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Report No. 89

Chapter 23

Section 23: Acts Not Actionable Without Special Damage

23.1. Section.-Conduct not actionable without special damage.- Section 23 provides that in the case of a suit for compensation for an act which does not give rise to a cause of action unless some "specific injury" actually results therefrom, the period of limitation shall be computed from the time when the injury results. In a sense, it modifies the general rule.

The general rule is that "Limitation runs from the earliest time at which an action could be brought"1. Accordingly, time would, in general, run from the occurrence of the act of omission complained of, and not from the time when the consequential damage causes. However, where specific damage is itself the gist of the cause of action2, this general rule requires qualification. Time should commence to run only when the damage actually results, because the right to sue arises only then.3

1. Reevas v. Buldier, (1891) 2 QB 509 (511).

2. Cf. Article 76 (compensation for slander).

3. See Dwarkanath v. Corporation of Calcutta, 1891 ILR 18 Cal 91 (99)

23.2. The Act of 1877 and illustrations to section 24 of that Act.- The history of the section is of some relevance and may be briefly dealt with. Section 24 in the Limitation Act (15 of 1877) ran as unde.-

"24. In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results.

Illustrations

(a) A owns the surface of a field. B owns the subsoil. B digs coal thereout without causing any immediate apparent injury to the surface, but .at least the surface subsides. The period of limitation in the case of a suit by A against B runs from the time of the subsidence.

(b) A speaks and publishes of B slanderous words not actionable in themselves without special damage caused thereby. C in consequence refuses to employ B as his clerk. The period of limitation in the case of a suit by B against A for compensation for the slander does not commence till the refusal."

23.3. Case law analogous to illustration (a) of section 24 of the Act of 1877.- Illustration (a) of the above section 24 (Act of 1877) was probably dictated by the facts of a House of Lords Judgment1, in which A was the owner of certain houses standing on land which was surrounded by the lands of B, C & D. E was the owner of mines running underneath the lands of all these per sons. E worked the mines in such a manner (without actual negligence) that the lands of B, C and D sank in; and, after more than six years interval, their sinking occasioned an injury to the houses of A. It was held that a right of action accrued to A when this injury actually occurred, and that his right was not barred by the statute of limitations.

This view was affirmed by the House of Lords in a later case2, in which it was held that the cause of action in respect of further subsidence did not arise till the subsidence occurred and therefore, the injured party could maintain an action for the injury thereby caused, although more than six years had passed since the last working of the coal mine.

1. Backhouse v. Bonomi, (1861) 9 HLC 503.

2. Darley Main Colliery Company v. Thomas Bilfried Howe Mitchell, 1866 LR 11 AC 187 (HL).

23.4. Comment regarding slander (1907).- We now come to illustration (b) to the Act of 1877. When the draft of the Act of 1908 was circulated for comments, Sir Lawrence 0. Jenkins, Chief Justice of the Bombay High Court1, suggested the omission of illustration (b) as "it may be open to question whether special damage is necessary in India". This was in the context of slander2.

1. No. 2469, dated 18th Dec., 1907, from the Acting Registrar, High Court, Appellate Side, Bombay to the Secretary to the Government, Judicial Deptt., Bomb.-National Archives File.

2. Cf discussion as to Articles 75-76 (libel and slander), infra.

23.5. Acting upon this suggestion, the Act of 1908 did not repeat illustration (b). When the Act of 1963 was passed even illustration (a) was omitted, in conformity with the general recommendation of the Law Commission to omit illustration1.

1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 8.



The Limitation Act, 1963 Back




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