Yomphung vs Phungkhayei

This is a second appeal by the defendant in Civil Suit No. 110 of 195657 in the Court of the S.D.O.. Ukhrul. The respondent as plaintiff filed a suit before the S. D. O. on 1791956. The allegations in the plaint are quite interesting. It was stated therein that the respondent's son Yansnnaso was bitten by the appellant's dog, that a case was brought before the Village Authority and a decree was passed on 141956 for a sum of Rs. 99/, as damages which was incurred for the treatment of the said Yangmaso in the Civil Hospital at Imphal and for payment of other incidental expenses, that the appellant refused to pay the said decretal amount and therefore the respondent has ''brought the suit for recovery of Rs. 99/ and for costs of the suit.

In support of the plaint allegation that a suit was brought before the Village Authority, a document was also filed showing the said decree passed by the Village Authority of Nungshong. The said document recited that Yangmaso was bitten by the Appellant's dog, that the owner admitted the said biting, that the Village Authority has decided that the expenditure for treatment of the person in the Hospital and other incidental charges should be borne by the owner of the dog regardless of the normality or abnormality of the dog and that for the said damages for the costs of treatment, the cost of the petition, the cost of Khutlang (engaging another person for the person injured) and other charges expended for the rapid cure of the injured boy. the Village Authority has fixed Rs. 99/ to be paid by the appellant.

The said decree was passed on 1591956. The present suit before the S.D.O. was brought on 1791956. The appellant's plea before the S.D.O. was that his dog did not bite the respondent's son. Evidence was taken in the Court and the S. D. O. found that it was the appellant's dog which bit the respondent's son. Curiously enough the S.D.O. gave a decree that the appellant shall pay Rs. 99/ with costs to the respondent's son.

''2) The appellant took the matter in appeal to the District Judge. The only point raised in appeal was the question of fact, namely, whether it was the appellant's dog that bit the respondent's son. The learned District Judge accepted the respondent's case and held that the suit was rightly decreed and he dismissed the appeal.

(3) Now the appellant has come in second appeal. The point raised in this second appeal is that the S.D.O. had no jurisdiction to try the case And that the decree passed by him was illegal. It was pointed out that the respondent had already brought a suit before the Village Authority and obtained a decree and that a second suit on the same cause of action before the S.D.O. was incompetent and that this was lost sight of by the S.D.O. It was also urged that the suit was one on tort and that the respondent had no right to sustain an action for damages when the person aggrieved was his son Yangmaso and that in a suit brought by the respondent no decree ought to have been given in favour of the respondent's son as the S.D.O. has done. This latter point was not taken in the grounds of appeal, but was raised at the time of arguments.

(4) I shall take up the question of jurisdiction first. It is a fact that the respondent first brought a suit before the Village Authority for the damages sustained by his son as a result of the biting by the appellant's dog. The fact that such a suit was brought before the Village Authority and a decree was obtained against the appellant for Rs. 99/ is recited in the plaint itself. Actually the plaint would read as if it was an application for execution of the said decree. But the S.D.O. treated it as a suit. The decree of the Village Authority which was produced before the S.D.O. showed that it was decree not on 141956 as stated in the plaint, but only on 1591956. We have, however, no information as to the date on which the suit was filed before the Village Authority.

(5) Under the Manipur State Hill Peoples Regulation, 1947, the Village "Authority in the Hill areas had jurisdiction to try civil suits the value of which did not exceed Rs. 500/ in which both the parties resided within their jurisdiction. Such jurisdiction continued until the Manipur Courts Act, 1955 came into force and until the S.D.Os. and the S.D.Cs. in the Hill areas were invested with the powers of a Civil Court under S. 39 of the said Act. The Manipur Courts Act, 1955, came into force on 2421956, when it was published in the Manipur Gazette. The S.D.Os. were invested with the powers of a civil court on 131956. Again, under S. 44 of the said Act, any suit pending in a Court immediately before the commencement of the Act, shall upon the commencement be deemed to be transferred to the Court exercising jurisdiction under the Act.

Thus, it is clear that when the Manipur Courts Act. 1955 came into force, the Village Authorities in the Hill areas ceased to have any jurisdiction to try civil cases. Thus, if this suit was brought before the Village Authority after 131956, the Village Authority did not have jurisdiction to entertain the suit. Even if the suit had been filed before the. Village Authority before the Act came into force the suit stood transferred to the S.D.O. on that commencement of the Act and the Village Authority had no further jurisdiction to deal with the suit. Thus the decree passed in this case by the Village Authority on 1591956 in favour the respondent was one passed without jurisdiction hence void. Such a void decree cannot be subsequent suit regularly brought before the Session on the same cause of action. Hence the son of the appellant that the S.D.O. did not have jurisdiction must fail.

(6) The second point raised by the appellant at the time of arguments was never taken by him in any of the Courts below nor even in the grounds of appeal. It is a pure question of law and goes to the very root of the whole matter and one cannot understand why the point was not taken up in any of the Courts. The appellant's contention was that the respondent had no locus standi to file the suit. It was pointed out that the person bitten by the appellant's dog was the respondent's son and damages if any, were sustained by him and not by the respondent.

It was further pointed out that even if the respondent had spent the money for the treatment of his son he had no claim by way of tort against the appellant. For the respondent it was urged that this point should not be allowed to be taken up at the stage of argument for the first time and that it this question had been taken up earlier in any of the lower Courts he could have amended his plaint and brought his son on record.

(7) I am unable to understand why the lower Courts failed to note this fatal flaw to the suit. It is a wellknown principle that in an action for tort only the person who sustained the damages can come forward with a suit. It was stated that the respondent's son was a minor and hence the suit was brought by the respondent on behalf of the minor. If that was so, the proper course was to bring the suit under Order 32 C. P. C. The minor himself ought to have brought the suit represented by a next friend. In any case, the respondent by himself had no locus standi to file the suit. Even if it was the respondent who spent for the treatment of his son he cannot claim it himself from the appellant as there was no kind of privity as between them. Curiously enough I find from the judgment of the S. D. O., that after giving a finding that it was the appellant's dog that bit the respondent's son he ordered that the appellant shall pay Rs. 99/ with costs to the respondent's son. One fails to see how he could have given such a decree at all in favour of the respondent's son in a suit brought by the respondent.

(8) I have allowed the appellant to raise this point for the first time at the time of the arguments even in second appeal, because this was a question which went to the very root of the matter and for which the respondent had no answer at all. This argument must therefore prevail and thee suit filed by the respondent has got to fail. If the respondent's son is still a minor there would be question of limitation involved and he could come forward with a suit against the appellant. As far as the present suit is concerned, it set be dismissed.

(9) The appeal is, therefore, allowed and the ordered by the respondent is dismissed. As this was taken up for the first time in the course arguments, I disallow the costs of the appellant and direct that both parties shall bear their own costs in all the Courts.