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Report No. 89

37.51.Reason for special provision.- The reason why this special provision was made might be that the wronged person, when alive, might not have found time to take legal steps, and if the starting point is counted immediately from the date of commission of the wrong, then the prescribed period may, in many cases, terminate very soon while the executors, administrators or representatives are still taking time to settle down and to take stock of the situation.

In this context we have considered the question whether the enactment of the Indian Succession Act (which is not referred to in Articles 81 and 83) had any impact on the articles under consideration. It appears that this question can, if necessary, be more conveniently considered when the Succession Act is itself taken up for review by the Law Commission.1

1. Articles 81 and 83 to be considered when the Indian Succession Act, 1925, is taken up for review.

37.52.Article 84.- This takes us to Article 84, which reads as unde.-

"84. Against one who, having a right to use property for specific purposes, perverts it to other purpose.

Two years.

When the perversion first becomes known to the person injured thereby."

It is identical with Article 32 of the Acts of 1908 and 1877.

Article 38 of the Act of 187 was as under:-

"38 Against who, having a right to use property for specific purposes, perverts, it to other purposes.

Two years.

The time of the perversion."

37.53 Articles 85 and 86.- Article 85 is as unde.-

"85. For compensation for obstructing a way or or watercourse.

Three years.

The date of the obstruction."

It is identical with Article 37 of the Acts of 1908 and 1877.

In the Act 1871, Article 37 was as under:

"37. For obstructing a way or watercourse.

Three years.

The date of the obstruction."

Article 86 reads as unde.-

"37. For compensation for diverting watercourse.

Three years.

The date of the diversion."

It is identical with Article 38 of the Acts of 1908 and 1877.

*

Article 32 of the Act of 1871 was as unde.-

"37. For diverting a watercourse.

Three years.

The date of the diversion."

* Some matter seems to be missing.

37.54.The starting point of limitation.- The starting point of limitation under these two articles is the date of the obstruction or the date of the diversion, as the case may be. One learned writer has commented adversely on this poin.- "The starting point of limitation is the date of the obstruction.

If obstruction to way or watercourse is, as has been recognised, a continuing wrong, it is rather difficult to reconcile it with the third column which provides that the starting points of limitation is the date of the obstruction and not the date of the cessation or removal of the obstruction. It is noteworthy that Articles 53, 73, 74 and 90 do provide for commencement of limitation from the date of the cessation of the branch of contract or the wrong, as the case may be. The point is, therefore, not free from difficulty, due perhaps to illogical drafting."1

The above quoted passage referred to a single bench decision from Madhya Pradesh, wherein a suit had been filed to recover mesne2 profits from a trespasser, wrongfully occupying a house, Shri Dayal, J. observed in that cas.-

"The time begins to run from the 'date of tresspass' mentioned in the article which means every date on which the tresspass continues and is not restricted to the date on which tresspass commenced. A suit will be within time for the entire period of tresspass which falls within three years immediately preceding the suit, but not beyond three years."

1. U.N. Mitra's Law of Limitation and Prescription, 9th Edn., p. 1801.

2. Antoolal v. Chitarmal, 1964 MPLJ (Notes) 106.

37.55.No change needed.- We have given thought to the matter. However, if one treats the obstruction as a continuing wrong, it would have the effect of making the cessation of the wrong the starting point. The practical result would not be different from what it is now. No change is, therefore, recommended.

37.56.Article 87.- Article 87 reads as unde.-

"87. For compensation for tresspass upon immovable property.

Three years.

The date of the tresspass."

It is identical with Article 39 of the Acts of 1908 and 1877. In the Act of 1871, Article 43 was as unde.-

"43. For tresspass upon immovable property.

Three years.

When the tresspass takes place."

By the Act of 1877, the words "for compensation" were added in the first column (before the words "For tresspass upon immovable property"). This addition clarified the position that the article is applicable only to suits for damages, and not to suits for recovery of possession.

37.57.No change needed.- As there is no controversy under this article, we do not recommend any change.

37.58.Article 88.- Article 88 reads as unde.-

"88. For compensation for infringing copyright or any other exclusive privilege.

Three years.

The date of the infringement."

It is identical with Article 40 of the Acts of 1908 and 1877. In the Act of 1871, Article 11 was as under:-

"11. For damages for infringing copyright or any other exclusive privilege.

One year.

The date of the infringement."

37.59.Case law on Act of 1871 as to "damages".- The Calcutta High Court,1 dilating upon the word "damages" in the Act of 1871, observed as unde.-

"In my opinion Article 11 of schedule (ii) embraces any suit or action brought under section 22 of the Act XV of 1859, and there was no intention of drawing any distinction between a suit framed as an action for damages, and one framed as a suit for an account. The taking of an account of profits is only a mode of compensating an inventor for the infringement of his privilege other than by an assessment of damages, and it seems unreasonable that if the period of limitation is one year in the one case, it should be six years in the others".

1. Kinmond v. Jackson, 1877 ILR 3 Cal 17 (19).

37.59.View of Dr. Stokes.- This view was also favoured by Dr. Stokes, in the following word.-

"The article should be extended expressly to suits for an account of the profits obtained by infringement.1"

Accordingly, in the Act of 1877, the word 'damages' was replaced by the word 'compensation'.

1. Stokes The Anglo-Indian Codes, Vol. 2, p. 981.

37.60.Period of limitation.- The present period of limitation under Article 88 is three years. Chief Justice Sir Richard Garth and the then Secretary, Legislative Department had made certain comments on Article 11 of the Act of 1871 (which had fixed a period of one year):

"By clause 11, one year only is fixed as the period of limitation in case of infringement of copyright. This, certainly, seems an unreasonably short time. It must be remembered that infringements of copyright are from their very nature frequently, indeed generally, not discovered until long after the infringement has occurred.

It is often the work of months, if not years, to make a book or a piece of music (unless it is of the very striking character) well known to the public; and in the greatest majority of cases, if such book or piece of music is an infringement of some author's copyright the author might probably not hear of the infringement until some time after it had taken place. This is, therefore, one of those instances, as it seems to me, in which it would be right to allow a plaintiff a much longer period of limitation.1"

And again observe.-

"Clause.-The limitation, I think should be three years instead of one.2" Mr. J.H. Nelson state.-

"Article.-Literary piracy is theft. I would make the starting point the discovery of infringement.3"

1. Sir Richard Garth, Demi-Official Letter, dated 8th March, 1876 to Arthur Hobhouse, National Archives File, 1877, Paper No. 1, p. 2.

2. Sir Richard Garth, Demi-Official Letter, dated 24th July, 1876, National Archives File, 1877, Paper No. 1, p. 3.

3. J.H. Nelson, District Judge, Cuddapah, Letter No. 34, dated 2nd April, 1877, National Archives File, 1877, Paper No. 25, p. 8.

37.61. These views were endorsed by the Secretary, Legislative Department, in the following no.-

"No..-Infringement of copyrig.-The Chief Justice objects that the period of one year is too short. So it is, but it was the period prescribed by Act XIV of 1859, section 1, clause 2, and in framing Act IX of 1871, the old periods were, for obvious reasons, kept when possible." "I think we should lengthen the period if we alter the law at all.1"

1. Note by Arthur Hobhouse, Secretary, Legislative Department on Sir Richard Garth's remarks, National Archives, 1877, Paper No. 1, p. 5.



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