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Petitioner: RICHARD BENJAMIN WHEELER HAINES-- Plaintiff VS Respondent: ISMAIL AND Other
Court Name: Sindh High Court Judge(s): Ghulam Rasool K. Shaikh Title: RICHARD BENJAMIN WHEELER HAINES-- Plaintiff vs ISMAIL AND Other Case No.: Suit No. 71 of 1966 Date of Judgment:1970-02-23 Reported As: PLD 1970 Karachi 628 Result: E.
JUDGMENT
JUDGMENT This is a suit for Rs. 1,40,000 being compensation and damages for bodily injury and damage to property. The plaintiff is an officer in the British Council, Karachi. On 26th February 1965 at about 11 p.m. He was going on scooter from city side to Clifton along Clifton Road when a book which he was carrying fell down opposite Columbus Hotel. He got down from his scooter and parked it on the side of the road and picked up the book. While he was starting his scooter one Car No. KAD-764 belonging to the defendant No. 2 and driven by defendant No. 1 in a rash and negligent manner hit the plaintiff and the scooter from behind. As a result of this the plaintiff was thrown and sustained serious injuries and fracture of both the legs. The scoter was also badly damaged. The plaintiff was also removed to the Civil Hospital where he remained up to 5th March 1965 and, thereafter he was flown to London for further treatment. One nurse too had escorted him to London. The plaintiff remained in St. Thomas Hospital up to the middle of April 1965 and continued the treatment thereafter and, therefore, he could not resume duty till 14th November 1965. It is said that as a result of the accident the plaintiff suffered great bodily pain, agony, inconvenience and loss of enjoyment of life. He was totally disabled for more than 3 months and partially disabled for 6 months and not yet still completely recovered. Consequently the present suit was filed claiming Rs. 1 lac as general damages and Rs. 40,000 as special damages. Since the car was insured the Insurance Company was subsequently impleaded as defendant No. 3. The defendant No. 1 is ex parte while the suit was contested by defendants 2 and 3. It was pleaded by defendant No. 2 that the driver of the car was driving the car very cautiously on the correct side of the road at a normal speed when the scooter without any signal stopped abruptly with the result
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that in spite of the best efforts of the car driver he could not avoid the accident. It was denied that the car was driven rashly or negligently. It was further pleaded that on account of the accident which was as a result of the negligence of the plaintiff the car was also damaged. It was admitted that defendant No. 1 was the driver of defendant No. 2 but it was denied that defendant No. 2 was vicariously liable. In the alternative it was pleaded chat the claim was highly inflated and exaggerated. It was also pleaded that the suit was barred by limitation. The defendant bad no knowledge that the plaintiff was driving the scooter at the time of the accident and, therefore, he was put to strict proof. The car according to defendant No. 2 was fully insured under comprehensive policy with Messrs Central Insurance Company Ltd., Karachi. Defendant No. 3 denied the knowledge about the various facts but it was averred that the accident had taken place due to the fault of the plaintiff. It was pleaded that there was no necessity for the plaintiff to proceed to London for minor injuries when the best possible treatment was available at Karachi. So he was not entitled to compensation for unnecessary expenses that might have been incurred. According to the company the liability was limited in terms of section 95 of Motor Vehicles Act which restricted the extent of liability to death and bodily injury only. The amount claimed was much too excessive. It was further pleaded that defendant No. 3 was not liable for any special damage. No cause of action had accrued against him. On the basis of the above pleadings the following issues were framed : "(1) Whether the suit is barred by limitation ? (2) Whether the plaintiff was driving the scooter at the time of accident? (3) Whether Car No. KAD 764 was being driven rashly and negligently by defendant No. 1 or ,whether the plaintiff himself was responsible for the accident? (4) Whether the defendant No. 2 is vicariously liable for the torts of defendant No. 1 ? (5) Was the plaintiff totally disabled or partially disabled and to what extent? (b) Whether the plaintiff has suffered general and special damages as claimed? (7) Whether the liability of defendant No. 3 is limited in terms of section 95 of the Motor Vehicles Act and to what extent? (8) Whether the plaintiff is entitled to the reliefs claimed inthe suit?" The plaintiff appeared in the witness-box and examined three witnesses: Syed Mahmudul Hassan, Abdul Rahim and 15 Shaiwax, while no witness was examined on behalf of the defendants. The evidence of the plaintiff himself with regard to the accident is not helpful as according to him he had lost his memory and could not remember what had happened and how the accident had taken place. He added that he found himself in the hospital in the confused state of mind. So far his physical condition was concerned he stated that his legs were broken and he was informed by Surgeon Rahim that on the previous night operation had been performed upon him. He remained in the hospital for one week and thereafter he was removed to the airport and flown to London. He was accompanied by a nurse. He was treated in St. Thomas Hospital in London and remained in the hospital till the middle of May 1965. His both legs were plastered which was subsequently removed in November 1965. However, during the interval he was re-admitted in the hospital in September 1965 because his left leg was not properly set and thereafter he remained in the hospital for one month. He could not stand up till late April. He could hardly walk with the support of crutches in the first week of May. He used the crutches till July and thereafter he used Orthopedic walking sticks. After the second operation he again used crutches. The use of crutches continued till the end of November and thereafter he used sticks. It was in January 1966 that he stopped using the stick but still he could not walk normally. Thereafter pain remained in the leg for sometime. He also gave the details of the various expenses incurred by him. However, he stated that during the period he was absent from duty he received full pay as well he was reimbursed with all the expenses including the journey to and from London by the British Council.
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Syed Mabmudul Hassan was in the service of Wazirali Engineering Ltd. The scooter was repaired by that firm at the cost of Rs. 353.80. Mr. Abdul Rahim was the Medical Superintendent at the Civil Hospital, Karachi and he had attended the plaintiff in the hospital when he was removed there. According to this witness the plaintiff had sustained compound comminuted fractures of tibia and fibula of both the legs and the operation was performed. The witness further stated that the plaintiff left for London after their treatment but if he had continued the treatment in the hospital it would have taken about 3 months more whereas in London the treatment took longer time. Mr. Shaiwax is the sole witness with regard to the main accident. He is in private service. He stated that on that night he was standing at the porch of Columbus Hotel waiting for his wife to join him and so he was looking towards the road. He saw a scooter parked on the left side of the road and then the plaintiff walked towards it and he was carrying something in his hand. The plaintiff was putting the article in the scooter when suddenly two cars came racing going towards the city and one of the cars hit the plaintiff and the scooter who was thrown to a distance of about 30/40 ft. The car was also stopped opposite Columbus Hotel gate. On seeing this accident he immediately ran to the spot where after about 5 minutes Mr. Asif Majeed, D. I. G. Along with his wife passed in a police car and stopped at the place of the accident. The D. I. G. Did not know him. According to him the scooter and the plaintiff were facing the city on the left side of the road when this accident took place. In the cross-examination he admitted that he was neither examined by the police nor he had appeared as a witness in the criminal case. He had also not made any report about the accident as the D. I. G. Himself had reached the spot. With regard to his name having been transpired as an eye-witness he stated that the wife of the D. I. G. Knew his wife. This is the entire evidence. Now I proceed to take up the issues. Issue No. 1.-This issue relates to the limitation. The accident had taken place on 26th February 1965. The plaint bearing stamps of the value of Rs. 5 was originally presented on 25th February 1966 although the proper court-fee was Rs. 2,490. On 28th February 1966 some objections were noted by the office and one of the objections was regarding insufficiency of court-fee and the compliance was required to be made within 7 days. However, the plaint was taken back on 5th March 1966, bearing an endorsement of the Additional Registrar that compliance be made by 12-3-66. It was again presented on 8th March 1966 after affixing the deficit court-fee stamp. No application for condonation of the delay was made. The plaint was admitted and summons were issued to the defendant. Written statement was filed raising the plea of limitation as well. Evidence as already stated was led. The arguments were resumed on 20-1-70 and it was contended on behalf of the defendants that since the plaint, as originally presented, was insufficiently stamped, it was not a proper presentation and it could be deemed to have been filed on 8th March 1966. When it was re- filed with proper court-fee and there being no application for condonation of delay, the suit was time-barred. The arguments could not be concluded on that day and so the case was adjourned to 30-1-70. In the meantime on 26-1-70 an application was made under section 149, Civil Procedure Code and section 28, Court Fees Act for' condonation of delay and extension of time. The grounds shown in this application are that the plaintiff was in England in February 1966 and sent the instructions to the Advocate through the British Council as during that period attempts bad been made to assess the damages and as by that time he had not fully recovered, the assessment of the damages was not possible, but since the time for filing the suit was running up the suit had to be filed. The court-fee which was payable was Rs. 2,490 and the learned counsel had received a cross cheque in the sum of Rs. 2,550 from the British Council, Karachi on 24th February 1966 the cheque could not be cleared till 25th February 1966. On the same day attempt was made to purchase the stamps but on account of the higher valuation the stamps were not available with the stamp-vendor and, therefore, the amount was deposited in the Government treasury vide
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challan No. 15 dated the 25th February 1966. The stamps were received on 26th February 1966, but the plaint had already been presented to the Court and further that no notice of the objection dated the 28th February 1966, was issued to the plaintiff and it was only on 5th March 1966, when inquiries were made from the office by the learned counsel that the objection was found noted and so the plaint was taken back and according to the order of the Additional Registrar, the compliance was to be made by 12th March, 1966 but it was made much earlier i.e. 8th March 1966. On the basis of these facts it was urged that the delay was unintentional and bona fide and, therefore, it was sought to be condoned. This was opposed by the learned counsel for the defendants. Dealing with the legal requirements it would be found that Order IV, rule 1, C. P. C. Provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. Similarly explanation to section 3, Limitation Act lays down that a suit is instituted, in ordinary cases, when the plaint is presented to the proper officer. In this Court the proper officer is the Deputy Registrar having been authorised by rule 118 (1) of Original Side, Chief Court of Sind Rules, to receive the plaints Rule 119 requires the officer to examine the proceedings and if any proceeding is not in proper form or is not properly stamped or is otherwise defective, he is required to endorse the objections thereon and return it to the person present--ing it for compliance therewith within a time to be prescribed by him. Rule 120 authorises the Registrar, Original Side, to admit the plaint if it is in order or if the objections, if any, thereto have been complied with. Rule 121 requires the Deputy Registrar to note the reasons for the rejection of the plaint if it is liable to be rejected under Order VII, rule 11, C. P. C. And submit it for orders of the Judge hearing miscellaneous matters. Rule 123 lays down that except in cases in which a party is entitled as a matter of right and of course to the order asked for in the petition, notice shall ordinarily be issued to the other party interested to show cause why the order asked for should not be granted but in case an order is passed without notice, reasons have to be recorded. Similar provisions exist in the Code of Civil Procedure. Rule 11 (c) to Order VII, C. P. C. Lays down that the Court shall be bound to reject a plaint written upon paper insuffi--ciently stamped, if the plaintiff on being required to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so. The power to extend the time has also been conferred upon the Court by section 149, C. P. C providing further that upon such payment the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance. At the time of arguments an impression was created that there existed conflict between rule 119 of Original Side, Chief Court of Sind Rules and Order VII, rule 11 (c), C. P. C. As in the former case the Registrar is competent to allow time to the plaintiff to supply deficit court-fee whereas this power according to the latter rule vests in the Court only. There cannot be two authorities functioning at the same time for the same purpose A nor in the administration of justice any uncertainty can be allowed to exist. However, on close scrutiny of these two provisions as well as section 149, C. P. C. It would be apparent that no conflict of any kind exists. Rule 119 of Original Side, Chief Court of Sind Rules is confined to those cases in which the plaint with insufficient court-fee is presented, not on the last day of limitation but some time earlier. The Registrar can allow the plaintiff to make compliance within the time originally fixed or subsequently extended but in either case the date for compliance must fall within the period of limitation. Thus, thereby, he does not extend the period of limitation, but he requires the compliance within the period of limitation. In case the plaint is presented on the last day of the limitation and the compliance cannot be made on that day, the power of the Registrar to allow time to the plaintiff is exhausted and the Court alone is competent to afford an opportunity to the plaintiff to make compliance within the time which may be originally
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fixed or extended from time to time although the period of limitation has already expired. This view resolves the so-called conflict and is in consonance with the various provisions of law. Section 4 and section 6 of Court Fees Act lay down that no document of any kind specified in the First and Second Schedules to the Act shall be filed etc. Or received etc. Unless in respect of such document a fee of an amount not less than that indicated by either of the said Schedules be paid. Section 4 applies to the High Courts established by Letters Patent while section 6 applies to other High Courts, any other Court of justice and public officer. Section 28, Court Fees Act lays down that no document which ought to bear a stamp under the Act shall be of any validity, unless and until it is properly stamped, providing further that when any such document through mistake or inadvertence received, filed and used in any Court or office without being properly stamped, the Presiding Judge or head of the office, as the case may be, may if he thinks fit, order that such: document be stamped as he may direct and on such document being stamped accordingly, the same and every proceeding relative thereto, shall be as valid as if it had been properly stamped in the first instance. Section 28, Court Fees Act corresponds to section 149, C. P. C. But there are also various points of difference between the two sections. In fact section 149, C. P. C. Is wider in its scope and covers most of the grounds of section 28, Court Fees Act. Confining myself to the point involved in the present case, both the sections confer power upon the Court to allow the party to pay deficit court- fees and on payment of such fees, the document is validated with retrospective effect. From sections 4, 6 and 28 (1) of the Court Fees Act, it is clear that no document not bearing proper court-fees stamp can be filed or received and it shall be of no validity It, therefore, follows that a plaint presented with insufficient court-fees stamp is not a proper presentation and does not save the period of limitation. However, despite these prohibitory provisions the Courts are vested with the power to extend the time and allow the party to pay the deficit court-fees within the extended period. This power is available in section 28(2), Court Fees Act as well as section 149, C. P. C. And Order VII, rule 11, C. P. C. The effect of these provisions is that the bar is removed and the validation takes effect retrospectively. In fact the consensus of the view is that in view of the provision of Order VII, rule 11 (c), C. P. C. The Court is bound to afford an opportunity to the plaintiff to make good the deficiency and it is only in case of default that the plaint can be rejected Order VII, rule 11 (c), C. P. C. And section 149, C. P. C. Should be read together. The combined effect of these two sections (sic) is that the Court can allow the deficiency in court-fees to be paid, even though the limitation for presentation of the plaint has expired provided the plaint itself is presented within time. The time granted under section 149, C. P. C. Can be extended from time to time under section 148, C. P. C. However, the discretion has to be exercised judicially and in cases in which the party is not guilty of obstinacy or deliberately avoids to make up the deficit court-fee. In this connection it would be advantageous to reproduce the observation made in Full Bench decision in the case of Jagat Ram v. Misar Kharaili Ram and another (1). It reads as under ---It seems to me that the discretion conferred on the Court by section 149, Civil P. C. Is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act. A thing should be presumed to be done honestly whether the discretion under section 149 should or should not be exercised in favour of the litigant. On this point of view there is no proof and no suggestion has been made in this Court that there was any mala fides on the part of the plaintiff. The only thing that has been suggested is that he might have gone earlier in the day to the Jullunder Treasury or should have taken the precaution of depositing his money one day earlier and thus making certain of getting stamps on the last day of limitation. This can hardly be said to constitute mala fides sufficient to disentitle him from the exercise of the discretion in his favour.---
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Similar view has been expressed in PLD 1959 Pesh. 120, PLD 1961 Lah. 1028, PLD 1962 Pesh. 142; PLD 1964 Pesh. 182, PLD 1966 Pesh. 51. Not only this but in PLD 1959 Pesh. 120; the Division Bench consisting of G. B. Constantine and Muhammad Shafi, JJ. Went a step further. Their Lordships held that the provision of law contained in rule 11 of Order VII, C. P. C. (1) AIR 1938 Lah. 361 made it compulsory for the Court, before rejecting the plaint. To give some time to the plaintiff to make up the deficiency in court-fee and the Court could not straightaway reject the plaint without giving such time. On the other hand a few authorities were quoted by the learned counsel for the defendant to support the contention that when the plaint with insufficient court-fee was presented on the last day of the limitation, no justification existed to allow the plaintiff to make up the deficiency on the expiry of the period of limitation. It is unnecessary to refer to those authorities in detail as the principle laid down by those authorities is not different. In those cases the default was deliberate and the party failed to provide any excuse for the delay. Before proceeding to consider the present case in the light of what has gone before, it is useful to deal with the aforesaid Full Bench authorities of Lahore High Court AIR 1938 Lah. 361 in some details as in that case also a situation somewhat similar to the present case had arisen mortgage bond was executed on 13th January 1923. On 14th January 1935 at 2 p.m. The plaintiff went to the treasury to purchase court-fee but the treasury was found closed. So on the same day at 4-15 p.m. The plaint bearing one-rupee stamp instead of full court-fee was presented before the Senior Subordinate Judge, to whom the functions of distributing plaints to various Courts working there bad been delegated by the District Judge under section 37 read with section 34, Punjab Courts Act and Rules and Orders of the High Court, Volume I, Chapter 1-B. The Senior Subordinate Judge allowed time to the plaintiff to supply the deficit court-fee. In pursuance of this Order the required stamp to make up the deficiency was supplied on 16-1-1923. The plaint was then made to the Second Class Subordinate Judge for disposal'. The plaint was then admitted and registered and summons were issued to the defendant. Subsequently it was contended on behalf of the defendant that Senior Subordinate Judge, merely performing ministerial functions, had no power to allow time to the plaintiff to supply deficit court-fee and therefore, his order was invalid and the plaint must be deemed to have been presented on 16th January 1923 and consequently the suit was time-barred. The learned Second Class Subordinate Judge was of the view that Senior Subordinate Judge had no power to make an order under section 149, C. P. C. And the conduct of the plaintiff was not bona fide. On the basis of this view he held that the suit was time-barred and dismissed it. In appeal the learned District Judge took a different view. He held that the suit was within time and allowed the appeal. In 2nd appeal, the learned Single Judge of the High Court although on merits agreed with the learned Second Class Subordinate Judge but relying upon Order VII, rule 11, C. P. C. That Second Class Subordinate Judge was bound to grant time to the plaintiff to make up the deficiency, maintained the order of the District Judge and dismissed the appeal. Against this Letters Patent Appeal was filed. The Division Bench dealing with the appeal held the view that the Court was not bound under Order VII, rule 11, C. P. C. To grant time to the plaintiff to make up the deficiency and since this view was in conflict with the view taken by mass of the authorities, this question was referred to Full Bench. However, the Full Bench did not consider it necessary to decide this question because on the facts of the case discretion conferred by section 149, C. P. C. Could be exercised in favour of the plaintiff. It was in this connection that the observation already reproduced above was made. Apart from this the other contention that the discretion under section 149 could not be exercised because when the plaint came before the Court, the deficiency was already made up, was also repelled. In this connection the relevant observation reads as under
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---It has been urged as a last resort that the discretion under section 149 could not be exercised because at the time when document came before the Court the court-fee had already been made up. The argument does not appeal to me at all, for the simple reason that once the plaint had been presented to the Officer of the Court, assuming that the learned Senior Subordinate Judge was acting in a ministerial capacity only and not judicially, the plaintiff had no longer any control over the document and could not legally proceed to stamp it…
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