W.N. 265. In my opinion, he was wrong. To begin with, his dissenting judgment cannot prevail against the opinion of the four colleagues with whom he sat. In the next place, he has misapprehended the decision of Sir Francis Maclean in Mohesh Chandra Das v. Hari Kar; Hari Charan Fadikar v. Hari Kar 9 C.W.N. 376; 32 C. 459. I deal with that case because the respondent before us has practically limited his contention to this, that we are bound by that decision. First of all, it is necessary to see what the present case is. It is one brought for damages assessed at Rs. 55, and the damage is said to have arisen from the unlawful distraint and misappropriation of paddy crop. The schedule of accounts annexed to the plaint indicates that for which compensation is sought. Then there is a distinct finding by the Munsif that the crop had been cut and being so cut was removed by the defendant, and in the judgment of the lower Appellate Court, it is stated that the appellant s Pleader did not dispute the facts found by the Court below: so that we have a group of facts which constitute a well-known tort and give rise to a well-known form of action. Turning now for a moment to the case in Hari Charan Fadikar v. Hari Kar 9 C.W.N. 376; 32 C. 459 and the decision of Sir Francis Maclean in that case, it is apparent that he was dealing with a different state of facts. It is no answer to say that the plaint in that case is the same as the plaint in this. In estimating the significance of his judgment what we have to see is what the facts were on which his judgment was based. I feel no doubt that his judgment was delivered under the impression that the only wrong in suit was in respect of standing crops. Inasmuch as that was the wrong, Article 29 of the Limitation Act did not apply; and it may be that to a wrong consisting solely in the seizure of standing crops, the Chief Justice was right in thinking that the Article applicable was the general Article 36. At any rate, it was enough for the purpose of that case to apply Article 36, because that afforded an answer to the plea of limitation. In this case, as I have already indicated, the facts are that the suit is in respect of "specific moveable property." Whether it be treated as a suit for property lost or acquired by dishonest misappropriation or conversion or for compensation for wrongfully taking or detaining the same, or as a suit for "other specific moveabls property" or for compensation for wrongfully taking or injuring or wrongfully detaining the same, the period of limitation is three years, and that the facts bring this case within one or other of the two Articles 48 and 49, appears to me to be beyond dispute. In my opinion, therefore, the period of limitation was three years as indicated by those two Articles, and I think Mr. Justice Doss was right and Mr. Justice Rampini was wrong in the view each took. We must, therefore, restore the judgment of the Subordinate Judge with costs in all the Courts.

(3.) This judgment will govern the other appeals in which similar decrees will be passed. Richard Harington, J.