Jawali vs Joginder Singh and Others

N.K. Kapoor, J.—This is Defendant''s regular second appeal against the judgment and decree of the Additional District Judge dismissing the appeal filed against the judgment and decree of the trial Court.

Facts of the case lie within a very narrow compass. Lachhman Dass Defendant leased out land measuring 96 Kanals 17 Marias for digging earth as per details given in the plaint for a period of 12 years at the rate of Rs. 3,000/- per killa for a total amount of Rs. 36,000/- per annum. As per terms of the lease deed, the Plaintiff was to dig earth to the extent of 4 feet and a lease deed was executed by Defendant No. 2 in favour of the Plaintiff. It Is alleged that the Defendant did not allow the Plaintiff to dig earth from Killa Nos. 16, 25 of rectangle No. 17, Killa No. 20, 21 of rectangle No. 16 and Killa No. 1 of rectangle No. 19 and so the Plaintiff claimed a sum of Rs. 20,000/- as damages.

Defendants No. 1, 3 and 4 contested the suit, inter alia, on the ground that the suit is bad for misjoinder of Defendants No. 3 and 4; that the suit is time barred; that the Plaintiff is barred by his act and conduct; that the Plaintiff is guilty of breach of contract as he has dug earth from 8 killas out of 12 killas to the extent of 7 to 8 feet against the agreement which was for digging earth upto four feet deep only.

On the pleadings of the parties a number of issues were framed. The trial Court ultimately decreed the suit for a sum of Rs. 20,000/- with costs.

Before the appellate Court, the matter was again agitated. The lower appellate Court examined the matter in all its details and finally came to the conclusion that the Plaintiff is entitled to be awarded damages for a sum of Rs. 12,000/-. Accordingly, the decree of the trial Court was modified to that extent.

Before me, Learned Counsel for the Appellant has primarily challenged the findings of the Court below in respect of issue No. 2 which reads as, "whether the suit is within limitation ? OPP". According to the counsel, admittedly, lease deed Exhibit P-1 was executed in the year 1969 and the lease was to commence form 21.3.1969 whereas the suit has been filed on 1.6.1979 which per se is beyond limitation. According to the counsel, as per case set up by the Plaintiff the Defendants prevented him digging earth from an area approximately four acres from the very inception of the lease deed and so cause of action, in fact, arose to the Plaintiff some time in the year 1969 and such a suit could only be filed within three years of such a breath. To support his legal submission, the counsel placed reliance upon the decision in case reported as Bai Manchha widow of Nathubhaj v. Sardar Sajjadanasin Saiyad Mahammed Baker-el-Edros AIR 1963 Guj 168h; Marimuthu Gounder v. Ramaswamy Gounder AIR 1979 Mad 1891; and Rameshwar Proshad Khandelwal v. Commissioner Land Reforms Jagirs, Madhya Bharat (now Madhya Pradesh) and Ors. AIR 1959 SC 498.

On the other hand, Learned Counsel for the Respondent argued that present is a case of continuing breach and so as per Section 22 of the Limitation Act afresh period of limitation begins to run at every moment of the time during which the breach or tort, as the case may be, continues. Elaborating, the counsel argued that the Plaintiff has time to dig the land during the period of lease i.e. from the year 1969 to 1981 and so the present suit is well within limitation as per Article 55 of the Limitation Act.

Having heard Learned Counsel for the parties, I am of the view that the plea raised by the Appellant is devoid of any substance. Admittedly, the Plaintiff was given land measuring 96 Kanlas 17 Marias on lease for digging earth for making bricks for a period of 12 years for a consideration of Rs. 3,000/- per acre. Concededly, the Plaintiff had not been permitted to dig earth from the laid measuring 4 acres thereby causing monetary lost to him. As averred by the Plaintiff, a suit was filed by the Defendants restraining the Plaintiff from digging earth from the land now subject matter of the suit. Restraint order was passed against the Plaintiff which was later on vacated by the Court on 13.11.1975. Still not satisfied with the orders of the Court, the Defendants preferred an appeal and procured exparte stay order against the Plaintiff which ultimately was vacated on 10.2.1976. Even after the vacation of the order dated 10.2.1976, the Defendants did not allow the Plaintiff to dig out earth from the above land leading to security proceeding between the parties and it is in these circumstances that ultimately a suit was filed on 1.6.1979. Section 22 and Article 55 of the Limitation Act read as under:

Continuing breaches and torts: In the case of a continuing beach 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 tort, as the case may be, continues.

Article 55:

Description of suit, Period of Limitation. Time from which period begins to run.

For compensation for the breach of any contract, express or implied not herein specially provided for - Three years - When the contract is broken or (where there are successive beaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases.

As per Section 22 of the Limitation Act, in the case of a continuing breach of contract or in the case of the continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or tort, as the case may be. continues and, according to Article 55 of the Limitation Act, in case of successive breaches, such a suit can be filed at each such breach within a period of three years therefrom. Since the present suit is of continuing breach, the Plaintiff could bring suit at each such successive breach of the contract. This way the suit filed was well within limitation.

To be fair the counsel, the judgments relied upon, in fact, have no bearing on the point in controversy. In Rameshwar Proshad Khandewal''s case (supra) the apex Court examined the effect of unauthorised extension of period of contracts of Forest Officers in the light of Articles 19(1)(f) and 32 of the Constitution of India. On facts, it was held that though the forest officers had allowed the Petitioners to work in the forests, there was no legal transfer of the title to the trees in favour of the Petitioners at any time either by grant of fresh contract or by the extension of the period of the contracts, which expired on June 30, 1954. It was accordingly held that the Petitioners could not claim that the property in the trees in the (sic) passed to the legally....

Similarly, the decision in Marimuthu''s case (supra) relates to awarding of damages for breach of contract in terms of Section 74 of the Contract Act. In the case cited, it has been held that proof of actual damages is a sine qua non to seek damages. The person claiming has to plead such amount and to further substantiate it by acceptable evidence. In the present case, the Plaintiff has claimed damages n the sum of Rs. 20,000/- and has adduced evidence in support of this claim. Both the Courts after examining the evidence led and also keeping in view the terms of the lease-deed have evaluated the damages. Thus, this judgment too hardly advances the case of the Appellant.

In Bai Manchha''s case (supra), the Court was examining the question whether certain acts amount in a continuing wrong within the meaning of Section 23 of the Limitation Act (1908). On facts, it was held that Section 23 of the Limitation Act is not applicable. In this judgment reference has been made to the decision of the Apex Court in case reported as Balkrishan Sevalram Pujari v. Shree Dhyaneshwar Maharaj Sangthan and Ors. (sic) 1959 SC 798, as to the test to be applied for deciding as to what constitutes a continuing wrong. The observations of the Apex Court noticed by the Bench read as under:

In dealing with the argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing course of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting the act may continue. If, however, a wrongful act is of such a character that the injury caused by itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 27 can be invoked.

Present is a case of continuing wrong resulting in damages. It is not the case of the Defendant in the written statement that he has no objection to the digging of land which was leased out vide lease deed duly executed between the parties. As per terms of the lease deed, the same was to be operative for a period of 12 years. Thus, it is a case of continuing wrong and in terms of Section 22 of the Limitation Act, 1963 (earlier Section 23 of the Limitation Act (1908) it being a continuing wrong gives a fresh period of limitation on the occasion of any successive breach. Thus, on facts, the above cited judgment also does not help the Appellant in any manner.

Resultantly, finding no merit in the appeal, the same is dismissed parties will, however, bear their own costs.