2000 C L C 285
[Lahore]
Before Nasim Sikandar, J
MANZOOR HUSSAIN ‑‑‑Appellant
versus
WAPDA through Chairman, WAPDA, WAPDA House, Lahore‑‑‑Respondent
Regular Second Appeal No.244 of 1982, decided on 22nd July, 1999.
Abdul Majeed Butt v. United Chemicals Ltd. PLD 1970 Lah. 298 distinguished.
Sh. Naveed Sheharyar for Appellant.
Syed Iftikhar Ahmad for Respondent.
Date of hearing: 29th June, 1999.
JUDGMENT
On 31‑10‑1978, the petitioner filed a suit for recovery of Rs.14,000 before the Civil Court at Mandi Baha‑ud‑Din alleging electricution of his two buffaloes due to negligence of the defendant WAPDA. The recovery was based on his claim that the respondent WAPDA had failed to maintain the electrical installation including poles etc., and therefore, he had to sustain to aforesaid loss. After framing the issues and recording evidence, the Civil Court on 9‑12‑1980 decreed the suit of the plaintiff to the extent of Rs.10,000. Earlier, the objection that the suit was barred by time was rejected. The defendant had claimed that the buffalos were allegedly electricuted on 121.6‑1975 while the suit was filed after more‑than three years on 31‑10‑1978. According to them it should have been filed within three years of the incident. The trial Court did not agree with the defendant that the suit of the plaintiff was governed by Article 49 of the Limitation Act, 1908. Instead it was held that no specific article having provided for the situation before him, the residuary Article 120 of the said Act applied which provided for a limitation of six years. Therefore, the suit was held to have been filed within the prescribed Limit. On merits, as said above, the claim of the plaintiff was allowed to the extent of Rs.10,000.
2. The first appellate authority, the District Judge, Gujrat on 19‑5:1981, however, accepted the appeal and directed dismissal of the suit on the ground that it was covered by Article 22 of the Limitation Act which provided for limitation of one year only. Hence this further appeal
3. The parties have been heard.
4. The learned counsel for the appellant by relying upon re: Abdul Majeed Butt v. United Chemicals Ltd. PLD 1970 Lah. 298 stresses that Article 22 of the Limitation Act did trot attract in this case. Also supports the view earlier expressed by the Civil Court that in such cases residuary Article 120 of the Limitation Act, 1908. applied.
5. The learned counsel for the respondent, however; supports the impugned order.
6. After considering the submissions made at the bar, I will agree that Article 22 providing for 1 year limitation for compensation for an injured, to the person did not apply to the facts in hand. The aforesaid judgment relied upon by the appellant supports the `preposition. However, the finding of the trial Court that in such cases residuary Article 120 applied is certainly incorrect. The plaintiff in this case had primarily alleged non‑feasance on the part of the defendant‑WAPDA for not maintaining the installations in the manner they were required by law to be done. Any damage resulting from a misfeasance i.e. omission on the part of the defendant to do a thing which by law it was required to do, needs to be agitated within two years of the incident as provided by Article 36 of the Limitation Act. It is an established rule that where a particular Article of Limitation Act is attracted, resort to A omni bus or residuary Article cannot be made. It will be seen that besides Article 2, Articles 22yto 36 are of the same genre providing for compensation of different situations. Article 49 of the Act was not applicable in this case inasmuch as there was neither taking away of the property nor an injury was directly caused by the defendant to the buffaloes involved. Article 49 considered to be a general Article applicable in case of “possession of the movable property”. The plaintiff in the case, however, alleged negligence on the part of the defendant to maintain electrical installations wherefrom electricity was being supplied to general consumers. Such kind of cases as said earlier, are covered by Article 36. As the concluding words of the Article indicate, it is also of general nature and provides for all cases of mat‑fesance, misfeasance or non‑feasance independent of contract. The period of two years provided under this Article 8 starts from the moment, an injury on the basis of the alleged teal‑feasance, misfeasance or non-feasence took place..
7. In the present case: admittedly the buffaloes were electricuted on J2‑H‑1973. The suit having been brought after three years was certainly barred by limitation which in this case was two years as provided for in Article 36 Therefore, though for different reasons, I will agree with the first appellant authority that the suit wag barred by limitation.
7. Appeal rejected.
Q.M.H./M.A.K./M‑1209/L Appeal rejected.
