# AMAR CHAND !NANI v. UNION OF INDIA

- **Citation:** [1973] 2 S.C.R. 684
- **Court:** Supreme Court of India
- **Decided:** 1972-10-13
- **Case number:** Civil Appeal No. 1270 of 1969
- **Bench:** A. N· Grover, K. K. Mathew, A. K. MuKHERJEA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amar-chand-nani-v-union-of-india-5888
- **Pages:** 7

## Headnote

'Indian Limitation A.ct, 1908-S. 4, 14, 15 (a} read wit/1 S. 80 of t/Je
•Civil Procedure Code-Whether the Notice period to the Railways is to
be excluded for the purpose of limitation.
. Art. 221 Iindian Limitation Act, 1908, provides a period of one year
for a suit rot compensation for injw·y to the person from the date wh,en
the injury was sust~d. In the present ca,e, the injury was sustainod
by the Appellant on January 1, 1958, while travelling by train
from
Ambala Cant!. to Delhi and the suit should have been filed on January
1, 1959; b!lt as the Appellant bad to serve a notice under S.80 of the
C.P .C. before filing tlr. suit, the notiqo was served on th~
Oeneral
Manager on December 29, 1958. The suit was originally ~
.''l Kamal
Court on March 2, 195.9 as March 1, 1959 was a holiday. Later, the
suit wa• transferred to the Sub-Judge's ·eourt at Panipat which by its
()Ider returned the plaiitrt for presentation to tlx:. proper Court, as the
Mohri Railway Station wh,ere the injury was sustained, was outside the
jurisdiction of that Court. The plaint was, ultimately, filed before Sub-
.Judge's Court at Ambala.
The trial Court dismissed the suit on the ground of limitation and
·the High Court also confirmed the decision. Before this Court, Counsel
for the appellant raised th,e following points :-(!) The suit·· could not
have been U.Stituted without givi.i>g 2 months' notice U/S 80 of C.P.C
and if this period of 2 months is excluded for the purpose of limitati;;;?,
the 111if was within time.
(2) that it the Karna! Court WlS not the
proper Court in which the suit ·should. have been filed, the appellant was
entitled to the benefit of S.4 of the Llmitation Act: (3) that the Kuna!
Court had jurisdiction to entertain the plaint a:nd therefore, that was t!ie
proper Court for the purpose of S. 4 of the Act; ( 4) that under S. 14 of
·the Act, the Appellant was to get the benefit of excluding the period during
which he was prosecuting the suit at Karn•! and Panipat.
Dismissing the appeal,
HELD : (i) S.80 of the C.P .C. pr<wides, among othtt things, that
·no suit shall be "instituted agai:r>st the Railways until the expiration of two
months after nvtice in writing has been delivered.
S.80 only prescribes
a condition precedent for the inctitution of the rnit and has nothing to
do with. the poriod of limitation for a suit.
The appellant ca.ooot wtit
till the 29th of Demember 1958 as the period of limitation was to expire
M January I, 1959. [687B]
(ii) Section 4 of the Limitation Act provides that where the period
of limitation prescribed for any suit expires on a day wren the Court
is closed, the suit may be instituted on the reopening day.
In the present
C11Se, if the Kamal Court was ir1ot the proper Court, the plaintiff would
not be entitled to the benefit of S.4.
He can get the benefit of S.4 only
if the suit were filed in the proper Court. [687E]
·
Maqbul Ahmed and Others v. Prctap Narain Singh artd Others, 62
I.A. 80, referred to.
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AMAR CHAND v. UNION (Mathew, J.)
685
(iii) The appellant cannot get the benefit of s. 14 of the Limitation Act because even if the appellant was entitled to get an exclusion
of the time during which he was pro.,cuting the suit in the Kernal •nd
Panipat Court, the suit would rwt be in time as the fil'ing of the suit in
the Kamal Court wz.i beyond the period of limitation. [688B-C]
(iv)
Further, the appellant's contention that the fili'llg of the suit at
the proper Court at Ambala was a continuation of the suit filed at Karna!
and Panipat, has no force, because when the plaint was returned for
presentafion to the proper Court and was prosented iJll that Court, the
suit can be deemed to be in•tituted in the proper Court. only when the
plaint was presented in that Court. The suit instituted at the prop:r Court
at Arnbala was not a continuation of the suit filed in the Karl!lal Court.
[688El
Hirachand Succaram Gandhy & Co. v. G.l.P. Ry. Co. A.I.R. 1928
Bombay 421; Bimla Prasad Muke

## Text

AMAR CHAND !NANI
v.
UNION OF INDIA
October 13, 1972
[A. N· GROVER, K. K. MATHEW AND A. K. MuKHERJEA, JJ.]
'Indian Limitation A.ct, 1908-S. 4, 14, 15 (a} read wit/1 S. 80 of t/Je
•Civil Procedure Code-Whether the Notice period to the Railways is to
be excluded for the purpose of limitation.
. Art. 221 Iindian Limitation Act, 1908, provides a period of one year
for a suit rot compensation for injw·y to the person from the date wh,en
the injury was sust~d. In the present ca,e, the injury was sustainod
by the Appellant on January 1, 1958, while travelling by train
from
Ambala Cant!. to Delhi and the suit should have been filed on January
1, 1959; b!lt as the Appellant bad to serve a notice under S.80 of the
C.P .C. before filing tlr. suit, the notiqo was served on th~
Oeneral
Manager on December 29, 1958. The suit was originally ~
.''l Kamal
Court on March 2, 195.9 as March 1, 1959 was a holiday. Later, the
suit wa• transferred to the Sub-Judge's ·eourt at Panipat which by its
()Ider returned the plaiitrt for presentation to tlx:. proper Court, as the
Mohri Railway Station wh,ere the injury was sustained, was outside the
jurisdiction of that Court. The plaint was, ultimately, filed before Sub-
.Judge's Court at Ambala.
The trial Court dismissed the suit on the ground of limitation and
·the High Court also confirmed the decision. Before this Court, Counsel
for the appellant raised th,e following points :-(!) The suit·· could not
have been U.Stituted without givi.i>g 2 months' notice U/S 80 of C.P.C
and if this period of 2 months is excluded for the purpose of limitati;;;?,
the 111if was within time.
(2) that it the Karna! Court WlS not the
proper Court in which the suit ·should. have been filed, the appellant was
entitled to the benefit of S.4 of the Llmitation Act: (3) that the Kuna!
Court had jurisdiction to entertain the plaint a:nd therefore, that was t!ie
proper Court for the purpose of S. 4 of the Act; ( 4) that under S. 14 of
·the Act, the Appellant was to get the benefit of excluding the period during
which he was prosecuting the suit at Karn•! and Panipat.
Dismissing the appeal,
HELD : (i) S.80 of the C.P .C. pr<wides, among othtt things, that
·no suit shall be "instituted agai:r>st the Railways until the expiration of two
months after nvtice in writing has been delivered.
S.80 only prescribes
a condition precedent for the inctitution of the rnit and has nothing to
do with. the poriod of limitation for a suit.
The appellant ca.ooot wtit
till the 29th of Demember 1958 as the period of limitation was to expire
M January I, 1959. [687B]
(ii) Section 4 of the Limitation Act provides that where the period
of limitation prescribed for any suit expires on a day wren the Court
is closed, the suit may be instituted on the reopening day.
In the present
C11Se, if the Kamal Court was ir1ot the proper Court, the plaintiff would
not be entitled to the benefit of S.4.
He can get the benefit of S.4 only
if the suit were filed in the proper Court. [687E]
·
Maqbul Ahmed and Others v. Prctap Narain Singh artd Others, 62
I.A. 80, referred to.
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AMAR CHAND v. UNION (Mathew, J.)
685
(iii) The appellant cannot get the benefit of s. 14 of the Limitation Act because even if the appellant was entitled to get an exclusion
of the time during which he was pro.,cuting the suit in the Kernal •nd
Panipat Court, the suit would rwt be in time as the fil'ing of the suit in
the Kamal Court wz.i beyond the period of limitation. [688B-C]
(iv)
Further, the appellant's contention that the fili'llg of the suit at
the proper Court at Ambala was a continuation of the suit filed at Karna!
and Panipat, has no force, because when the plaint was returned for
presentafion to the proper Court and was prosented iJll that Court, the
suit can be deemed to be in•tituted in the proper Court. only when the
plaint was presented in that Court. The suit instituted at the prop:r Court
at Arnbala was not a continuation of the suit filed in the Karl!lal Court.
[688El
Hirachand Succaram Gandhy & Co. v. G.l.P. Ry. Co. A.I.R. 1928
Bombay 421; Bimla Prasad Muker;i v .. Laksh11"i Devi & Ors. A.I.R.
1926 Calcutta 355 and Ram Kishun v. Ashirbad, I.L.R. 29 Patna, 1199,
referred to.
(v)
Wheth<or Kamal Court was the proper Court and had jurisdicto en"'rtain the plaint or not in the facts and circumstances of the case
the appellant had never raised these contentions before the trial Court
or in the High· Court. Therefore, he canuot be allowed to raise the1e
points for the first time before this Court. [690A]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1270
of 1969.
Appeal by special leave from the judgment and decree dated
November 21, 1968 of the Punjab & Haryana High Court at
Chandigarh in Regula1 First Appeal No. 372 of 1961.
Bishen Narain and B. P. Maheshwari, fer Ille appellant.
Gobind Das and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
MATHEW, J. This appeal, by special leave, is from the judgment of the High Court of Punjab and Haryana dismissing the
appeal filed by the plaintiff against the decree dismissing his suit
for recovery of damages to the tune of Rs. 1 lakh.
The plaintiff is an advocate practising at the Ajmer bar. On
the !light between December 31, 1957 and January 1, 1958, the
plaintiff was travelling by 2 Dn. Passenger train from
Ambala
Cantt. to Delhi. While the train was at Mohri Railway Station,
the J anatha Express train coming from Delhi collided with. it and
as a result the plaintiff sustained serious injuries -0n his head and
in the spine. The plaintiff filec! the suit claiming damages under
several heads. The trial Court found that the claim for damages
was well founded to the extent of Rs. 33,503.00, but dismissed
the suit on the ground that it was barred by iimitation. The High
Court, on ap{leai by the plaintiff, confirmed the finding of the trial
Court that the suit was barred by limitation and dismissed
the
appeal.
686
SUPREME COURT REPORTS
[1973] 2 S.C.ll.,
The main question, in this appeal, is whether the suit was
filed within the period of limitation.
There is no dispute that the Article applicable to the suit is
Art. 22 of the Indian Limitation Aot, 1908, hereinafter called
A
the 'Act', which provided a period of one year for a suit for compensation for injury to the person from the date when the injury
B
was committed. The injury here was committed on January l,
1958, and therefore, the suit should have been filed on January l,
1959. But the plaintiff had to issue a notice under s. 80 o~ the
Civil Procedure Code before filing the suit. The plaintiff issued
the notice and it was served on the General Manager of the Railway in question on December 29, 1958. The suit was filed in
the Court of the Senior Subordinate Judge of Kamal, hereinafter
called the 'Karna! Court', on March 2, 1959, as March 1, 1959,
was a day on which the Court was not open.
For ministerial
purposes, the suit was subsequently transferred to the Court of
the Subord.inate Judge, Panipat, hereinafter referred to as
the
'Panipat Court', which by its order dated October 28, 1959, returned the plaint for presentation to the proper court. That
was on the basis of its finding that Mohri Railway Station, where
the injury was committed, was not situate within territory jurisdiction of the Court. The plaint was thereafter presented in the
Court of the Senior Subordinate Judge,
Ambala, hereinafter
referred to as the 'trial Court', on October 29, 1959, together
with an application under s. 14 of the Act. ·
Before the trial Court as well as the High Court, the appellant contended that, by virtue of s .. 4 of the Act, the suit filed on
March 2, [959, was within time, as March 1, 1959, was a day
on which the Court was not open and that in any event, the suit
was not barred by limitation as the .appellant could not have filed
the suit before the expiration Qf two months after the delivery cf
the notice under s. 80 of the Civil Procedure Code. Both the
Courts overru1ed these contentions.
Counsel for the appellant submitted that the suit could not
have been instituted without giving 2 months' notice as required
by 8. 80 of the Civil Procedure Code and, if the period of 2
months is calculated from the date of the service of the notice,
the suit need have been filed only on March 3, 1959, and therefore, the suit was filed within time. Under s. 15(2) of the Act,
the plaintiff was entitled to exclude the period of notice. That
means, the plaintiff could have filed the sμit within one year and
2 months from the date on which the injury W31i committed. But
according to counsel, as the plaintiff could not have· filed the suit
before the expiry of the period of notice, and that period expired
only on March 2, 1959, as there were only 28 days in February,
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AMAR CHAND v. UNION (Mathew, /.)
687
1952, and so the suit was within time. We find no force in this
argument.
Section 80 of the Civil Procedure Code ,provides,
among
other things, that no suit shall be instituted against the O;ntri1l
Government, where it relates to a Railway, until the expiration
of two months next after notice in writing has been del\vered to
or left at the office of the General Manager of the Railway.
lt
was not open to the plaintiff appellant to wait till the 29th of
December, 1958, for delivery of the notice and say that till the
expiration of the two months from that date, no suit could be
filed and that the suit is, therefore, within the period of limitation
tho1Jgh filed after 1 year and 2 months from the date when the
injury was committed. Section 80 only prescribes a condition
precedent for the institution of the suit and has nothing to do with
the rieriod of limitation for a suit except that under s. 15 ( 2 )' of
the Act, the period of notice can be deducted in calculating the
period of limitation.
It was contended for the appellant that even if the Kamal
Court was not the proper Court in which the suit should have
been filed, the plaintiff was entitled to the benefit of s. 4 of the
Act. Section 4 of the Act provides that where the period of limitation prescribed for any suit expires on a day when the Court is
closed, the suit may be instituted on the day the Court re-opens.
But, if the Kamal Court was not the proper Court in which the
suit should have been filed, thr- plaintiff would not be entitled to
the benefit of s. 4. The decision of the Privy Council in Maqbul
Ahmad and Others v. Pratap Narain Singh and Others(') is an
authority for this proposition.
In that case the Privy
Council
said :
". . . . the language of s. 4 is such that it seems to
their Lordships to be impossible to apply it to a case
like the present.
What it provides is that, where the
period of limitation prescribed expires on a day when
the Court is closed. the application may be made on the
day when the Court reopens.
Jn their Lordships'
view that means the proper Court in which the application ought to have been made .... "
If the plaintiff had filed the suit in the trial Court on March 2,
1959, then, certainly the suit would have been within time under
s. 4, as that was the proper Court in which the suit should have
been filed.
As the Kamal Court had no jurisdiction to entertain
the plaint, it was not the prooer Court. The fact that the plaintilf
would be entitled to take advantage of the provisions of s. 14 of
(1) 62 I. A. 80.
·9-IA99Sup,C.1./73
688
SUPREME COURT REPORTS
[1973] 2 s.c.ll.
the Act would not, in any way, affect the question whether the
suit was filed within the time as provided in s. 4 in the Karna)
Court. Section 14 of the Act only provided for the exclusion of
the time during which the plaintiff has been prosecuting with due
dilligence another civil proceeding against the defendant, where
the proceeding is founded upon the same cause of action and is
prosecuted in good faith in a Court which, from defect of juris-
. diction, or other cause of a like nature, is unable to entertain it.
Even if the plaintiff was entitled to get a:i exclusion of the time
during which he was prosecuting the suit in the Kamal and
Panipat, the suit would not be within time as the filing of the suit
in the Kamal Court was beyond the period of limitation. It was,
however, argued by counsel for the appellant that ·the suit instituted in the Trial Court by the presentation of the plaint after it
was returned for presentation to the proper Co\lrt was a continuation ·of the suit filed in the Kamal Court and, therefore, the >Uit
filed in Kamal Court must be deemed to have been filed in the
trial Court; We think there is no substance in the argument, for.
when the plaint was returned for presentation to the proper Court
and was presented in that Court, the snit can be deemed to be
instituted "in the proper Court only when the plaint was presented
in that Court: In other words, the suit instituted in
the trial
Court by the presentation of the plaint returned by the Panipat
Court was not a' continuation of the suit filed in the Kamal Court
(see the decisions in Hirachand Succaram Gandhy and others v.
G.1.P. Ry. Co.('), Bimla Prasad Mukherji v. Lal Moni Devi and
Others('), and Ram Kishun v. Ashirbad(').
Therefore, the
presentation of the plaint in the Kamal Court on March 2, 1959,
cannot be deemed to be a presentation of it on that day in the
trial Court.
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Counsel for the appellant conterided that the Kamal Court
F
had jurisdiction to entertain the plaint presented to it on March
2, 1959, and, therefore, that was the proper Court for the purpose
of s. 4 of the Act and that the suit was filed within time. He said
that although the order passed by the Panipat Court on October
28, 1959, holding that it had no jurisdiction to entertain the
plaint and returning it for presentation to the proper Court, was
G
not l.\ppealed from, the appellant is not precluded from challenging the finding in the order that Mohri Railway Station is not
withi11 the jurisdiction of the Kamal Court. On the other hand',
counsel for the respondent contended that since an order passed
un~er Order 7, rule 10 of the Civil Procedure Code, returning a
plaint for presentati()n in the proper· Court, was ap.,ealable under
H
(1) A. I. R. 1928 Born. 421.
(2) A. I. R. 1926 Calcutta 355.
(3) I. L. R. 29 Patna 699.
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AMAR CHAND v. UNION (Mathew, J.)
689
Order 43, rule 1 (a), the appellant is precluded from ~halle?gi:ig
the correctness of the finding of the Court that Mohri Rauway
Station was not within its jurisdiction as no appeal was preferred
from that Order by the arpellant. Counsel said that as that order
has become final, it would constitute res judicata and the appellant cannot challenge its correctness in an appeal from the decree .
Counsel further said that s. 105 of the Civil Procedure Code
which enables a party to challenge the correctness of an mtcrlocutory order whether appealable or non-appealable when
an
appeal is preferred from the decree in the case, has no application
for the reason that the order passed by tre Panipat Court cannot be deemed to be an order passed in the wit in which the
decree was passed by the trial Court, l:ut a final order which
terminated the proceedings in the Panipat Co•1rt.
To put it in
other words, the argument was, that since the suit in tile
trial
Court was not· a continuation of the suit which was filed in the
Kamal Court, the order returning the plaint cannot be deemed to
be an order passed in the suit as instituted in the trial Court and,
therefore, there is no question of challenging that order under
s. I 05 of the Civil Procedure Code in an appeal agaimt the
decree passed by the trial Court.
In support of the contention,
counsel referred to the rulings which have already been ·referred
to in this judgment holding that a suit instituted by the presentation of a plaint in pursuance to an order passed under Order 7,
rule I 0 of the Civil Procedure Code is not a continuation of the
suit as instituted in the Court which had no jurisdiction to entertain it. The rulings of this Court in Satyadhan Ghosa/ and
Others v. S. M. Deorajin Debi and Another(') and Arjun Singh
v. Mahindra Kumar and Others(') were also referred to by
Counsel to show that the order passed by th,e Panipat Court re- -
turning the plaint for presentation to the proper Court was
a
final order and operated as res judicata precluding the appellant
from challenging its correctness in this appeal. We do not think
it necessary to decide the question whether the order passed by
the Panipat Court returning the plaint for presentation in the
proper Court would operate as
res judicata and pr~clude the
appella11t from contending in this appeal that the Karna! Court
had jurisdiction to entertain the suit, for the reason that the appellant never raised the contention before the trial Court that Kamal
Court was the proper Court for instituting the suit on the ground
that Mohri Railway Station was within its jurisdiction. On the
other hand, by invoking s. 14 of the Act, he impliedly asserted
that the Kamal Court had no jurisdiction to entertain the plaint
because that section proceeds on the basis that the
Court in
which the proceeding was pending was unable to entertain the
proceeding from defect of jurisdiction, or cause of a like nature.
(I) (1960].3 S. C.R. 590.
(2) [1964] 5 S. C. R. 946.
690
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SUPREME COURT REPORTS
( 1973) 2 S.C.R.
To put it differently. the appellant had no case either in the trial
Court, or in the High Court in the appeal from the decree, lhat
Kamal Court was the proper Court for filing the suit. No doubt,
he invoked the provision of s. 4 of the Act l!lld sought to bring
the case within its purview both in the trial Court and in the High
Court, but that was on the basis that even if the Kamal Court had
no jurisdiction to entertain the plaint, he was entitled to the bell\:-
fit of s. 4. In these circumstances, we do not think that the appellant should be permitted to urge before this Court that the Kamal
Court had jurisdiction to entertain the suit for the reason that
Mohri Railway Station was within its jurisdiction and show that
the suit as filed on March 2, 1959, was filed in the proper Court
for the purpose of s. 4 of the Act.
As. the suit was barred by limitation, we do not think it necessary to consider tlie question whether the appellanr is entitled to
get any further amount by way of damages.
We dismiss the appeal bu!, in the circumstances, the parties
will bear their costs.
s.c.
Appeal dismissed •.
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