IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1140 of 1996
1. T.A.KRISHNAN
... Petitioner
Vs
1. CHITHRAN
... Respondent
For Petitioner :SRI.C.M.NAZAR
For Respondent :SRI.VAKKOM N.VIJAYAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated : 03/06/2005
O R D E R
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C.R.P. NO. 1140 OF 1996 B@@
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.HE 1
The petitioner in Indigent O.P.No.1 of 1994, on
the file of the court of the Munsiff of Vaikom is the
revision petitioner. The court below rejected the
Indigent O.P. on the ground that as on the date of the
Petition, the suit is barred by limitation.
2. The petitioner claimed a sum of Rs.15,000/as
damages in the plaint. It is alleged that the
respondents attacked the petitioner with dangerous
weapons on 10.5.1985 and caused grievous injuries. The
petitioner was taken to the hospital and after the
treatment for 41 days, he was discharged from the
hospital on 20.6.1985. Criminal proceedings were
initiated against the respondents in C.C.No.344 of 1985.
The criminal court found the respondents guilty of the
offence and convicted and sentenced them to undergo
imprisonment. On appeal by the respondents, the
Appellate Court acquitted respondents 3 to 7 and a
lesser sentence was imposed on respondents 1 and 2. The
High Court confirmed the decision of the Appellate Court
in revision. The sentence was executed on 8.10.1993.
The present suit is sought to be filed as an indigent
person claiming damages of Rs.15,000/- from the
respondents in respect of the incident involved in the
criminal case. It is stated in the plaint that the
cause of action for the suit arose on 10.5.1985,
31.12.1988, 1.3.1991, 11.8.1992 and 8.10.1993, the dates
being respectively the date of occurrence, date of the
trial court judgment, the date of the appellate
judgment, date of disposal of the criminal revision
petition by the High Court and the date of execution of
the sentence.
3. The court below held that the petitioner has
no means to pay the court fee. However, the court below
held that the suit would be barred by limitation as the
cause of action arose on 10.5.1985 and the Indigent O.P.
was filed only on 11.2.1994. The court below held that
Article 113 of the Limitation Act applies and the period
of limitation is three years from the date on which the
right to sue accrues. The court below rejected the
contention of the petitioner that the right to sue
accrued only on 8.10.1993, the date of execution of the
sentence. The court below also rejected the alternative
contention that the right to sue accrued only on
11.8.1992, the date of disposal of the criminal revision
petition.
4. It is not disputed that Article 113 of the
Limitation Act applies to the case and that the period
of limitation is three years from the date when the
right to sue accrued. It is also not disputed that the
trial court is entitled to reject the application for
permission to sue as an indigent person under Order
XXXIII Rule 5(f) of the Code of Civil Procedure if the
suit is barred by limitation as on the date of the
filing of the indigent O.P.
5. The counsel for the petitioner raised a
contention that the period of limitation begins to run
not from the date of occurrence but from the date of the
final judgment by the High Court in criminal revision
petition. The reason for this submission, according to
him, is based on Section 357 of the Code of Criminal
Procedure.
6. Section 357 of the Code of Criminal
Procedure (omitting unnecessary portions) reads thus:
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“357. Order to pay@@
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compensation:(1) When a Court imposes a@@
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sentence of fine or a sentence (including a
sentence of death) of which fine forms a
part, the Court may, when passing judgment
order the whole or any part of the fine
recovered to be applied —
(a) ..... ...@@
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(b) in the payment to any person of@@
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compensation for any loss or injury
caused by the offence, when
compensation is, in the opinion of
the Court, recoverable by such
person in a Civil Court;
(c) when any person is convicted of any@@
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offence for having caused the death
of another person or of having
abetted the commission of such an
offence, in paying compensation to
the persons who are, under the
Fatal Accidents Act, 1855 (13 of
1855), entitled to recover damages
from the person sentenced for the
loss resulting to them from such
death;
(d) .... .....@@
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(2) If the fine is imposed in a
case which is subject to appeal, no such
payment shall be made before the period
allowed for presenting the appeal has
elapsed, or if an appeal be presented,
before the decision of the appeal.
(3) When a Court imposes a
sentence, of which fine does not form a
part, the Court may, when passing judgment
order the accused person to pay, by way of
compensation such amount as may be
specified in the order to the person who
has suffered any loss or injury by reason
of the act for which the accused person has
been so sentenced.
(4) An order under this section
may also be made by an Appellate Court or
by the High Court or Court of Session when
exercising its powers of revision.
(5) At the time of awarding
compensation in any subsequent civil suit
relating to the same matter, the Court
shall take into account any sum paid or
recovered as compensation under this
section.”
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.SP 2
7. Under Section 357 of the Code of Criminal
Procedure, the criminal court may award compensation to
the victim either under subsection (1)(b) or under
subsection (3). When the court imposes a sentence of
fine or a sentence of which fine forms a part, the court
may award compensation to any person for any loss or
injury caused by the offence under clause (b) of
subsection (1) of Section 357, if in the opinion of the
court compensation is recoverable by such person in a
civil court. Even when the fine does not form part of
the sentence, the court may award compensation to the
.PL 51
victim, payable by the accused person, as per subsection
(3) of Section 357. It is not provided in subsection (3)
of Section 357 that the person to whom compensation is to
.PL 54
be awarded must be a person who could recover such
compensation in a civil court, as is the case in clause
(b) of subsection (1) of Section 357 of the Code of
Criminal Procedure. Subsection (4) provides that the
Appellate Court or the Revisional Court may also pass an
order under Section 357. Relying on subsection (5) of
Section 357, the counsel for the petitioner contended
that since the civil court shall take into account any
sum paid or recovered as compensation under Section 357
of the Code of Criminal Procedure, at the time of
awarding compensation in the civil suit, it is to be held
that the period of limitation for filing the suit starts
from the date of disposal of the criminal case.
Therefore, it is contended that the victim could wait
till the disposal of the criminal case and his right to
file a civil suit for compensation could be reckoned from
the date of disposal of the criminal case.
8. I do not agree with the contentions raised by
the counsel for the petitioner on the question of
limitation, for the following reasons:
The Limitation Act, 1963 is an exhaustive Code.
In A.S.K.Krishnappa Chettiar and others v. S.V.V.Somiah@@
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@ Navniappa Chettiar and another (AIR 1964 SC 227) the@@
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Supreme Court held that:
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“… The Limitation Act is a
consolidating and amending statute relating
to the limitation of suits, appeals and
certain types of applications to courts and
must, therefore, be regarded as an
exhaustive Code. It is a piece of
adjective or procedural law and not of
substantive law. Rules of procedure,
whatever they may be, are to be applied
only to matters to which they are made
applicable by the legislature expressly or
by necessary implication. They cannot be
extended by analogy or reference to
proceedings to which they do not expressly
apply or could be said to apply by
necessary implication……”
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In Nagendra Nath Dey and another v. Suresh Chandra Dey@@
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and others (AIR 1932 Privy Council 165), the Privy@@
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Council held:
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“The fixation of periods of
limitation must always be to some extent
arbitrary, and may frequently result in
hardship. But in construing such
provisions equitable considerations are out
of place, and the strict grammatical
meaning of the words is the only safe
guide.”
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In General Accident Fire & Life Assurance Corporation@@
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Ltd. v. Janmahomed Abdul Rahim (AIR 1941 Privy Council@@
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6), the following passage from Tagore Law Lectures was
quoted with approval:
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“A law of limitation and
prescription may appear to operate harshly
or unjustly in particular cases, but where
such law has been adopted by the state ….
it must if unambiguous be applied with
stringency. The rule must be enforced even
at the risk of hardship to a particular
party. The Judge cannot on equitable
grounds enlarge the time allowed by the
law, postpone its operation, or introduce
exceptions not recognized by it.”
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The Privy Council in the said decision held:
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“Very little reflection is
necessary to show that great hardship may
occasionally be caused by statutes of
limitation in cases of poverty, distress
and ignorance of rights; yet the statutory
rules must be enforced according to their
ordinary meaning in these and in other like
cases.”
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The decisions in AIR 1932 PC 165 and AIR 1941 PC 6 were
quoted with approval in Bootamal v. Union of India (AIR@@
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1962 SC 1716).
9. In Balakrishnan v. Mohammed Basheer and@@
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others (1999(2) KLJ 758) this Court held that:@@
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“The law of limitation is not an
equitable statute. It is a statute of
repose. It is enacted pursuant to a public
policy that legal rights ought to be
enforced through courts within a time frame
and stale causes of action should not be
permitted to be agitated.”
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.SP 2
10. There is no law of limitation outside the
Limitation Act excepting specific provisions of
limitation for suits or proceedings contained in some
specified Acts. The Limitation Act forbids suits or
proceedings being brought after the period prescribed
which commences from some definite event. “Period of
limitation” as defined in the Limitation Act means the
period of limitation prescribed for any suit, appeal or
application by the Schedule and “prescribed period” means
the period of limitation computed in accordance with the
provisions of the Limitation Act. The purpose of the
Limitation Act is not to give a right where there is
none. It is intended to impose a bar on filing suits and
initiating proceedings after a certain period. Section
29 of the Limitation Act provides that where any special
or local law prescribes for any suit, appeal or
application a period of limitation different from the
period prescribed by the Schedule, the provisions of
Section 3 shall apply as if such period were the period
prescribed by the Schedule and for the purpose of
determining any period of limitation prescribed for any
suit, appeal or application by any special or local law,
the provisions contained in Section 4 to 24 shall apply
only in so far as, and to the extent to which, they are
not expressly excluded by such special or local law.
Section 3 of the Limitation Act is peremptory; every suit
instituted, appeal preferred and application made, after
the prescribed period shall be dismissed, although
limitation has not been set up as a defence. If any
special or local law prescribes a period different from
the period provided in the Limitation Act, the period of
limitation provided in such special or local law would
apply. It cannot be said that Section 357 of the Code of
Criminal Procedure provides for a period of limitation
different from the period prescribed by the Schedule to
the Limitation Act, 1963. In fact, no period of
limitation is provided in Section 357 of the Code of
Criminal Procedure. Therefore, there is no question of
any period of limitation being different from the period
of limitation provided in the Limitation Act.
11. It is a well settled principle of
interpretation of statutes that the provisions of a
statute ought not to be used for the purpose of defeating
the legislative mandate of another statute. The
provision for awarding compensation under Section 357 of
the Code of Criminal Procedure does not have any
relevance in computing the period of limitation for
filing a suit for compensation. Subsection (5) of
Section 357 of the Code of Criminal Procedure which
provides that at the time of awarding compensation in the
civil suit, the Court shall take into account any sum
paid or recovered as compensation, does not govern the
period of limitation for filing the suit. It has
relevance only in fixing the compensation to be paid to
the plaintiff in the suit. Such a provision of law which
has only such relevance in the matter of fixation of the
quantum of compensation cannot be interpreted as
governing the period of limitation. The suit for
compensation is to be filed within the specified period
from the date of accrual of the cause of action. It
cannot be said that the cause of action for filing a suit
for compensation would accrue on the disposal of the
criminal case in which compensation is awarded under
Section 357 of the Code of Criminal Procedure. The
chance of the criminal court awarding compensation to the
victim under Section 357 of the Code of Criminal
Procedure would not constitute a cause of action for
filing a suit for compensation. On the other hand, the
cause of action for the suit is the tortious act and not
the awarding of compensation under Section 357 of the
Code of Criminal Procedure. In a given case, the
criminal court may or may not grant compensation even
after holding that the accused person is guilty and
liable to sentence of fine. Or, in a case where no fine
is imposed, the Criminal Court may or may not be inclined
to grant compensation to the victim under subsection (3)
of Section 357 of the Code of Criminal Procedure. The
award of compensation under Section 357 of the Code of
Criminal Procedure is only a chance and not a specified
certain event. It does not create a cause of action for
the awardee of compensation for claiming more
compensation. It does not take away or abridge the
accrued right of the victim to claim compensation. When
a right to institute a suit accrues, nothing prevents the
running of the period of limitation. In the criminal
case, the final report may be filed by the police after
quite some time from the date of the incident. The cause
of action for filing a suit for compensation accrues on
the date of the incident in which the plaintiff suffers
loss or injury and the period of limitation for filing
the suit for compensation begins to run from that date.
The initiation of criminal proceedings would not stop the
running of the period of limitation for filing the suit.
Period of limitation does not get arrested by the
pendency of the criminal proceedings. No exclusion of
the period of limitation is possible under the Limitation
Act to exclude the period covered by the pendency of the
criminal proceedings. Awarding compensation under
Section 357 of the Code of Criminal Procedure is in the
discretion of the criminal court. Compensation may or
may not be granted by the criminal court. It does not
govern the proceedings in the civil suit. The only
relevance of the compensation being awarded in the
criminal case is on the question of the quantum of
compensation to be awarded in the civil suit. If the
civil suit has already been disposed of before the
disposal of the criminal case and compensation has
already been awarded to the plaintiff, that may be a
ground for denying compensation under Section 357 of the
Code of Criminal Procedure; or it may be a ground even
for not imposing fine out of which compensation could be
awarded to the victim. It is well settled that a finding
by the criminal court is not binding on the civil court.
Section 357 is an exception to the said rule to the
limited extent of the judgment of the criminal court
being relevant for the fixation of the quantum of
compensation in the civil suit for damages.
For the reasons stated above, I am of the view
that the court below was justified in rejecting the
Indigent O.P. No interference is called for in this
revision. The Civil Revision Petition is accordingly
dismissed. No order as to costs.
.SP 1
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C.R.P.NO. 1140 OF 1996
O R D E R
3rd June, 2005
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