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Judgment
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Valmiki J. Mehta, J",,,
C.M. Appl. No. 40360/2017 (for exemption) in CMI No. 8/2017,,,
C.M. Appl. No. 40363/2017 (for exemption) in CMI No. 9/2017,,,
C.M. Appl. No. 40366/2017 (for exemption) in CMI No. 10/2017,,,
Exemptions allowed, subject to all just exceptions.",,,
CMs. stand disposed of.,,,
C.M. Appl. No. 40362/2017 in CMI No. 8/2017,,,
C.M. Appl. No. 40365/2017 in CMI No. 9/2017,,,
C.M. Appl. No. 40368/2017 in CMI No. 10/2017,,,
(for condonation of delay of 6 days in re-filing),,,
For the reasons stated in the applications the same are allowed and the delay of six days in re-filing the CMIs stand condoned.
C.M. Appl. No. 40577/2017 in CMI No. 8/2017,,,
C.M. Appl. No. 40576/2017 in CMI No. 9/2017,,,
C.M. Appl. No. 40575/2017 in CMI No. 10/2017,,,
(for condonation of delay of 1142 days in filing),,,
Since the petitioners were pursuing the remedy of review petitions, and delays have occasioned in filing of these CMIs on account of pendency and" disposal of the review applications, delays in filing the CMIs are condoned."
C.Ms. stand disposed of.,,,
CMI No. 8/2017 and C.M. Appl. No. 40361/2017 CMI No. 9/2017 and C.M. Appl. No. 40364/2017 CMI No. 10/2017 and C.M. Appl.
No. 40367/2017 (under Order XLIV Rule 1 CPC),,,
These applications are allowed and appellants/plaintiffs are allowed to sue as pauper. It is noted that as per Order XXXIII CPC if in a suit permission is given to the plaintiff to sue as an indigent/pauper then such permission continues for the appeal.
These CMIs are therefore allowed and the matters be categorized as RFAs and be numbered accordingly.
C.Ms. stand disposed of.,,,
RFA No. ____/2017 (to be numbered as ordered in CMI No.8/2017,,,
This first appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit impugning the judgment of the trial" court dated 11.8.2014. By the impugned judgment the suit filed by the appellant/plaintiff seeking compensation and damages against Municipal Corporation of Delhi (MCD)/respondent no.1/defendant no.1, Government of National Capital Territory of Delhi (GNCTD)/respondent no.2/defendant" no.2 and Sh. Tilak Raj Khanna the owner of the factory R.K. Plastics Factory/respondent no.3/defendant no.3 has been dismissed as it was barred by
time. The suit plaint was rejected by allowing the application under Order VII Rule 11 CPC filed by the defendant no.1 in the suit i.e MCD and which entity is the respondent no.1 in this appeal.
The facts of the case are that the appellant/plaintiff is a minor and he filed the suit through his father and next friend seeking damages on account of fact that on 28.12.2002 at about 8 AM a fire broke out in the factory of the respondent no.3/defendant no.3. It was pleaded in the plaint that the factory was illegally and unauthorizedly being run by the respondent no.3/defendant no.3 without any licence. The factory of respondent no.3/defendant no.3 was pleaded to be manufacturing glasses and was being run unauthorizedly in a residential area. The fire occasioned in the factory of respondent no.3/defendant no.3 was on account of blast of boiler which was installed in the factory. The appellant/plaintiff is pleaded to have severe burn injuries to the extent of 80%. It was pleaded in the plaint that the respondent nos.1 and 2/defendant nos.1 and 2 ought to have ensured that the factory of the respondent no.3/defendant no.3 was not allowed to function from the residential area in violation of law but the respondent nos.1 and 2/defendant nos. 1 and 2 failed to take any action. Appellant/plaintiff was pleaded to be around 10 years at the time of accident.
In the plaint, it was therefore pleaded that because of negligence of the respondent nos. 1 and 2/defendant nos.1 and 2 as also the respondent" no.3/defendant no.3, the appellant/plaintiff has sustained burn injuries, therefore, a sum of Rs. 15 lacs damages be awarded in favour of the" appellant/plaintiff and against the respondents/defendants.
The injury of the appellant/plaintiff was occasioned on account of fire in the factory of the respondent no.3/defendant no.3 on 28.12.2002. The subject suit was filed on 4.6.2010. The suit was therefore filed after around 7 ½ years of the incident on 28.12.2002. The issue is that whether the suit is time barred, and therefore, the suit plaint should be rejected under Order VII Rule 11 CPC."
It is seen that the appellant/plaintiff had filed a civil writ petition in this Court bearing no.748-50/2006 on 17.1.2006 and which was allowed to be withdrawn vide order dated 25.8.2009 with liberty to file a suit. The period of pendency of the writ petition in this Court from 17.1.2006 till 25.8.2009 is excluded by giving the appellant/plaintiff benefit of Section 14 of the Limitation Act, even then the subject suit which was filed on 4.6.2010 was barred" by limitation because the limitation period for filing the present suit would be either one year or three years in terms of Articles 72 and 113 of the Limitation Act, and which Articles read as under:-"
Article,Description of suit,Period of Limitation,"Time from which period begins to run 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",One year,"When the act or omission takes place.
113.,"Any suit for which no period of limitation is provided elsewhere in this Schedule",Three years,"When the right to sue accrues.