JUDGMENT
1. Defendants 4 and 5 in O.S. No. 298 of 1978 on the file of the Court of Subordinate Judge, Kottayam, are the appellant. The suit is for damages.
2. 5th defendant was conducting a photo studio at Changanacherry by name “Ravi Studio”. There is an open compound belonging to the 1st defendant, behind the studio. Defendants 2 to 4 were employees in the studio. According to the plaintiff, defendants 2 to 5 with the concurrence and knowledge of the 1st defendant planted a galvanised iron wire net just behind the studio without giving any warning that the wire net was alive. One Devassia who is the husband of the 1st plaintiff and father of plaintiffs 2 to 6 and a head-load worker in the Changanacherry market, happened to cross the open comound on his way to the market at about 7.15 a.m. on 8-3-1977, and came in contact with the wire net. He was entrapped by the wire and died at the spot by electrocution. Devasaya was only 37 years old when he died and he was having good physique and earning a daily income of Rs. 40/- to Rs. 50/-. Plaintiffs were completely depending upon his income for their livelihood and therefore the plaintiffs are entitled to get damages of Rs. 1,00,000/-from the defendants, but they limited their claim to Rs. 50,000/-. Despite notice, the defendants did not care to settle the claim of the plaintiffs and hence plaintiffs filed the suit for realisation of damages to the tune of Rs. 50,000/- with 6% interest and costs.
3. In the written statement filed by the 1st defendant he alleged that he is not the owner of the compound in question and pleaded ignorance as to the setting up of the wire net and the making of it alive by electric connection.
4. Defendants 2 to 4 filed a joint written statement denying the alleged setting up of the wire net and putting the plaintiffs to proof of the cause and time of death of Devassya. According to them, Devassya might have trespassed the compound and they owed no duty to any trespassers or burglars and they have not committed any actionable wrong and they are not liable to pay damages.
5. The 5th defendant filed a separate written statement admitting that he is the licensee and manager of Ravi Studio and that defendants 2 to 4 are his employees in the studio. He also admitted that the compound behind the studio belonged to the 1st defendant, but he contended that it was enclosed. He also denied the alleged cause and time of death of Devasya and the setting up of the wire net. According to him Devassya was only a trespasser in the compound and his death might have taken place at some time during the night and due to other reason. He also denied his liability to pay any damages and contended that the suit is barred by limitation. Quantum of damages claimed was also disputed by him.
6. On a consideration of the evidence in the case, the Court below found that the plaintiff has not succeeded in establishing that the 1st defendant is the owner of the compound. However, the Court below found that the 5th defendant as the owner of the studio from where the electric connection was provided and defendants 2 to 4 are the employees of the 5th defendant and therefore they were liable to pay damages to the plaintiff.
7. In this appeal, learned counsel for the appellants has challenged the judgment of the Court below. Learned counsel for the appellants submitted that the 5th defendant was impleaded only on 17-1-1980. The incident occurred on 8-3-1977 and the suit was filed on 15-3-1978. In the original plaint it was stated that the 2nd defendant was the licensee and owner of Ravi Studio. But defendants 2 to 4 denied the said statement. Thereupon, on 8-11-1979 the plaintiff filed I.A. No. 2996 of 1979 for amendment of the plaint in accordance with the following particulars :
“1. In the name and address given for defendants in the description of 2nd defendant ‘owner’ may be deleted.
2. The following person may be added as additional defendant No. 5 :
“Additional Defendant No. 15 Vijayan Ponnara, owner and licensee Ravi Studio, Kavala Changanacherry.”
3. In para 2 of the plaint instead of the 2nd counter petitioner (2nd defendant) the additional defendant No. 5 may be substituted. In the same para instead of counter petitioners 3 to 4′ ‘defendants 2 to 4’ may be substituted.
4. In para 3 of the plaint instead of ‘counter petitioners 2 to 4’ defendants 2 to 5 may be substituted.”
In the affidavit filed in support of the amendment application it is stated by the 1 st plaintiff that Vijayakumar was described as the owner of Ravi Studio according to the information he had when the plaint was prepared. It was also stated that Vijayakumar was described as third accused in a criminal case, but from the written statement filed by defendants 2 to 4 it came to her knowledge that the 5th defendant was the owner of the Ravi Studio. She also averred that the defendants 2 to 4 who are employees of the studio did not disclose the name of the owner of the studio though they stated in the written statement that the 2nd defendant is not the owner. Therefore she obtained a copy of the record of licence concerning Ravi Studio from Changanacherry Municipality and it was found that the licensee of the studio was Vijayan Ponnara, who was sought to be impleaded as 5th defendant in the suit. She also stated that she bona fide believed that the 2nd defendant Vijayakumar and the 5th defendant are one and the same person due to the semblance in the names, that she was an illiterate poor woman and there was none to help her to gather necessary information and it was only when she made further enquiries to find out who exactly was the owner of the said studio that she could reliably understand that 2nd defendant was only an employee of the studio and Vijayan Ponnara was the licensee and owner of the said Ravi Studio. She reiterated in paragraph 6 of the affidavit that 2nd defendant was described as the owner by a bona fide mistake and in the circumstances mentioned the mistake be rectified by necessary correction. This amendment was allowed.
8. Learned counsel for the appellants invited my attention to Order I, Rule 10, Sub-rule (5) of the Code of Civil Procedure which lays down that subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. Section 21 of the Limitation Act, 1963 is the provision corresponding to Section 22 of the Limitation Act, 1877. It lays down that where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party, provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith, it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. In the circumstances it was contended that the 5th defendant could be considered to have been impleaded only on 17-1-1980. It is not disputed that if the suit was instituted only on 17-1-1980 against 5th defendant it is barred by limitation as against him. The Court below has considered this aspect in paragraph 12 of its judgment. The Court below observed that the 2nd defendant was impleaded as the proprietor of Ravi Studio and later it was revealed that he was only an employee and the proprietor is the 5th defendant and accordingly he was sought to be impleaded, and that there was no omission in impleading the proprietor, but only a bona fide misdescription which was subsequently rectified. In that view the lower Court held that the 5th defendant who is undisputably the proprietor of the studio should be deemed to have been on record from the institution of the suit.
9. Learned Subordinate Judge relied on a decision of Lahore High Court in Girdhari Lal v. Dharam Das and another (AIR 1936 Lah 147) in support of his view. The Lahore High Court on the facts of that case, held that there was only a misdescription of the name. The Court observed that admittedly the name of the person who was impleaded was Girdhari Lal and the person who was brought before the Court was another person with the same name and therefore the intention was to implead the real person and so viewed the person who was brought on record subsequently must be deemed to have been on the party array on the date the suit was filed. I am of the view that the Court below was justified in relying on the decision of the Lahore High Court referred to above. The person who was sought to be impleaded was the owner of the Ravi Studio but it was only in the belief that the 2nd defendant was the owner that he happened to be impleaded as the owner of Ravi Studio but knowing the mistake the plaintiff amended the plaint giving the correct description of the owner of the Ravi Studio. In the circumstances, the principle contained in Section 22 of the old Limitation Act cannot have any application in the present case. This apart, under the proviso to Section 21, the Court has power, if it is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
10. Learned counsel for the appellant submitted that in the order passed by the lower Court on I. A. No. 2996/1979 there is no such direction and therefore the proviso is not attracted in the instant case. It is true that no order has been passed by the Court below to the effect thai the suit as regards the 5th defendant shall be deemed to have been instituted on an earlier date. The Supreme Court had occasion to consider a similar question in Munshi Ram v. Nansi Ram and another(AIR 1983 SC 271). From the narration of the facts, in the judgment it is clear that the Court below did not consider the proviso. But the Supreme Court went into the question whether the mistake was committed bona fide and held that in view of the proviso, the Courts below were justified in treating the suit as instituted against the person who was brought on record on an earlier date namely on the date on which the suit was originally filed. It is clear from the affidavit filed by the 1st plaintiff that the mistake was bona fide, and it is a case where the proviso is attracted. The Court below also allowed the application for amendment on the basis that it was a bona fide mistake and also treated the suit as being instituted on the date of the original institution of the suit as against the 5th defendant on that basis. Therefore 1 am unable to agree with the contention of the learned counsel for the appellant that the suit was barred by limitation.
11. It was not contended that Devassya was a trespasser into the compound with some bad or illegal motive and that the defendants did not owe any duty to a person who trespassed into the compound. The evidence of P. W. 1 and P.W. 4 would show that compound was not enclosed by fence or wall on all sides, that the road on the western side of the compound was a busy place and that anybody could enter the compound. In the circumstances defendants cannot escape from liability by contending that Devassya was a trespasser. 1 am amply supported by the decision of the Supreme Court in Cherubin Gregory v. State of Bihar, (AIR 1964 SC 205) : 1964 (1) Cri LJ 138 in this view. It was held therein that the occupier is not entitled to wilfully do acts such as setting up a trap or a naked live wire of high voltage with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespasser.
12. Learned counsel for the appellant also contended that there is no satisfactory evidence to show that Devassya died as a result of electrocution or of electric connection provided by defendants 2 to 5 from the studio through the compound. I am unable to sustain this contention as well. P.W. 2 is the Junior Engineer, Electrical Division. He deposed that he got information that a person died as a result of electric shock and he immediately rushed to the spot and found that the electrocution took place as a result of the connection of live wire from the studio. There is no serious cross-examination of P.W. 2 on this aspect. P.W. 4 deposed that he is an employee of N.N.C. Coffee Trading Company at Changannacherry which is situated quite near to the place of occurrence. He deposed that he heard a sound at about 7 a.m. on 8-3-1977 and on going to the place, he found Devassya lying dead in the open space on the western side of Ravi Studio. He also stated that current was passing from the wire connected from the studio. Learned counsel for the appellants submitted that there are some discrepancies in the evidence of P.W. 4 in regard to the place where the body was found and the inquest report Ext. A-5. On a perusal of the report, I do not find any material discrepancy. As a matter of fact in the evidence of the 2nd defendant who was examined as D.W. 3 he admitted that the body of Devassya was found behind the studio. Therefore I do not find any merit in this contention. Once it is established that the electric connection was taken from Ravi Studio it will not be possible to say that the Court below was not justified in fastening the liability on the 5th defendant and the employees of the studio, as it is obvious that without their consent, concurrence and knowledge such a thing could not have happened.
13. Plaintiffs have filed a cross-objection contending that the Court below was not justified in absolving the 1st defendant of his liability. Plaintiffs have not adduced any evidence to establish that the 1st defendant was the owner. Further he is only a corespondent and it is doubtful whether a cross-objection would lie against him in an appeal filed by defendants 4 and 5. In the cross-objection, the plaintiffs also have taken a ground that the compensation awarded is on the low side. Having regard to the circumstances and evidence in the case, I am of the view that compensation awarded is reasonable and it does not call for any interference. In the circumstances, the cross-objection also fails.
In the result both the appeal and the cross-objection are dismissed. The parties will bear their respective costs.
