Dastidar Vs. Shrimati Banjula Dastidar & Anr  Insc 897 (5 December 2006)
Sinha & Markandey Katju
out of S.L.P. (Civil) No. 23472 of 2005] S.B. SINHA, J :
would be the period of limitation for raising a counter claim in respect of
wrongful detention of goods is the question involved in this appeal which
arises out of a judgment and order dated 19.01.2005 passed by the High Court of
Calcutta in F.A. No. 71 of 2002.
and late Kamakshya Kumar, husband of Dipti Dasgupta Respondent No. 2 herein are
brothers. Banjula Dastidar, Respondent No. 1 herein is their sister. They had
one more sister Bulbul Dastidar (who died in November, 1987). A suit was filed
by Respondent No. 1 against the appellant inter alia for declaration of title
in regard to their residential house situate at P-824, New Alipore, Kolkata.
Allegedly, the appellant had put a lock, in a room where Respondent No. 1 Banjula
used to stay, on 16.03.1987. An inventory was made in the said suit by appointing
an Advocate Commissioner. A suit was filed by the appellant thereafter. A
counter claim was filed by Respondent No. 1 in the said suit claiming damages
for wrongful detention of her belongings on 24.06.1992. The amount of claim was
purported to have been made on an allegation that validity of a National Saving
Certificate could not be renewed and, thus, she had suffered a loss of Rs.
88,000/-. She also claimed damages to the tune of Rs. 50,000/- for wrongful
detention of her belongings including garments and personal effects. The suit
was withdrawn. The counter claim, however, was treated to be a suit. It was
the questions which was raised in the appeal was as to whether the said counter
claim was barred by limitation.
Division Bench of the High Court on the premise that Section 22 of the
Limitation Act, 1963 shall be applicable proceeded to hold that the suit was
not barred by limitation.
the learned Judges of the Division Bench although opined that a completed tort
is not a continuing wrong, but held:
is of the very essence of a continuing wrong that it is an act which creates a
continuing source of injury and renders the doer of the act responsible and
liable for the continuance of the injury. If the wrongful act causes an injury
which is complete, there is no continuing wrong through the damage resulting
from the act may continue." In support of its judgment, the Division Bench
has placed strong reliance upon a Division Bench decision of the Calcutta High
Court in Sarat Chandra Mukherjee v. Nerode Chandra Mukherjee and Others [AIR
1935 Calcutta 405]. It was a suit for declaration
of plaintiff's right in respect of user of the lands on which certain sheds had
been created as a passage which was obstructing thereto. It was in that premise
held to be a continuing wrong.
for damages, in our opinion, stands on a different footing vis-`- vis a
continuous wrong in respect of enjoyment of one's right in a property.
right of way is claimed whether public or private over a certain land over
which the tort-feasor has no right of possession, the breaches would be
continuing one. It is, however, indisputable that unless the wrong is a
continuing one, period of limitation does not stop running. Once the period begins
to run, it does not stop except where the provisions of Section 22 would apply.
68, 69 and 91 of the Limitation Act govern suits in respect of movable
property. For specific movable property lost or acquired by theft, or dishonest
misappropriation or conversion; knowledge as regards possession of the party
shall be the starting point of limitation in terms of Article 68. For any other
specific movable property, the time from which the period begins to run would
be when the property is wrongfully taken, in terms of Article 69. Article 91
provides for a period of limitation in respect of a suit for compensation for
wrongfully taking or injuring or wrongfully detaining any other specific
movable property. The time from which the period begins to run would be when
the property is wrongfully taken or injured or when the detainer's possession
possession was said to have been taken over the entire property on 16.03.1987
when the appellant had put a lock in the room. The counter claim was filed by
Respondent No. 1 on 24.06.1992, i.e., five years after the alleged detention.
In the peculiar facts and circumstances of a case of this nature, if Article 91
of the Limitation Act would not apply, the residuary provision would. The fact that
the plaintiff had locker in the room where the almirah containing the goods
belonging to Respondent No. 1 was stored was known to Respondent No. 1 on
16.03.1987. She knew thereabout. If she had to claim damages for that act on
the part of the appellant, she should have filed a suit within a period of
three years from the said date.
Respondent No. 1 knew about the purported alleged wrongful act on the part of
the appellant. She filed an application in the nature of pro intersse suo in
the earlier suit. The same was rejected. Her cause of action was different and
distinct from that of her brother. One lis was in relation to the declaration
of title as also possession, another one was in respect of damages for wrongful
detention of specific movable properties. Only because in another legal
proceedings by and between the appellant and Respondent No. 2, an Advocate
Commissioner was appointed and inventory of the goods of the said room was
prepared, the same, in our opinion, would not give rise to a fresh cause of
action for laying a claim for damages. The matter might have been different if
a suit for possession of the goods had been filed.
therefore, are of the opinion that the impugned judgment cannot be sustained
which is set aside accordingly. The appeal is allowed.
in the facts and circumstances of this case, there shall be no order as to