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Petitioner: MUHAMMAD AQIL KHAN VS Respondent: AKHTAR HUSSAIN AND OTHERS
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Ghulam Rasool K. Shaikh Title: MUHAMMAD AQIL KHAN vs AKHTAR HUSSAIN AND OTHERS Case No.: Letters Patent Appeal No, 50 of 1969 Date of Judgment:1970-03-11 Reported As: PLD 1971 Karachi 864 Result: Appeal partly allowed
JUDGMENT
JUDGMENT MUHAMMAD HALEEM, J.--This letters patent appeal is directed against the judgment dated 24th January 1968, of a learned Single Judge, by which he decreed the respondents' suit for Rs, 62,000 with interest at 6 % per annum from the date of suit until payment and proportionate costs against the appellant. Out of the above decretal amount the liability of respondent No, 2 was limited to Rs, 20,000 together with interest and proportionate costs and to this extent it was ordered that the decree would be executable against this respondent. 2. On 25th November 1964, the respondents 1 to 5, who were minors, sued the appellant and respondent No, 6 through their next friend Manzoorul Hassan, their uncle, and claimed Rs, 75,000 as damages for the loss of life of Shafqat Hussain Siddiqui, their father, whose dependents they were. The suit was filed under the Fatal Accidents Act, 1855 (Act XIII of 1855). It was averred in the plaint that deceased Shafqat Husain Siddiqui was employed as a lower division clerk on a salary of Rs, 172 per month in the Engineering Department, Pakistan Naval Dockyard, in 1962. On 22nd December 1962, at about 1 p.m. while returning home on a cycle he met with an accident, in which he lost his life ; it is said that when he was on West Wharf Road near a way-side hotel, he was run over by bus No, KAT 1173 of Route No, 80 belonging to the appellant which was at that time driven by Bismillah Khan and was crushed under one of its front wheels. The deceased was at that time aged 29 years and in good health. Respondents 1 to 5 had no other source of their livelihood and solely depended on his support for their existence. Besides respondents 1 to 5 he had left a widow, Mst. Fahmida Khatoon, who, it is said, had lost her balance of mind after the death of the deceased. The bus was insured against third party risk with respondent No, 6 and it was, therefore, made a party in the suit. On 11th April 1963, a notice was served on the appellant by Syed Hassan and Mst. Fahmida Khatoon,
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on their behalf and on behalf of the minor respondents, through their Advocate, in which they claimed a sum of Rs, 63,059-14-8 from him (appellant) as compensation for the loss of life of the deceased. The suit was filed in forma pauperis on 25th November 1964, as the appellant had failed to pay the above amount. In para. 10 of the plaint, section 6 of the Limitation Act was pleaded for saving limitation. Bismillah Khan, the driver, however, died before the institution of the suit and was, therefore, not impleaded in it. 3. The appellant in his defence, however, admitted that the bus in question was involved in the accident but took the stand that it was neither due to the negligence nor rash driving of the bus driver. He also denied for want of knowledge the fact whether respondents 1 to 5 were the minor sons and daughter of the deceased and that he was employed as a lower division clerk on a monthly salary of Rs, 172. He also denied the other allegations in the plaint except the fact that his bus was insured with respondent No, 6 against third party risk. He also took the plea that the suit was time-barred; that it was not maintainable; that it was not in proper form and bad for non- joinder of proper parties. 4. Respondent No, 6 denied the allegations in the plaint and took the stand that life expectancy of the deceased was overestimated; this respondent, however, admitted that the bus in question was insured with it and took the objection that no particulars of the damages have been stated in the plaint and, therefore, the suit as framed was bad in law. It also took the plea that the suit was time-barred and finally contended that this suit should be dismissed for the above reasons. 5. The parties on 14th November 1966, filed the following consent issues:-- "(1) Whether the plaintiffs are the minor sons and daughters of the deceased Shafqat Hussain Siddiqui? (2)Whether the alleged accident took place due to the rashness and negligence of the driver of the defendant No, 1? (3)Whether the plaintiffs are the beneficiaries of the late Mr. Shafqat Husain Siddiqui? (4)Whether the plaintiffs are entitled to the damages claimed or any damages? (5)Whether the defendant No, 2 is liable and to what extent? (6)Whether the suit is barred by time? (7)Whether the suit is bad for non-joinder of necessary parties? (8)Whether the suit is bad for want of particulars of negli-gence and damages? (9)To what relief the plaintiffs are entitled? Again on 12th September 1967, counsel for the appellant and respondent No, 6 submitted their statements in writing while the examination of the witness on behalf of the minor respondents was in progress, in which they confined their cases to the extent indicated therein. These statements appear to have been filed under Order X, C. P. C. and or reproduced as under:-- "Statement of Mr. Iqbal Ahmed.--The defendant No, 1 does not deny the relationship of the deceased with the plaintiff as shown in the plaint. This defendant also does not deny that the deceased died as a result of an accident, but maintains that the bus did not pass over the body of the deceased but only the foot-board separated from the bus and fell on the deceased. Statement of Mr. S. Riazul Hasan.--I say that the defendant No, 2 contests the suit on the limited question as to the extent of this defendant's liability which, I maintain, is limited to Rs, 20,000 only." The learned Single Judge thereupon with the consent of the parties recast the issues as under:-- "(1) Is the suit barred by limitation? (2)Whether the death of the deceased was caused by the negligence of defendant No, l's servant, namely driver Bismillah Khan? (3)Are the plaintiffs entitled to any damages. If so, in what amount? (4)What is the extent of defendant No, 2's liability? (5)Relief?"
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6. Respondents 1 to 5 examined six witnesses, of whom Dr. Major A. Hassan was examined to establish the cause of death as he had performed the autopsy on the dead body. Liaqat Ali and Mushid Hussain were examined to establish how the deceased was run over by the bus; they were alleged to be the eye-witnesses of the occurrence. Syed Hasan is the father of the deceased and was examined to establish the age of the deceased at the time of his death. The record of Criminal Case No, 19/63 State v. Bismillah Khan relating to the trial of the driver Bismillah Khan was produced through Farooq Ahmed, Head Clerk in the Naval Dockyard, was examined to establish the salary of the deceased. He had produced his last pay certificate. 7. The appellant examined five witnesses, of whom Fazlur Rahman was examined to establish the death of Bismillah Khan before the institution of the suit. Muhammad Ashfaq, who was a conductor in the bus, Salahuddin, a supervisor and in the employment of respondent No, 1 and Samiuz Zaman, an employee of Glaxo Laboratories, were examined to establish that there was no negligence or rashness on the part of the driver at the time of the accident. 8. The learned Single Judge decided issue No, 1 in the negative, issues 2 and 3 in the affirmative and under issue No, 4 held that the liability of respondent No, 6 was limited to Rs, 20,000 and decreed the suit for Rs, 62,000 with interest and proportionate costs under issue No, 5. The appellant being thus aggrieved filed this letters patent appeal. Respondent No, 6, however, was impleaded as a respondent; it did not file a separate appeal to challenge the finding of the learned Single Judge under issue No, 4. 9. Mr. All Ahmed Fazeel, the learned counsel for the appellant, has challenged the findings of the learned Single Judge on each of the five issues. We now propose to deal with them:-- Issue No, 1.--This issue relates to the point of limitation. According to the learned counsel for the appellant, the suit was filed beyond time and that neither section 6 nor section 7 of the Limitation Act saved it. The accident occurred on 22nd December 1962, while the suit was brought on 25th November 1964 after the lapse of a period of one year as prescribed under Article 21 of the Limitation Act. It will, therefore, be convenient here to reproduce sections 6 and 7 and Article 21 of the Limitation Act: Section 6 reads:-- "6. (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would other wise have been allowed from the time prescribed therefor in the third column of the First Schedule "(7) Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all ; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without or until the disability has ceased. Article 21. By executors, administrators or representatives under the Indian Fatal Accidents Act, 1855One Year The date of the death of the person Killed." Emphasis was laid on the fact that amongst the dependents of the deceased were his father Syed Hasan and his widow Mst. Fahmida Khatoon and either of them could have filed the suit as a representative of the minor respondents in view of section 1 of the Fatal Accidents Act within the time prescribed under Article 21 of the Limitation Act. He next urged that section 6 of the Limitation
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Act would not apply because it contemplates legal disability of a minor while in the instant case the dependents were not only minors but majors who were not labouring under any legal disability and, therefore, this section did not save limitation. With regard to the applicability of section 7 of the Limitation Act he raised two-fold objections: "The first was that the words "jointly entitled to institute a suit" in section 7 contemplate a joint substantial right of the persons which is not the case here. According to the learned counsel, under the Fatal Accidents Act; the right of the dependents to compensation is a right distinct in each as they are entitled to claim compensation jointly but to relief severally in respect of the same cause of action which is enforceable at the suit of all or any one of them suing for himself and the rest. The second was in the alternative; it was contended that assuming that the above expression did apply to the case of one minor respondents, yet section 7 would not apply as Syed Hasan, the grandfather of the minor respon- dents, could give a discharge without their concurrence of their claim for compensation as their guardian under the Muhammadan Law. In this context be further contended that the non-filing of the suit would amount to a discharge within the meaning of this section. In effect, according to the learned counsel, the non-filing of the suit had resulted in the discharge of their claim. In the result he argued that the suit was plainly barred by time as it was not brought within one year of the date of accident. 10. It is true that in the notice dated 11th April 1963 (Exh. 10/5) Syed Hasan, the father of the deceased, had claimed to be one of the dependents of the deceased yet we find from his evidence that be denied the suggestion that he and his wife were being maintained by the deceased. On the contrary, he stated that he and his wife were being maintained by his younger son, Manzoor Hasan and that he had an income of Rs, 3,000 per year from his land and Rs, 200 per month from his Homeopathic Drug Stores. He admitted that the notice (Exh. 10/5) was given by him, but the learned counsel for the appellant failed to confront him with the contents of the notice with regard to his claim of being supported by the deceased. This factual position in his evidence has not been controverted by any evidence on record; mere production of the notice without taking any explanation from him on the stand that he took in his evidence would be of no avail. The notice itself shows that the claim to compensation was not only based on section 1 of the Fatal Accidents Act but also on his right of inheritence to a specific share under the Muhammadan Law. The notice was on behalf of the minors as well as their widowed mother, Mst. Fahmida Khatoon. It was, therefore, jointly given on behalf of all of them. In the circumstance, it was necessary that an explanation should have been taken from him as to whether he had claimed compensation as a dependent of the deceased or under a conception that he was entitled to it as an heir of the deceased even though the notice purported to be under "Act V, 1872 and Muhammadan Law and Soora Alnesa". Even the number of the Act and the year have been wrongly quoted. We have, therefore, no reason to disbelieve Syed Hasan when he stated that he was not a dependent of the deceased and he was being maintained by his younger son Manzoor Hassan. Therefore, even though a suit could be filed by a representative of the person deceased for the benefit of the minors yet the non-filing of the suit by him cannot come in the way of the saving of limitation under section 6 or 7 of the Limitation Act as the right of the minors to claim compensation under the Act is a statutory one and cannot be allowed to be defeated if the representative acts fraudulently or in collusion or merely abstains from filing a suit for some reason or other. Moreover, section 1 of the Fatal Accidents Act nowhere limits the applicability of section 6 or 7 of the Limitation Act and. therefore, even if the suit was not filed by a representative of the person deceased within one year of the date of the accident yet the minor respondents cannot be deprived of the benefit of either section 6 or section 7 of the Limitation Act. 11.It is true that the dependents were not only the respondents 1 to 5 who were minors but also the widow of the deceased Mst. Famida Khatoon. Section 6 of the Limitation Act contemplates a legal
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disability either in one or in all and therefore this section will not apply to the instant case to save limitation. In the plaint, limitation was sought to be saved under Article 6 of the Limitation Act. Section 6 of the Limitation Act was pleaded and we feel that this was so because the suit was filed on behalf of the minors by their next friend and it was for this reason that section 6 was relied on. Before the learned Single Judge there was a controversy as to the applicability of section 7 and the finding of the learned Single Judge was that limitation was saved under section 7 of the Limitation Act. In the circumstance, respondents 1 to 5 cannot be precluded from pleading section 7 with a view to save limitation as urged by the learned counsel for the appellant. 12.The applicability of section 7 to the instant case was challenged on the authority of the decision in the case of Johnson and another v. Madras Railway Company . This decision was based on the interpretation of section 8 of Limitation Act (Act XV of 1877). It reads:-- "8. When one of several joint creditors or claimants is under any such disability, and when a discharge can be given without the concurrence of such person, time will run against them all; but where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others." This section has been amended and is renumbered as section 7 in Act IX of 1908 which has already been reproduced earlier. The expression "joint creditors or claimants" in section 8 of the old Act has been omitted and the expression now in section 7 is "jointly entitled to institute a suit". In the Madras case the words "joint claimants" were interpreted to mean persons having joint substantial rights and it was argued that the same meaning should be given to the words "jointly entitled to institute a suit" in section 7 of Act IX of 1908. This contention was considered in the case of Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. by Qadeeruddin, J., as he then was. His Lordship distinguished the Madras case and observed:-- "There is apparently only one reported judgment in which the question of limitation under section 8 of the Limitation Act, 1877 (Act X V of 1877) which was the equivalent of section 7 of the present Limitation Act, 1908, has been considered with reference to the Fatal Accidents Act, 1855. It is a judgment of a Division Bench of the Madras High Court in Johnson and another v. Porto Novo Cundasamy I L R 28 Mad. 479. The language of section 8 was essentially different from the language of the present section 7, as pointed out by Chitley and Rao in the third paragraph of their Note No, 4 of their Commentary on section 7 of the Indian Limitation Act, 1908 (3rd edition). That j judgment is therefore no authority on the interpretation of the present section 7. The words, 'persons jointly entitled to institute a suit' mean persons who have a right to bring a suit jointly. Mr. Parma nand contended that though the language did not require that they should be necessarily arrayed as plaintiffs in a suit, it conveyed the sense that they should have a joint cause of action. I think that the language excludes the possibility of separate actions on the principle that 'the express mention of one thing implies the exclusion of another', but there is nothing in it to import the sense that the reason for such joint action must be a joint substantive right or a joint cause of action and not merely a procedural necessity. Such a joint action may be legally necessary due to procedural requirements only. In this connection I should mention Note No, 4 of Chitaley and Rao's Commentary on section 7 of the Indian Limitation Act, 1908--Third Edition, to which reference was made by Mr. Muhammad Nasim. In the present case the three claimants could not, by reasons of section 2 of the Fatal Accidents Act, 1855, bring separate suits to recover damages sustained by them separately and as such they were entitled to bring this suit jointly in the 'sense of section 7 of the Limitation Act, 1908. They, therefore, come within the scope of the words 'persons jointly entitled to institute a suit'." This decision was followed by Kadir Nawaz Awan, J., in the case of Sahibzadi Begum and others v. Hamid Ali and others Civil Revision Petition No, 212/63 and it was held that limitation was saved by section 7 of the Act.1 2
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13. The learned counsel for the appellant challenged the correctness of the interpretation of the expression "jointly entitled to institute a suit" and relied on the case of Mst. Zubaida Bai v. Seth Adam Haji Pir Muhammad Essaq , in support of his contenion that this expression contemplates a case where the substantive right is joint. In this case one Haji Adam Shakoor, a partner of defendant No, 1 died in 1943. The claimants were his minor daughter, who had filed the suit within 3 years after attaining majority, and defendants 2 to 6, who had also claimed their respective shares and who were either the heirs of the deceased Shakoor or the deceased's widow Mst. Khadija. They were all major at the time of the death of Shakoor and his widow Mst. Khadija. All the claimants had their distinct shares according to Muhammadan Law and were entitled to enforce their claims separately or jointly. It was, therefore, contended that limitation was not saved in their case as they had not brought a suit within 3 years of the death of Shakoor and that further with regard to the claim of one of the claimants in the 1/8th share of the widow time had begun to run under section 9 of the Limitation Act as the widow was then alive and that the subsequent disability or inability to sue could not stop it. Even if the claimant was a minor her claim was barred by time. In this case also the Madras case was relied on by the defendants with a view to save limitation under section 7 as it was contended that "the right to claim accounts was a joint and indivisible right, and inasmuch as one of the claimants was a minor and a complete discharge could not be given to defendant No, 1 without her concurrence, the fact of her minority saved the limitation not only for her but also for all the other claimants". A. S. Faruqui, J , repelled this contention and observed:-- "This section (section 7) can only apply when several persons are jointly entitled to institute a suit and the second condition is that a complete discharge can be given without the concurrence of a person under disability who is one amongst others who were all jointly entitled to sue. When these two conditions are present two results follow : firstly, that where such a discharge can be given time will run against all of them including the person under disability and secondly, that where no such discharge can be given time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. The two illustrations to this section makes the position absolutely clear. These are: "(a) A incurs a debt to a firm of which B, C and D are partners is insane, and C is a minor. D can give a discharge of the debt without the concurrence of B and C. Time runs against B, C and D. (b) A incurs a debt to a firm of which E, F and G are partners. E and F are insane, and G, is a minor. Time will not run against any of them until either E, or F becomes sane, or G attains majority". Section 7, therefore, would aptly apply to cases such as of firms or of a joint Hindu family, where a partner in the case of the former and karts in the case of the latter, can give a complete discharge notwithstanding the disability of one of the partners or one of the members of the joint Hindu family; therefore, to attract the provisions of section 7 the claimants must be persons whose substantive right is joint, that is, where more than one individual possesses the same identical substantive right. But, where the rights of the persons are distinct, this section will not apply notwithstanding the fact that all of them may be permitted to enforce their claim in one suit." It was held that section 7 did not apply because defendants 2 to 6 had specific shares and anyone of them could have instituted a suit for accounts or for her share in the money due to the deceased partner and the mere fact that one suit could have been brought to enforce the claims of several heirs whose shares were distinct and fixed according to Muhammadan Law would not justify the saving of limitation. In that case, therefore each had a separate cause of action and that these causes of action could not be combined with a view to save limitation. This was the reasoning for the non-applicability of section 7 of the Limitation Act. In this case, the question whether the right to institute one suit which arises from the same cause of action where the right to compensation of the dependents is distinct and several, was not considered. We may observe here that the illustrations are not exhaustive of the cases covered by the expression "jointly entitled to institute a3
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suit"; they provide instances of the applicability of the expression and it is not, therefore, possible to limit the meaning of the expression "jointly entitled to institute a suit" to a case where the substantive right is joint. It is, therefore, not possible to accept the restricted meaning given the expression "jointly entitled to institute a suit" by Faruqui, J., in the above case. We would respectfully agree with the meaning given to this expression by Qadeeruddin, J., in the case o Iftikhar Hussain. 14. What is of significance is that the right to sue or apply must be joint and this is the connotation of the expression "jointly entitled to institute a suit". There are instances where persons are entitled to distinct interest but they can only enforce it jointly through one suit and are precluded from bringing separate suits in regard to their separate interest as in the case of a co-mortgagee or Muhammadan co-heirs who are precluded from bringing separate suits in respect of the causes of action arising from transactions that had taken place prior to the death of the deceased. In our view, section 7 will also be applicable to such cases as well. The learned counsel for the appellant then invited our…
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