idu Mian Vs. Rahmat Ullah

idu Mian vs Rahmat Ullah

Type Court Judgment Court Allahabad Decided Dec 31, 1969

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Citation: sooperkanoon.com/449255
Court: Allahabad High Court
Judge: Aikman, J.
Decided On: Dec 31, 1969
Subject: Limitation

Case Summary

AI-generated summary - not the official court judgment text.

Act No. XV of 1877 (Indian Limitation Act), Schedule II, Articles 20 and 42 - Limitation--Suit for compensation for wrongful seizure of movable property under legal process--Suit for compensation for injury caused by an injunction wrongfully obtained. - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fun...

Key legal issue: Limitation

Parties & Advocates

Appellant / Petitioner

idu Mian

Respondent

Rahmat Ullah

Legal References

Reported In: (1902)ILR24All146

Excerpt

.....schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as..........which the plaintiff is kept out of his property is an element in assessing the damage. this consideration leads me to think that article 42 should be applied to this case. it was owing to the action of the defendant that an injunction was issued by the court which prevented the order for the release of the property in the plaintiff's favour being carried out. the facts of this case are similar to those in the case of haji pir muhammad v. thakur das decided by the chief court of the panjab on the 2nd of february, 1881--vide number 40 of the civil judgments of 1881. the learned judges there held that the continuance of the attachment under the order of the court must be treated as an injunction under section 492 of the code of civil procedure, and an injunction wrongfully obtained by the defendant. they accordingly applied article 42 to the case. it is quite true that the plaint in this case has not been artistically framed. still it clearly sets forth the wrongful attachment of the soap, and alleges that 'the defendant by means of continued litigation did not allow it to be released for sixteen months.' as stated above, it was not until the date of the release that the plaintiff was in a position to estimate the damage which he had suffered. he instituted his suit within a little more than three months from the date of the release, and within six months of the date of the final dismissal of the defendant's suit under section 283. this being so, it appears to me impossible to hold that the plaintiff's suit was out of time. i allow the appeal, and, setting aside the decree of the court below, remand the case to that court under section 562 of the code of civil procedure for disposal of the remaining grounds raised in the memorandum of appeal to it. the plaintiff will have the costs of this appeal in any event. the other costs will abide the result.

Full Judgment

Aikman, J.

1. The following are the facts out of which this suit has arisen. The respondent, Sheikh Rahmat-ullah, held a decree against one Ghurbin, in execution of which, on the 18th of February, 1898, he attached upwards of twenty maunds of native soap as the property of his judgment-debtor. Idu Mian, the plaintiff in this case, intervened and claimed the soap as his own. His objection was sustained, and the soap was ordered to be released from attachment. Sheikh Rahmat-ullah immediately instituted a suit under Section 283 of the Code of Civil Procedure, to have it declared that the soap was the property of his judgment-debtor, Ghurbin. This suit was instituted on the 10th of August, 1898. On the same day Sheikh Rahmat-ullah put in an application to the Court, asking that the order for the release of the soap in Idu Mian's favour should not be carried out, and that the soap should be retained in the possession of the person to whom it had been made over until the decision of the suit which he (Rahmat-ullah) had instituted. The Munsif granted this application. In the result the suit of Rahmat-ullah under Section 283 was dismissed on the 21st of December, 1898, and that decision was affirmed on appeal on the 23rd of March, 1899. The Result of this litigation, therefore, shows that the attachment of the plaintiff's soap by the respondent, Rahmat-ullah, was wrongful. It is admitted that Idu Mian did not get back his soap until the 17th of June, 1899. The plaintiff states that when he got it back, he found that it was not only diminished in quantity, but greatly deteriorated in quality. He accordingly sues to recover Rs. 273-11-0 for damages caused by this wrongful attachment. The defendant denies that the plaintiff has suffered any damage. The Court of first instance gave the plaintiff a decree, assessing the damage at Rs. 113-12-0. Both parties appealed. On appeal the learned Subordinate Judge dismissed the suit, holding that it was barred by the provisions of Article 29 of Schedule ii of the Indian Limitation Act, which provides a period of one year's limitation running from the date of the seizure for a suit for compensation for wrongful seizure of movable property under legal process. The plaintiff comes here in second appeal. It is argued that the case is one which falls properly under Article 42 of Schedule ii of the Limitation Act, which provides a period of three years' limitation for a suit for compensation for injury caused by an injunction wrongfully obtained, the time beginning to run from the date when the injunction ceases. It appears to me that it would be unjust to apply the provisions of Article 29 to a suit of this nature when the plaintiff got back his property upwards of a year after the date of the seizure. Until he recovered his property, it was impossible for him to say whether the property had or had not been damaged. Again, the length of time during which the plaintiff is kept out of his property is an element in assessing the damage. This consideration leads me to think that Article 42 should be applied to this case. It was owing to the action of the defendant that an injunction was issued by the Court which prevented the order for the release of the property in the plaintiff's favour being carried out. The facts of this case are similar to those in the case of Haji Pir Muhammad v. Thakur Das decided by the Chief Court of the Panjab on the 2nd of February, 1881--vide number 40 of the Civil Judgments of 1881. The learned Judges there held that the continuance of the attachment under the order of the Court must be treated as an injunction under Section 492 of the Code of Civil Procedure, and an injunction wrongfully obtained by the defendant. They accordingly applied Article 42 to the case. It is quite true that the plaint in this case has not been artistically framed. Still it clearly sets forth the wrongful attachment of the soap, and alleges that 'the defendant by means of continued litigation did not allow it to be released for sixteen months.' As stated above, it was not until the date of the release that the plaintiff was in a position to estimate the damage which he had suffered. He instituted his suit within a little more than three months from the date of the release, and within six months of the date of the final dismissal of the defendant's suit under Section 283. This being so, it appears to me impossible to hold that the plaintiff's suit was out of time. I allow the appeal, and, setting aside the decree of the Court below, remand the case to that Court under Section 562 of the Code of Civil Procedure for disposal of the remaining grounds raised in the memorandum of appeal to it. The plaintiff will have the costs of this appeal in any event. The other costs will abide the result.

Same Parties idu Mian vs Rahmat Ullah Same Subject Limitation Same Judge Aikman, J.

Limitation